STATE OF NEW JERSEY VS. RASHAWN BOND (10-03-0288, UNION COUNTY AND STATEWIDE)

S
                                 NOT FOR PUBLICATION WITHOUT THE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-3597-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RASHAWN BOND,

     Defendant-Appellant.
_______________________

                   Argued May 11, 2021 – Decided May 27, 2021

                   Before Judges Yannotti, Mawla, and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 10-03-0288.

                   Roy B. Greenman argued the cause for appellant
                   (Joseph E. Krakora, Public Defender, attorney; Ruth E.
                   Hunter, Designated Counsel, on the brief).

                   Milton S. Leibowitz, Special Deputy Attorney
                   General/Acting Assistant Prosecutor argued the cause
                   for respondent (Lyndsay V. Ruotolo, Acting Union
                   County Prosecutor, attorney; Milton S. Leibowitz, of
                   counsel and on the briefs).

                   Appellant filed pro se supplemental briefs.
PER CURIAM

      Defendant Rashawn Bond appeals from a March 29, 2019 order denying

his motion for reconsideration of a prior order denying his motion for a new

trial. We affirm in part and remand in part for further fact finding by the motion

judge. We also remand for resentencing in accordance with our prior decision

in State v. Bond, No. A-2317-14 (App. Div. Oct. 18, 2017) (slip op. at 18).

      By way of background, defendant, Jamel Lewis, Robert Harris, Titus

Lowery, and Sharif Torres planned to rob Raheem Jackson, who was a drug

dealer and the boyfriend of Tanya Worthy. They planned to stage a robbery and

kidnap Worthy while she was with defendant.

      On the evening of October 28, 2008, Worthy ordered dinner at a restaurant

in Newark, and afterwards she went to defendant's home. Lewis, Harris, Torres,

and Lowery arrived there. They pretended to rob defendant and then kidnapped

Worthy. Lewis and Lowery drove Worthy to Jackson's home in Green Brook.

Defendant was supposed to follow them. He borrowed a car from his girlfriend,

Jasmine Campbell. Defendant, Harris, and Torres drove to Green Brook.

      Lewis and Lowery arrived at Jackson's home. When Jackson opened the

door to his garage, he saw a masked man with a gun exit Worthy's car. The man

told Jackson not to move. Jackson closed and locked the garage door.

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      Defendant and the other perpetrators left Jackson's home. Defendant

drove to Elizabeth, where Worthy's car was set on fire. She was in the back seat.

She had previously been shot and killed. Defendant then traveled back to

Newark, went to his girlfriend's home, returned her car, and handed her a Gu cci

handbag that belonged to Worthy.

      Trial began on April 1, 2014. That day, prior to jury selection, the trial

judge conducted an in camera review of letters produced by the State written by

Sean Williams, a cooperating State's witness. The letters were written to:

Detective Joe Vendas of the Union County Prosecutor's Office and lead

investigator in this matter; an investigator who worked at the Union County jail

in gang intelligence; and the prosecutor trying this case. The prosecutor sought

to redact identifying information about Williams's family before the letters were

turned over. She noted, however, that a letter about Williams's cooperation with

law enforcement "needs to be disclosed . . . ." The trial judge agreed the

redactions were appropriate and the fact of Williams's cooperation was relevant.

      The prosecutor also noted the letters referenced Lewis, who was alleged

to be a South Side Cartel (SSC) gang member. In his letters, Williams claimed

Lewis asked him to retract his statements implicating Lewis and defendant in

the underlying crimes. One of defendant's key defenses at trial was that he


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participated in the underlying crimes under duress by Lewis who had killed

defendant's brother Abdul Billups and defendant's longtime friend Jermaine

Hinnant. The trial judge stated he would review the proposed redactions.

      On April 3, 2014, the trial judge conducted a sealed proceeding during

which Williams's cooperation was discussed. The State disclosed that Vendas

had a "stack" of letters from Williams relating to his cooperation in a federal

case involving the MS13 gang. The State offered to produce them but did not

think they were relevant to defendant's case. The trial judge stated the letters

"had little to do with impeachment of the witness and his credibility . . . [but

could] come up during cross-examination" and therefore could bear upon a trial

issue. The judge granted the State's request for certain redactions.

      On April 8, 2014, defense counsel moved to reconsider the trial judge's

decision regarding the extent of the redactions, arguing the letters were relevant

to Williams's credibility. The judge ruled he would unseal the letters and review

them again in light of the issues involving the SSC, and other cases in which

Williams cooperated.     On April 23, 2014, the judge indicated he received

another set of letters and that he made redactions "in counsel's presence, and

everything ha[d] been turned over," including two letters found the night before.




