The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1668-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAQUAN L. LEE, a/k/a JAQUAN
JULIUS LEE, JACQUAN LEE,
JAQUEAN J. LEE, JAKWAN J.
LEE, JAKWAN LARRY LEE, and
JAKWAM L. LEE,
Defendant-Appellant.
_____________________________
Submitted April 10, 2024 – Decided April 26, 2024
Before Judges Firko, Susswein and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 07-12-1019.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Robert C. Pierce, Designated Counsel, on the
briefs).
William C. Daniel, Union County Prosecutor, attorney
for respondent (Michele C. Buckley, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jaquan L. Lee appeals from a November 18, 2021 oral decision
and subsequent November 23 memorializing order denying his second petition
for post-conviction relief (PCR) and motion for a new trial. Based on our careful
review of the record, we affirm, as defendant's assertions have either already
been fully litigated or are procedurally time-barred.
The salient facts and procedural history were previously detailed in our
decision on defendant's direct appeal, State v. Lee (Lee I), Nos. A-2842-10, A-
3813-10 (App. Div. Aug. 12, 2013). We briefly summarize only the facts
material to our determination of defendant's second PCR appeal.
Defendant was involved in three robberies. The first robbery occurred
after midnight on July 30, 2007. Two teenagers were walking in Elizabeth when
a white sedan stopped in the middle of the street. The car drove off and a few
minutes later, the teenagers were approached by three men armed with a
shotgun. The men robbed the boys of their cell phones, iPod, and cash.
A few minutes later, the men robbed three friends who were out
celebrating a twentieth birthday. The men threatened the friends with shotguns
and took a purse, car keys, a wallet, and a passport. Shortly after that, the men
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approached a group of teenagers outside. The men had shotguns and took
phones, wallets, cash, and IDs from several of the teenagers.
Witnesses to the robberies described one of the robbers as a short, stocky
man with dreadlocks. Witnesses said this robber was wearing a blue bandana
around his mouth and nose and a hoodie. Witnesses also said this robber was
holding the shotgun. The other two men were described as taller and slimmer,
with one wearing a Detroit Lions hat.
Police were called after each robbery and had descriptions of the robbers,
their vehicle, and their license plate. Two Elizabeth police officers on patrol,
Guillermo Valladares and Jose Torres, observed the vehicle as well as four
individuals near the vehicle. The officers arrested defendant and Tony Canty,
while the other two individuals fled the scene. When defendant was arrested,
he was wearing a Detroit Lions hat. Canty was wearing a blue bandanna.
The two officers searched the vehicle and seized two sawed-off shotguns.
They also seized several bags of vegetation, a Detroit Lions jacket, a wallet, and
a pocketbook and social security card belonging to Sade Ingram — the woman
driving the vehicle at the time of the robberies — who was in a relationship with
defendant.
On December 6, 2007, a grand jury charged defendant with eight counts
of first-degree robbery, N.J.S.A. 2C:15-1 (counts one through eight); two counts
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of third-degree unlawful possession of a weapon without a proper license,
N.J.S.A. 2C:39-5(c)(1) (counts nine and ten); two counts of third-degree
unlawful possession of a weapon, a loaded shotgun, N.J.S.A. 2C:39-5(c)(2)
(counts eleven and twelve); third-degree possession of a prohibited weapon, a
sawed-off shotgun, N.J.S.A. 2C:39-3(b) (counts thirteen and fourteen); two
counts of second-degree possession of a weapon for unlawful purpose, N.J.S.A.
2C:39-4(a)(1) (counts fifteen and sixteen); and third-degree receipt of stolen
property, N.J.S.A. 2C:20-7 (count seventeen). In a separate indictment,
defendant was also charged with a second-degree weapons charge under
N.J.S.A. 2C:39-7.
Count seventeen was dismissed prior to trial. On June 17, 2010, the jury
found defendant guilty on all remaining counts. Defendant appealed his
conviction. We affirmed the conviction but remanded for resentencing. Lee I,
slip op. at 38. On September 20, 2013 defendant was resentenced to fifteen
years with an eighty-five percent parole ineligibility period pursuant to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on counts one and two; ten
years with an eighty-five percent parole ineligibility period pursuant to NERA
on counts three, four, and five to run consecutively with count one; ten years
with an eighty-five percent parole ineligibility period pursuant to NERA on
counts six, seven, and eight to run consecutively with count one and three. On
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counts nine, ten, eleven, twelve, thirteen, and fourteen, the sentence of four years
remained unchanged and was to run concurrently with count one. Counts fifteen
and sixteen merged into counts one through eight. We heard defendant's appeal
on our sentencing calendar pursuant to Rule 2:9-11 and affirmed. State v. Lee
(Lee II), No. A-2141-13 (App. Div. Apr. 7, 2014).
On October 27, 2014, defendant filed a PCR petition, which the first PCR
court denied on January 5, 2018. We affirmed the first PCR court's order
denying defendant's petition on July 21, 2020. State v. Lee (Lee III), No. A-
3209-17 (App. Div. Jul. 21, 2020). The Supreme Court denied certification.
State v. Lee, 244 N.J. 434 (2020).
On September 21, 2020, defendant filed a second PCR petition and a
motion for a new trial based on newly discovered evidence. In his second PCR
petition, defendant argues he was denied effective assistance of counsel because
his counsel failed to consult with a DNA expert. Defendant also argues that he
was prejudiced at trial because he was unaware of an internal affairs (IA)
investigation regarding an off-duty incident involving Sergeant Michael
Sandford of the Union County Police Department, who testified at the trial as a
firearms expert. Defendant's second PCR petition and motion for new trial was
denied in an oral decision November 18, 2021 following a non-evidentiary
hearing. A memorializing order was entered on November 23, 2021.
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The second PCR court found that, on appeal from denial of his first PCR
petition, we addressed defendant's allegation his trial counsel was deficient for
failing to spend sufficient time reviewing the DNA evidence with him during
trial. The second PCR court also held that we previously found no error in the
first PCR court's decision there was no evidence to support defendant's argument
his trial counsel failed to discuss a last-minute plea negotiation with him.
Further, the second PCR court found that defendant's argument his trial counsel
was ineffective for failing to seek a jury instruction regarding Ingram's
admission was clearly raised on direct appeal.
Finally, the second PCR court found that Sandford's IA investigation did
not constitute newly discovered evidence as to warrant a new trial. The IA
investigation was twenty-two years old and the incident surrounding the
investigation occurred when Sandford was off duty. The second PCR court also
found that Sandford's testimony was limited and not material.
This appeal followed. Defendant raises the following arguments for our
consideration:
POINT I
SAN[D]FORD'S [IA] INVESTIGATION WAS
GERMANE TO A CASE RESTING LARGELY ON
WITNESS CREDIBILITY; WHETHER TREATED
AS A MOTION FOR [A] NEW TRIAL OR AS AN
ADDITIONAL GROUND FOR PCR, [DEFENDANT]
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RAISED A VALID ISSUE AND WAS ENTITLED TO
RELIEF.
A. [DEFENDANT] ESTABLISHED GROUNDS
FOR [A] NEW TRIAL.
B. [DEFENDANT] ESTABLISHED GROUNDS
FOR [PCR].
C. THE TRIAL COURT ERRED BY NOT
ORDERING AN EVIDENTIARY HEARING.
POINT II
THERE WAS NO DECISION CONCERNING
[DEFENDANT'S] ALLEGATION THAT TRIAL
COUNSEL WAS INEFFECTIVE FOR FAILING TO
OBTAIN A DNA EXPERT.
POINT III
THE FIRST PCR APPELLATE COUNSEL FAILED
TO REQUEST A JURY INSTRUCTION ABOUT
SADE INGRAM'S ADMISSION.
POINT IV
THE FIRST PCR APPELLATE COUNSEL FAILED
TO PURSUE THE SPEEDY TRIAL ISSUE.
I.
Defendant argues he is entitled to a new trial based on newly discovered
evidence. Sargeant Sandford, the officer who testified to the shotgun and rounds
from the vehicle used during the robberies, was subject to a 1988 IA
investigation regarding a firearm which found that during an off-duty altercation
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Sandford's weapon fell to the ground. Sandford reported that he immediately
picked up the weapon. The IA investigation concluded that Sandford was not
truthful in his reports, and another individual actually found the weapon and
returned it to him.