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      On April 30, 2014, after thirty days of trial, the trial judge announced a

new development, namely, the discovery of notes taken by Vendas during his

initial interview of Williams in December 2009, which had not been produced

before. Following the entry of a protective order, the notes were turned over to

defense counsel.

      On May 7, 2014, defense counsel moved for a mistrial alleging

prosecutorial misconduct relating to the late discovery of Vendas's notes.

Counsel claimed the discovery was "quite exculpatory . . . ." The judge found

the State's late discovery was unintentional and denied the motion.

      At trial, Vendas testified on behalf of the State regarding the investigation,

including his interview of Williams. In our prior decision, we recounted the

following:

                     Vendas's handwritten notes of his "pre-
             interview" with Williams . . . were produced to the
             defense during the trial. Vendas testified he forgot he
             took those notes. He wrote down that Williams told
             him that . . . Lewis[] was associated with the 793 Bloods
             gang, which had an affiliation with the SSC. Williams
             also told him Lewis carried a .357 revolver, which was
             consistent with the caliber of bullets that killed Worthy;
             that . . . Lewis and Billups killed . . . Hinnant; and that
             somebody named "Farad" killed . . . Billups.

             [Bond, slip op. at 4.]



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      Williams testified for the State pursuant to a plea deal. He acknowledged

he was cooperating with other law enforcement agencies in multiple cases,

which he hoped would secure him a reduced sentence. He stated that several

days before the murder, he spoke with Lewis, who told him about a planned

robbery of one of defendant's girlfriends. Williams stated Lewis wanted him to

steal a car for the robbery, and said defendant would pay him to do so. Lewis

did not give Williams any other details regarding the robbery.

      In our prior decision we also noted the following:

                  Williams stated he knew, from growing up in
            Newark, that the [SSC] was a subset of the Bloods gang
            and had a reputation for violence. While he and Lewis
            were in the Union County Jail, Lewis and other
            members of the [SSC] threatened him about his
            statements and testimony in this case. On February 8,
            2012, he wrote a letter to Vendas, which read:

                  To Detective Joe Vendas From Sean L.
                  Williams. I am writing in regards to the
                  recorded statement I gave to you on
                  December 24th, '09 regarding a Mr. Jamel
                  Lewis and Rashawn Bond. I'd like to
                  inform you that any statement or testimony
                  that I gave to the Union County
                  Prosecutor's Office on December 24th, '09
                  is false. Any statement I, Sean Williams,
                  made that is relative to the murder of Miss
                  Tanya Worthy against the defendants
                  Jamel Lewis and Rashawn Bond is false.



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             Williams claimed he wrote the letter at "a time when I
             was gettin' threatened again."

             [Ibid.]

Williams was not asked and did not identify defendant as a member of the SSC.

      Williams testified he wrote over twenty letters to the prosecutor and

detective in his case in order to obtain a better plea deal, and wrote to the

prosecutor and detective in defendant's case complaining defendant's case was

holding up the disposition of Williams's case. The letters were dated from

October 2009 to June 2014, and consistent with his testimony, their contents

ranged from cooperation, to anger at perceived inaction on his behalf, to a desire

to retract his statements.

      Defendant testified he acted under duress from Lewis. He testified "Lewis

was [his] cousin and belonged to the 793 gang, which was affiliated with the

[SSC]." 

Id. at 5

. Defendant claimed Lewis had Billups, who was an SSC

member, killed and afterwards Lewis told defendant "don't be mad at me, but

your brother had to go, we couldn't take no chances of [him] taking us all down."

Ibid.

 Defendant testified that after Billups's murder, Lewis regularly went to

defendant's home and defendant was afraid to ask him to leave. Defendant

testified Lewis also killed Hinnant for giving a statement to police about Lewis.



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      Defendant said he committed the offenses because he was afraid that

Lewis or another member of the SSC would kill him if he did not do what Lewis

asked. He stated after Lewis explained the plan, he "pulled out a .357, put it on

his lap, and said, 'man don't be stupid like your brother, . . . don't make me kill

you . . . .'" 

Ibid.

 (first alteration in original). Defendant testified he did not

refuse because "[t]hat's like committing suicide, man. You know, you just don't

tell a person like that." 

Ibid.

 (alteration in original). Defendant denied killing

Worthy or being present when she died. He claimed he gave Worthy's handbag

to Campbell because Torres put the gun in it, and he did not want to "ride around

with that gun in that car."

      Defendant testified he received a threat from Lewis's brother in June 2009

after defendant decided to tell the truth about what happened to Worthy. He

also received a threat from Roland's brother reminding him what happened to

Billups. The jury also heard testimony from defendant that he had weapons

convictions in 2000 for which he had served two years in prison, that he was

arrested in January 2009 on a separate federal drug charge, served time in federal

prison, and was in protective custody in the Union County jail.

      The trial concluded on May 14, 2014. The jury convicted defendant of

first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree robbery, N.J.S.A.


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                                        8
2C:15-1(a); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); and a lesser

included offense of third-degree receiving stolen property, N.J.S.A. 2C:20-7.

       In November 2014, at the request of defense counsel, the trial judge held

a "brief testimonial hearing" to address, among other things, the State's late

production of Vendas's notes. Defendant moved for a new trial arguing the notes

supported his duress defense and the State was grossly negligent by failing to

produce them until during Vendas's testimony. The judge denied the motion.

Sentencing occurred later that month.

       Defendant appealed from his convictions and sentence in January 2015.

Among other arguments raised on the first appeal, defendant asserted the State

violated Brady v. Maryland1 and breached its duty to provide discovery under

the court rules as related to Vendas's notes. Bond, slip op at 1. We considered

and rejected those arguments as without merit. 

Id. at 17

.

       Defendant also "contend[ed] his sentence is excessive, that the court

engaged in impermissible 'double counting,' and that the court should have

found mitigating factor four (N.J.S.A. 2C:44-1(b)(4): 'There were substantial

grounds tending to excuse or justify the defendant's conduct, though failing to




1
    

373 U.S. 83

 (1963).
                                                                          A-3597-18
                                        9
establish a defense[,' namely, defendant's duress argument).].'" 

Id. at 17

. We

stated:

                   Defendant's argument as to mitigating factor four
            is not persuasive. The court considered defendant's
            duress argument at sentencing and rejected it, just as
            the jury did.

                   We conclude, however, that the sentencing court
            improperly considered the arson in finding aggravating
            factor one.      Defendant was acquitted of arson.
            Nevertheless, the court determined that the arson
            "exhibit[ed] the heinous nature of all the actors in this
            case," including defendant. Because defendant was
            acquitted of arson, the court should not have considered
            that evidence against defendant in applying aggravating
            factor one. See State v. Rogers, 

236 N.J. Super. 378

,
            387 (App. Div. 1989) ("Although a defendant may be
            vicariously accountable for the crimes his accomplice
            commits, he is not vicariously accountable for
            aggravating factors that are not personal to him."),
            aff'd, 

124 N.J. 113

 (1991).

                  Additionally, it appears that the court engaged in
            prohibited "double counting" by considering "the
            gravity and seriousness of harm inflicted on the victim"
            as an aggravating factor. Prohibited "double counting"
            occurs when the court considers one of the required
            elements of the offense charged as an aggravating
            factor. See State v. Yarbough, 

100 N.J. 627

, 633 (1985)
            (finding facts that the Legislature has incorporated into
            the Code as part of the original grading of the offense
            are not to be weighed as aggravating and mitigating
            factors to arrive at the appropriate sentence), cert.
            denied, 

475 U.S. 1014

 (1986).



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                                      10
                  "It is well-settled that where the death of any
            individual is an element of the offense, that fact cannot
            be used as an aggravating factor for sentencing
            purposes." State v. Carey, 

168 N.J. 413

, 425 (2001).
            Thus, because defendant was convicted of felony-
            murder, "the gravity and seriousness of harm" inflicted
            on the victim should not have been considered in
            determining the aggravating factors. 

Id. at 426

. Since
            the court erred in finding aggravating factor two, we
            remand for reconsideration of defendant's sentence in
            the absence of that aggravating factor.

            [Bond, slip op. at 18 (alteration in original).]

Defendant filed a petition for certification that was denied. State v. Bond, 

233

N.J. 18

 (2018).

      While defendant's appeal was pending, defense counsel learned Williams

was a cooperating witness and had testified in 2016 in a federal case involving

the MS13 gang from letters counsel obtained from the Assistant United States

Attorney (AUSA) handling the prosecution.         Also, in January 2018, Farad

Roland entered a guilty plea in a federal RICO case in which Roland admitted

the SSC was a criminal enterprise and that he killed Billups for betraying the

gang. As a result, defendant filed a motion for a new trial based on newly

discovered evidence, which was heard by a different judge.

      The motion judge also noted defendant filed a supplemental brief claiming

Williams's "testimony as a cooperating witness in a [f]ederal MS13 [gang] case


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to the effect that Lewis was a member of a Bloods set, 793[], and the SSC

constitutes new evidence warranting a trial." Defendant also noted Williams

testified before a federal grand jury in 2013, and in a federal trial in 2016 during

which he identified Lewis as a member of the SSC in the 793 set of the Bloods

gang. Williams also stated there were members of the Bloods and MS13 gangs

in the Union County jail, but he had "very very little" knowledge regarding the

latter.