Defendant argues that Sandford has a history of "(1) losing a firearm, (2)
lying about the loss, and (3) conspiring with other law enforcement agents to
conceal the truth." Defendant argues that because the firearm at issue in his case
was analyzed by Sandford, the newly discovered evidence of Sandford's prior
history could have been used to challenge the chain of custody and the material
elements of this offense.
The State argues the second PCR court properly denied defendant's
motion because the judge considered all the evidence and applied the factors set
forth in Brady v. Maryland, 373 U.S. 83 (1963), and State v. Carter, 85 N.J. 300,
(1982)1.
1
In State v. Carter, our Court remanded the matter back to the Law Division "to
take further testimony and make findings of fact" to determine whether the
Brady rule was violated. 85 N.J. at 315-16. Our Court retained jurisdiction. Id.
at 316. On remand, the Law Division "held extensive hearings and submitted
detailed findings . . . [and] found that there was no Brady violation, and that a
new trial was not warranted." State v. Carter, 91 N.J. 86, 95 (1982). Our Court
then affirmed. Id. at 131.
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"A motion for a new trial based on the ground for newly[]discovered
evidence may be made at any time, but if an appeal is pending, the court may
grant the motion only on remand of the case." R. 3:20-2. Our Supreme Court
has stated repeatedly that to qualify as newly
discovered evidence entitling a party to a new trial,
the new evidence must be (1) material to the issue and
not merely cumulative or impeaching or contradictory;
(2) discovered since the trial and not discoverable by
reasonable diligence beforehand; and (3) of the sort that
would probably change the jury's verdict if a new trial
were granted.
[Carter, 85 N.J. at 314 (citing State v. Artis, 36 N.J.
538, 541 (1962)).]
"The Brady disclosure rule applies to information of which the
prosecution is actually or constructively aware." State v. Nelson, 330 N.J.
Super. 206, 213 (App. Div. 2000). "[T]he individual prosecutor has a duty to
learn of any favorable evidence known to the others acting on the government's
behalf . . . ." Kyles v. Whitley, 514 U.S. 419, 437 (1995). On the other hand,
"showing that the prosecution knew of an item of favorable evidence unknown
to the defense does not amount to a Brady violation, without more." Id. at 437-
38. "[W]hether the prosecutor succeeds or fails in meeting this obligation . . .
the prosecution's responsibility for failing to disclose known,
favorable evidence rising to a material level of importance is inescapable." Ibid.
9 A-1668-21
The analysis for a new trial under Brady and Carter differs slightly, in
that the threshold for materiality under the latter is "more stringent." State v.
Henries, 306 N.J. Super 512, 534 (App Div. 1997). "[D]efendant must establish
that the evidence must not only have not been discovered until after trial, but
could not have been with due diligence." Ibid. "The critical issue . . . is whether
the additional evidence probably would have affected the outcome, regardless
of whether it is characterized as impeachment evidence." Id. at 535.
Under the first prong of Carter, "[m]aterial evidence is any evidence that
would 'have some bearing on the claims being advanced.'" State v. Ways, 180
N.J. 171, 188 (2004) (quoting Henries, 306 N.J. Super. at 531). "Determining
whether evidence is 'merely cumulative['] . . . and, therefore, insufficient to
justify the grant of a new trial requires an evaluation of the probable impact such
evidence would have on a jury verdict." Id. at 188-89.
Under the second prong, "new evidence must have been discovered after
completion of trial and must not have been discoverable earlier through the
exercise of reasonable diligence." Id. at 192. Prong two "encourage[s]
defendants and attorneys to act with reasonable dispatch in searching for
evidence before the start of the trial." Ibid.
Finally, under prong three:
The characterization of evidence as "merely
cumulative, or impeaching, or contradictory" is a
10 A-1668-21
judgment that such evidence is not of great
significance and would probably not alter the
outcome of a verdict. However, evidence that
would have the probable effect of raising a
reasonable doubt as to the defendant's guilt
would not be considered merely cumulative,
impeaching, or contradictory.
[Id. at 189.]
The second PCR court agreed with the State's position that the newly
acquired evidence of the IA investigation regarding Sandford's off-duty incident
was not material. The second PCR court found the IA investigation regarding
the off-duty incident was twenty-two years old and Sandford was testifying at
trial in his official capacity as a firearms expert. The second PCR court
concluded Sandford's credibility was not an issue at trial because he was only
there to provide limited testimony and knew nothing about the facts of the case.