          Defendant asserted the State's failure to disclose Williams's cooperation

in the federal cases against SSC was a Brady violation and the information was

material because it could have been used to impeach Williams's credibility at

trial. Defendant also argued an evidentiary hearing was necessary to determine

whether Union County Prosecutor's Office Detective Harvey Barnwell, who led

the investigation into Hinnant's death, had "information regarding the State's

alleged Brady violation in the untimely disclosure of . . . Vendas'[s] notes from

his first interview with Williams."

          The motion judge denied the motion concluding the parties knew the SSC

was subject to an ongoing investigation "in advance of [d]efendant's trial." The

judge cited the April 1, 2018 pre-trial proceeding in which "defense counsel

raised the issue of the State producing materials received from the U.S.


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                                         12
Attorney's office in this regard." The judge noted the State "had no issue

producing the material" for an in camera review as agreed by counsel.

"Reference was also made that defense counsel had had conversations with . . .

Barnwell . . . already."

      The judge also referenced the April 3, 2014 proceeding during which

Williams's "federal cooperation [was] discussed."          He noted the lack of

comments by defense counsel in the transcript indicated he was not present.

Furthermore, defense counsel informed the motion judge he did not receive the

letters relating to Williams's involvement in the MS13 prosecution from the

State and obtained them through his own efforts afterwards. The judge noted

the April 3 transcript showed the State

             disclose[d] that . . . Vendas has a "stack" of letters from
             . . . Williams relating to his cooperation on a federal
             case involving the gang MS13. . . . A description of the
             letters is provided[,] and the State indicates that it has
             no issue producing them, although a relevancy issue is
             raised. The [c]ourt sustains the relevancy objection
             noting that the court doesn't "know the relevance of . . .
             [Williams] assisting the federal government." . . . The
             State did not violate its Brady obligation in not
             producing this material as the [c]ourt restricted its
             production.

      The judge also reviewed the April 8, 2014 hearing transcript and stated it

showed "the defense was aware of . . . William[s's] federal cooperation," noting


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defense counsel remarked after reviewing the letters the State produced that it

seemed to him there was "a witness here that is cooperating in multiple cases

. . . with the State or the federal government . . . ." The judge noted the trial

judge stated he would reconsider the production of the redacted information .

The motion judge concluded "[t]he MS13 material was not produced due to an

order of the court entered as part of a proceeding apparently procedurally agreed

to by the parties." He concluded defendant could have raised this ruling on the

initial appeal and that we rejected defendant's Brady violation arguments in any

event.

         The judge found Roland's plea in federal court was not grounds for a new

trial because it was nothing new. He noted that at trial defendant testified

Roland "was the leader of the SSC and was involved in his brother's murder."

The judge noted the State did not dispute these contentions and the jury was able

to consider this testimony in its deliberations. Likewise, the judge noted the

jury also heard testimony regarding "[d]efendant's asserted fear of Lewis, and

the reasons for that alleged fear[, which] . . . [d]efendant testified to . . . in

detail." The judge stated: "The fact that Lewis was a violent criminal was before

the jury."

         The judge concluded as follows:


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                                        14
            The jury chose to convict [d]efendant, apparently
            rejecting his version of events as incredible.

                   As charged, an issue at [d]efendant's trial was
            whether a "person of reasonable firmness in a similar
            situation would have been unable to resist" the coercion
            of Lewis or the reputation of the SSC. Defendant's
            testimony in this regard was reasonably found by the
            jury to be incredible and therefore rejected by the jury.
            Having an actual admission of the killing by . . . Roland
            would not make [d]efendant's testimony more credible
            or make the damning testimony of contrary fact
            witnesses, such as . . . Campbell regarding the purse,
            incredible. . . . Roland's plea to what was undisputed at
            [d]efendant's trial is not evidence likely to alter the
            outcome of the trial.

      The judge also found Williams's testimony in the federal MS13 case was

not newly discovered evidence warranting a new trial because Williams's

involvement in the investigation was known before trial and "[d]efense counsel

had seen . . . Williams's letters to the federal prosecutor in this regard during

trial." Moreover, the judge found Williams's testimony that: the SSC was a

violent gang and subset of the Bloods; and Williams was receiving threats in jail

"directed by . . . Lewis" and was in fear for his safety from Lewis, was presented

at defendant's trial. The judge noted "[d]efendant testified that . . . Lewis was a

member of the SSC" and Vendas testified about the nature of the 793 and SSC

in relation to the Bloods.     The judge noted Vendas's testimony "was in

conformity with his late-produced notes of his interview of . . . Williams." The

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judge found defendant could have re-called Williams to the stand after receiving

Vendas's notes, but declined to do so.

      The judge concluded the newly discovered evidence did not constitute a

Brady violation and "the testimony of cooperation would [not have] result[ed]

in a different verdict as . . . Williams testified extensively [at defendant's trial]

concerning his cooperation . . . ." The judge also concluded the trial judge was

aware of the MS13 correspondence and did not abuse his discretion by ordering

it withheld on grounds of relevancy.

      On December 27, 2018, defendant moved for reconsideration. In a written

decision, the judge recounted the trial testimony and the procedural history,

including our decision and the remand for re-sentencing.           He summarized

defendant's claims as follows:

             Defendant contends that evidence of [Roland's] guilty
             plea would corroborate [d]efendant's testimony
             regarding duress.

                   In addition . . . the recent discovery of . . .
             Williams being a cooperating witness in a [f]ederal
             prosecution of the SSC constitutes new evidence . . . .
             Defendant argues that the State's failure to disclose
             Williams'[s] cooperation in the [f]ederal case against
             the SSC was in violation of the State's Brady obligation.
             Defendant contends that this information could have
             been used at trial to impeach Williams'[s] credibility.



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                                         16
                   In a supplemental brief, [d]efendant also argues
            that information concerning . . . William[s's]
            cooperation in a federal investigation of MS13 and his
            testimony as a cooperating witness in that case—to the
            effect that Lewis was a member of a Bloods set, 793[],
            and the SSC—constitutes new evidence warranting a
            trial.

                  Defendant also argues that an evidentiary hearing
            is necessary to flesh out what was known about
            William[s's] cooperation, and who knew it, within the
            Prosecutor's office. In a similar vein, [d]efendant
            argues that the State should be ordered to produce the
            notes of . . . Vendas and Barnwell regarding the
            [d]efendant's proffer sessions. All but one of the
            proffer sessions were recorded and the recordings had
            been turned over to the defense.

      The motion judge rejected defendant's argument that the State failed to

disclose Williams's cooperation in the federal case against the SSC for the same

reasons expressed in his December 24, 2018 decision and made the following

additional findings.

      First, he noted there was no record of the trial judge's decision following

the April 8, 2014 hearing pertaining to Williams's letters regarding his

cooperation with federal and state authorities. The judge noted in the search for

the documents related to the in camera review "[t]wo sealed envelopes relating

to the instant matter with [the trial judge's] writing upon them were found among

[a] co-defendant's trial materials. A third envelope was also found within the


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                                      17
records of [a] co-defendant's trial [materials]. The parties have reviewed and

now possess redacted copies of these records." The judge found as follows:

                  In sum, the federal authorities' investigation into
            the SSC was known to the defense through
            [d]efendant's personal experiences. The [d]efense also
            had a letter where . . . Williams stated that he had
            information pertaining to the SSC and argued to the
            court that . . . Williams may be cooperating with the
            federal government. However, the State did not
            disclose the cooperation to the [d]efense. While the
            State did inquire of . . . Williams at trial if he was
            cooperating with "other" law enforcement agencies
            other than the Union County Prosecutor's Office, one
            question in the midst of trial is not an appropriate
            disclosure.

                   The MS13 material was not produced due to an
            order of the court entered as part of a proceeding
            apparently procedurally agreed to by the parties. The
            material's existence, or . . . William[s]'s cooperation in
            this regard, appears never to have been disclosed to the
            [d]efense. While a direct appeal could have been taken
            by trial counsel in theory, it does not appear that there
            was an actual decision order to appeal. In [defense
            counsel's] letter [seeking reconsideration of the
            December 24, 2018 decision], he represents that the
            MS13 materials were produced to co-defendants in
            their subsequent trial.[] He further represents that
            appellate counsel from the Public Defender's office
            chose not to address the issues surrounding the in
            camera reviews on direct appeal. While this court was
            not provided with the complete appellate submissions
            in this matter, the State does not dispute [defense
            counsel's] assertion and it does not appear that the
            issues raised by [d]efendant concerning . . . Williams
            were addressed on appeal.[]

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                                       18
                        Pursuant to [Rule] 3:22-11 this court has the
                 ability on an application for Post Conviction Relief
                 ("PCR") to allow defendant forty[-]five . . . days to file
                 a direct appeal. While the instant application is one for
                 a new trial, the court chooses, sua sponte, to treat
                 [d]efendant's arguments concerning the failure to
                 provide information concerning . . . William[s]'s
                 cooperation with the federal authorities (in any regard,
                 including the SSC and MS13) as a PCR application
                 seeking leave for appellate review of these issues. This
                 is believed to be a just result as it appears that the
                 timing of [d]efendant's receipt of information pertinent
                 to [d]efendant making an informed decision on the
                 propriety of appealing the issue did not occur until after
                 the time for a direct appeal had passed. The court
                 therefore invokes R[ule] 1:1-2 to secure a just
                 determination, simplify procedure and eliminate
                 unjustifiable delay in this regard.