At trial, Sandford testified only as to his examination of the involved weapons
since he did not participate in the arrest of defendant and was only asked to
provide an opinion after viewing the firearms.
We hold the newly discovered evidence was not material to defendant's
case and would not probably change the jury's verdict if a new trial were granted.
Under Brady and Carter, defendant has not shown that the prosecution purposely
withheld material information related to Sandford's IA investigation. Therefore,
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we reject defendant's claim that he is entitled to another trial on the grounds of
newly discovered evidence.
II.
Defendant argues ineffective assistance of counsel because his trial
counsel failed to obtain a DNA expert. He also asserts his first PCR counsel
failed to request a jury instruction about Ingram's admission and failed to pursue
a speedy trial.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard also applies to
mixed questions of law and fact. Id. at 420. Where an evidentiary hearing has
not been held, we "conduct a de novo review of both the factual findings and
legal conclusions of the PCR court." Id. at 421.
PCR "is New Jersey's analogue to the federal writ of habeas corpus." State
v. Afanador, 151 N.J. 41, 49 (1997) (citing State v. Preciose, 129 N.J. 451, 459
(1992)). It is the vehicle through which a defendant may, after conviction and
sentencing, challenge a judgment of conviction by raising issues that could not
have been raised on direct appeal and, therefore, "ensures . . . a defendant was
not unjustly convicted." State v. McQuaid, 147 N.J. 464, 482 (1997).
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To establish a prima facie case of ineffective assistance of counsel,
defendant must satisfy the two-prong test articulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . .
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting
Strickland, 466 U.S. at 687). Defendant must then show counsel's "deficient
performance prejudiced the defense." Ibid. To show prejudice, defendant must
establish by "a reasonable probability" that the deficient performance
"materially contributed to defendant's conviction." Id. at 58.
We need not address whether defendant's second PCR petition meets the
Strickland standard as we affirm the second PCR court's conclusion defendant's
petition is time-barred under Rule 3:22-12(a)(2). Second or subsequent PCR
petitions must comply with the requirements of Rule 3:22-4(b) and Rule 3:22-
12(a)(2). To avoid dismissal of a second—or subsequent—PCR petition, the
petition must be timely filed under Rule 3:22-12(a)(2). R. 3:22-4(b)(1). Rule
3:22-4(b) contains no exceptions to the time-bar for second or subsequent PCR
petitions. Rule 3:22-12(a)(2)(C) specifically provides "no second or subsequent
petition shall be filed more than one year after . . . the date of the denial of the
first . . . application for [PCR]" based on ineffective assistance of counsel. An
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appeal of defendant's first PCR petition does not toll the time limitation of Rule
3:22-12. State v. Dillard, 208 N.J. Super. 722, 727 (App. Div. 1986); see State
v. Dugan, 289 N.J. Super. 15, 19 (App. Div. 1996).
Defendant was required to file his second PCR petition within one year of
January 5, 2018, the date his first PCR petition was denied. However, he did
not file his second PCR petition until September 21, 2020, and, therefore, the
trial court did not err in concluding it is time-barred under Rule 3:22-
12(a)(2)(C).
Moreover, notwithstanding that defendant's second PCR petition is
procedurally time-barred, we previously rejected defendant's claim the
instructions given to the jury were erroneous on direct appeal, where we found
there was no plain error. In our opinion regarding his first PCR petition, we
addressed defendant's argument that his trial counsel was ineffective for failing
to consult a DNA expert. Since these claims were previously adjudicated, they
are barred under Rule 3:22-5. Additionally, the first PCR court rejected
defendant's argument that his trial counsel's failure to pursue a speedy trial
amounted to ineffective assistance of counsel. Since defendant did not address
this issue on his first PCR appeal, we deemed it waived. Sklodowsky v. Lushis,
417 N.J. Super. 648, 657 (App. Div. 2011).
14 A-1668-21
Because defendant has not satisfied the factors set forth in Brady or Carter
for a new trial based on newly discovered evidence and defendant's second PCR
petition was not filed within the time limitation proscribed under Rule 3:22-
12(a)(2), we affirm the second PCR court's order.
Affirmed.
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