       The motion judge also rejected defendant's arguments regarding Roland's

guilty plea for the same reasons expressed in the December 2018 decision . The

judge added that "Roland's plea to what was undisputed at [d]efendant's trial is

cumulative of what was presented and is not evidence likely to alter the outcome

of the trial."

       In defendant's counseled brief on this appeal, he raises the following

points:

                 POINT I. THE MOTION COURT SHOULD HAVE
                 GRANTED DEFENDANT A NEW TRIAL BECAUSE
                 THE STATE VIOLATED BRADY, . . . AND ALSO IN
                 ACCORDANCE WITH STATE V. CARTER, 85 N.J.

                                                                              A-3597-18
                                            19
            300, 314 (1981), FOR NEWLY DISCOVERED
            EVIDENCE.

                  A.   The State Was Required To Timely
                  Produce The Requested Material Concerning
                  Lewis's Involvement In The South Side Cartel
                  And Williams' Cooperation Under Brady . . . ,
                  and R. 3:13-3(B).

                        1. Vendas's Notes of First Interview With
                        Williams.

                        2. Williams's Letters to Law Enforcement.

                        3. Excerpt of March 7, 2013 Grand Jury
                        Testimony of Williams in USA V. John
                        Doe.

                  B.   The Motion Court Should Have Granted
                  Defendant's Motion For a New Trial Based On
                  Newly Discovered Evidence.

                  C. At a Minimum, There Should Be A Remand
                  For an Evidentiary Hearing For The Court to
                  Substantively Address Defendant's Arguments
                  Other Than The Newly Discovered Evidence Of
                  Farad's Plea.

            POINT II. IF DEFENDANT'S CONVICTIONS ARE
            NOT VACATED, THE TRIAL COURT MUST
            CONDUCT A RESENTENCING IN ACCORDANCE
            WITH THIS COURT'S RULING.

Defendant's pro se supplemental brief raises the following points:

            POINT I. THE MOTION COURT SHOULD HAVE
            GRANTED DEFENDANT A NEW TRIAL BECAUSE
            THE STATE VIOLATED BRADY . . . .

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                                      20
    A.   THE PROSECUTION KNOWINGLY
    ALLOWED WILLIAMS TO PERJURE HIS
    TESTIMONY    THAT     NO    LAW-
    ENFORCEMENT     AGENCY    AND/OR
    PROSECUTOR'S OFFICE MADE ANY
    PROMISE TO HIM IN RETURN FOR HIS
    COOPERATION.

    B.   THE PROSECUTION KNOWINGLY
    ALLOWED WILLIAMS TO PRESENT FALSE
    TESTIMONY TO THE JURY AS TO THE
    PROMISES MADE TO HIM AND BENEFITS
    HE RECEIVED AS PART OF HIS [FIFTEEN]
    YEARS WITH [EIGHTY-FIVE] PERCENT
    PLEA DEAL.

    C. NEW TRIAL SHOULD BE GRANTED
    BECAUSE THE CUMUL[A]TIVE EFFECT OF
    THE [BRADY] VIOLATIONS CAUSED THE
    DEFENDANT TO RECEIVE AN UNFAIR
    TRIAL.

POINT II.   THE PROSECUTION ARGUMENT
SINCE IT WITHHELD THE [BRADY] MATERIAL
WITH THE APPROVAL OF THE TRIAL COURT NO
[BRADY] VIOLATION CAN BE ESTABLISHED,
OR ALTERNATIVELY IT PROVIDES THE
[BRADY] MATERIAL, THE TRIAL COURT
WOULD HAVE RULED IT INADMISSIBLE IS
CLEARLY WITHOUT MERIT.

POINT III. THE PROSECUTION'S ARGUMENT
BECAUSE     WILLIAMS    WAS    HEAVILY
IMPEACHED DURING DEFENDANT'S TRIAL ANY
ADDITIONAL IMPEACHMENT EVIDENCE IS
IMMATERIAL, IS WITHOUT MERIT.


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Defendant's second pro se supplemental brief raises the following point:

            POINT I. STATE KNOWINGLY SUPPRESSED
            IMPEACHMENT     EVIDENCE     OF    THE
            PROSECUTION'S KEY WITNESS IN VIOLATION
            OF BRADY[] DENYING DEFENDANT A FAIR
            TRIAL.

                                         I.

      "[A] motion for a new trial is addressed to the sound discretion of the trial

judge, and the exercise of that discretion will not be interfered with on appeal

unless a clear abuse has been shown." State v. Russo, 

333 N.J. Super. 119

, 137

(App. Div. 2000) (citations omitted).         "Appellate review is limited to a

determination of whether the trial court could reasonably have reached the

findings it made based on 'sufficient credible evidence . . . in the record.'" State

v. Van Ness, 

450 N.J. Super. 470

, 496 (App. Div. 2017) (alteration in original)

(quoting State v. Brooks, 

366 N.J. Super. 447

, 454 (App. Div. 2004)).

      Generally, motions for a new trial based on newly discovered evidence

are disfavored and granted with caution because they disrupt the judicial

process. State v. Conway, 

193 N.J. Super. 133

, 171 (App. Div. 1984). A motion

seeking a new trial based on newly discovered evidence, requires that

            defendants must show that the evidence (a) is material,
            and not merely cumulative, impeaching, or
            contradictory; (b) was discovered since the original
            trial, and was not discoverable by reasonable diligence

                                                                              A-3597-18
                                        22
            prior thereto[;] and (c) is of the sort which would
            probably change the jury's verdict if a new trial were
            granted.

            [Ibid. (quoting Carter, 

85 N.J. at 314

).]

Evidence is material if it would "have some bearing on the claims being

advanced." State v. Henries, 

306 N.J. Super. 512

, 531 (App. Div. 1997) (quoting

Korostynski v. Div. of Gaming Enf't, 

266 N.J. Super. 549

, 555 (App. Div.

1993)).

      In Brady, the Supreme Court of the United States held "the suppression

by the prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution." 

373 U.S. at 87

.

"Due process requires that the State disclose information it possesses which is

material to the defense, even where it concerns only the credibility of a State's

witness." State v. Spano, 

69 N.J. 231

, 235 (1976) (citations omitted).

      "In order to establish a Brady violation, the defendant must show that: (1)

the prosecution suppressed evidence; (2) the evidence is favorable to the

defense; and (3) the evidence is material." State v. Martini, 

160 N.J. 248

, 268-

69 (1999) (citing Moore v. Illinois, 

408 U.S. 786

, 794-95 (1972)).

"Nondisclosure of evidence favorable to the accused violates the constitutional


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                                      23
right of due process only 'where the evidence is material to guilt or punishment.'"

State v. Carter, 

91 N.J. 86

, 112 (1982) (quoting Brady, 

373 U.S. at 87

). Evidence

is material "if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different."

Kyles v. Whitley, 

514 U.S. 419

, 433-34 (1995) (quoting United States v. Bagley,

473 U.S. 667

, 682 (1985)).

      In points I and II of his counseled brief, points I, II, and III of his pro se

brief, and point I of his second pro se brief, defendant argues the trial court erred

by failing to find Brady/Carter violations for the State's failure to timely produce

exculpatory and impeachment evidence, namely, Vendas's notes, Williams's

letters to law enforcement, and Williams's grand jury testimony in the federal

case. At the outset, as we noted, we have already addressed and rejected as

without merit defendant's arguments relating to Vendas's notes. Bond, slip op

at 17. For these reasons, we decline to revisit this issue.

      Defendant argues the motion judge should have granted a new trial

because of the State's failure to provide a transcript of Williams's testimony

before a federal grand jury in the MS13 prosecution. He asserts Williams's

testimony "connected Lewis to the [SSC], which was an important piece to

defendant's duress defense" and the information was exculpatory and material.


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Defendant argues Williams's testimony would have corroborated his own

testimony about Lewis and the SSC.

      Williams told the grand jury he met with an AUSA at the Union County

Prosecutor's Office and the attorney advised Williams he could not promise

anything with respect to his pending case. However, the AUSA told Williams

he would make known to whomever his attorney deemed appropriate the fact

that he had cooperated.

      The transcript of Williams's testimony does not mention the SSC or Lewis

and does not support the argument Williams's testimony would have

corroborated defendant's duress claim. Moreover, Williams's testimony was

part of an unrelated federal proceeding and there is no indication the State was

in actual or constructive possession of the transcript during or after defendant's

trial. The testimony provided no additional information and would not have

affected the outcome. Therefore, the federal grand jury transcript lacked the

materiality required under Brady and the motion judge did not abuse his

discretion.

      Defendant argues the court erred by denying his motion for a new trial

pursuant to Carter due to the State's failure to timely produce the following:

Williams's 2014 sentencing transcript, the 2015 transcript of his interview with


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State and federal law enforcement, and his 2016 trial testimony in a federal trial;

and the transcripts of Roland's guilty plea and sentencing. Defendant claims

Roland's admission during the guilty plea that he killed Billups was "strong

evidence" of duress, which would "probably change the jury's verdict." He also

argues Williams's sentence and his testimony in a federal matter were relevant

because it showed he cooperated in return for a "significant and unusual

benefit."

      These arguments lack merit. Roland's guilty plea was immaterial because

it was cumulative, and we are unconvinced the information would have changed

the jury's verdict because evidence relating to the SSC, Roland, and Billups's

murder was already in evidence for the jury to consider. Williams's and Roland's

sentencing transcripts were not material because they did not exist at the time of

trial. Williams's testimony in the federal case was also cumulative because the

jury here already heard testimony alleging Lewis was a member of the 793 gang,

he cooperated with the government in another SSC case, he made threats against

defendant in jail through other gang members, and that some members of the

SSC were violent criminals.

      Although defendant did not brief his arguments regarding Williams's 2015

recorded interview with law enforcement and the AUSA, the redacted transcript


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                                       26
of the interview in the record confirms the AUSA offered to write a letter to the

judge about Williams's cooperation, which also is cumulative and not material.

As the motion judge noted, Williams testified in defendant's case that he was

cooperating "with other jurisdictions" with the hope it would lead to a reduction

of his sentence.

      We reach a different conclusion regarding the matter of Williams's letters.

As we noted, the motion judge found there was no order entered by the trial

judge adjudicating defendant's claims regarding the late provision of Williams's

letters detailing his cooperation. He also noted the State did not disclose the

cooperation or the nature of the cooperation to the defense before trial. The

motion judge further noted this was an issue that was not raised on the initial

appeal and essentially created an avenue for appeal by citing Rule 3:22-11, but

did not adjudicate the issue.

      Rule 3:22-11 states:

            The court shall make its final determination [on a PCR]
            not later than [sixty] days after the hearing or, if there
            is no hearing, not later than [sixty] days after the filing
            of the last amended petition or answer, with discretion
            to extend the final determination an additional [thirty]
            days, if approved by the Criminal Presiding Judge. In
            making final determination upon a petition, the court
            shall state separately its findings of fact and
            conclusions of law, and shall enter a judgment, which
            shall include an appropriate order or direction with

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            respect to the judgment or sentence in the conviction
            proceedings and any appropriate provisions as to
            rearraignment, retrial, custody, bail, discharge,
            correction of sentence, or as may otherwise be required.
            When a defendant raises a claim pursuant to [Rule]
            3:22-2(e), the court is authorized to allow defendant
            [forty-five] days from entry of an order granting
            defendant's petition for post-conviction relief to file a
            direct appeal.

      We have stated: "Petitions for post-conviction relief cannot be disposed

of out of hand." State v. Odom, 

113 N.J. Super. 186

, 189 (App. Div. 1971); see

also State v. Flores, 

228 N.J. Super. 586

, 590 (App. Div. 1988) (citing Rule

3:22-11 and noting a "prefer[ance for] a more detailed statement of reasons

supporting [a PCR court's] determination" rather than "summary treatment of

the questions raised by defendant in his petition.").

      Here, despite the motion judge's acknowledgement there was no

disposition of defendant's claims regarding Williams's letters by the trial judge,

the motion judge failed to make findings of fact and conclusions of law of his

own as required by Rule 1:7-4 and Rule 3:22-11. Instead, citing Rule 3:22-11,

the judge seemingly granted defendant an avenue of appeal without disposing

of the issue of Williams's letters. Our jurisdiction is defined by Rule 2:2-3,

which requires trial courts to dispose of all issues before we can consider them .

A trial court cannot vest jurisdiction upon us. For these reasons, we remand


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defendant's claims of Brady/Carter violations relating to Williams's letters to the

motion judge for reconsideration, including whether there should be an

evidentiary hearing.    In doing so, we express no opinion on the merit of

defendant's claims relating to Williams's letters or if there should be an

evidentiary hearing.

      Defendant's arguments that the State suborned perjury and false testimony

lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

To the extent we have not addressed any other argument raised by defendant it

is because it lacks merit as well.

                                        II.

      Finally, defendant argues that if his convictions are not vacated, the matter

should be remanded for resentencing in accordance with our prior decision. The

State agrees. For these reasons, the matter is remanded for resentencing in

accordance with our decision on the initial appeal.

      Affirmed in part and remanded in part. We do not retain jurisdiction.




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