SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2052-20

STATE OF NEW JERSEY, 

Plaintiff-Respondent,

v.

ALLEN M. ESSNER, a/k/a

ALLEN ESSNER, 

Defendant-Appellant.

________________________

Submitted September 20, 2022 – Decided October 13, 2022

Before Judges Geiger and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Morris County, Indictment No. 97-11-1245.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Stefan Van Jura, Assistant Deputy Public 

Defender, of counsel and on the brief).

Robert J. Carroll, Morris County Prosecutor, attorney 

for respondent (Tiffany M. Russo, Assistant 

Prosecutor, on the brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Allen Essner appeals from a March 1, 2021 Law Division order 

denying his motion for either a new trial or resentencing based on newly 

discovered evidence. In 1999, defendant was convicted by a jury for the murder 

of his affair partner's husband. Defendant was twenty-six years, ten months old 

at the time of the homicide in 1997. The gravamen of his trial defense was that 

the shooting was accidental. He now contends that scientific studies pertaining 

to the development of the adolescent brain constitute newly discovered evidence 

warranting a new trial. In the alternative, he argues that he is entitled to 

resentencing pursuant to Rule 3:21-10(b) based on scientific research that 

shows, among other things, that juveniles are more amenable to rehabilitation 

than adults. Judge Stephen J. Taylor denied defendant's motion, rendering a 

thirteen-page written opinion. We affirm substantially for the reasons explained 

in Judge Taylor's cogent and comprehensive opinion. 

I.

We discern the following facts and procedural history from the record. 1 

This case arises from the July 1997 killing of Antonio Messina. Defendant and 

1

 The pertinent facts concerning the murder are thoroughly recounted in our 

November 22, 2002 direct appeal opinion and need not be repeated at length in 
3

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Antonio became friends while taking classes at Lincoln Technical School in 

1996. Antonio was married and introduced defendant to his wife, Kathleen. In 

the summer of 1996, defendant and Kathleen began an extramarital affair. In 

October 1996, Antonio became aware of the affair, which resulted in several 

altercations between Antonio and defendant. Despite the discord, defendant and 

Kathleen continued an on-and-off affair until the summer of 1997. 

On July 3, 1997, Kathleen ended the affair and told defendant that she was 

returning to her husband. Two days later, defendant went to the Messinas' home, 

peered through a downstairs window, and overheard the couple talking. The 

Messinas then proceeded upstairs, and defendant presumed they were going to 

be intimate. Upset by what he saw, defendant left and drove to his grandmother's 

home approximately sixty miles away. He returned to the Messinas' home in 

the early morning hours armed with a shotgun. Defendant waited outside to 

confront Antonio when he left for work. When Antonio exited his home, 

defendant approached him with his finger on the trigger of the shotgun. During 

the confrontation, Antonio was shot in the head with a shotgun blast and died.

this opinion. See State v. Essner, No. A-2498-99 (App. Div. Nov. 22, 2002) 

(slip op. at 2–9). 
4

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Defendant fled the scene and was later arrested by police following a brief 

investigation. After being given Miranda2 warnings and signing a waiver form, 

defendant was questioned by police and confessed to shooting Antonio, although 

he claimed the shooting was accidental. In his statement, defendant claimed he 

only wanted to talk to Antonio and brought the gun to avoid getting into a fight. 

Defendant was born on September 4, 1970, making him twenty-six years and 

ten months old at the time of the shooting. 

Defendant was charged by indictment with knowing or purposeful murder, 

N.J.S.A. 2C:11-3, and possession of a shotgun for an unlawful purpose, N.J.S.A. 

2C:39-4(a). He was tried before a jury in October 1999 and found guilty of both 

charges. The trial judge sentenced defendant to a fifty-year term of 

imprisonment, subject to the eighty-five percent period of parole ineligibility 

prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. 

In 2001, the Supreme Court held that the original version of NERA—

which was in effect when defendant committed the homicide—did not apply to

the crime of murder. State v. Manzie, 168 N.J. 113 (2001). On direct appeal, 

we affirmed defendant's convictions but remanded for resentencing to replace 

2

 Miranda v. Arizona, 384 U.S. 436 (1966). 
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the NERA period of parole ineligibility with that prescribed by N.J.S.A. 2C:11-

3(b)(1). State v. Essner, No. A-2498-99 (App. Div. Nov. 22, 2002) (slip op. at 

15), certif. denied, State v. Essner, 175 N.J. 547 (2003). In December 2002, 

defendant was resentenced to a fifty-year term of imprisonment with a thirtyyear period of parole ineligibility as required by N.J.S.A. 2C:11-3(b)(1).

3

Defendant thereafter filed a petition for post-conviction relief (PCR), 

which was denied. In February 2009, we affirmed the denial of defendant's 

PCR, State v. Essner, No. A-3354-06 (App. Div. Feb. 2, 2009) (slip op. at 7), 

and the Supreme Court denied certification, State v. Essner, 199 N.J. 541 (2009). 

On August 20, 2019, defendant filed a pro se brief seeking a new trial 

based on newly discovered evidence. In October 2020, defendant was appointed 

counsel to represent him in the new trial motion litigation. Judge Taylor 

convened oral argument on defendant's motion on February 26, 2021. On March 

3

 N.J.S.A. 2C:11-3(b)(1) provides:

Murder is a crime of the first degree but a person 

convicted of murder shall be sentenced . . . by the court 

to a term of [thirty] years, during which the person shall 

not be eligible for parole, or be sentenced to a specific 

term of years which shall be between [thirty] years and 

life imprisonment of which the person shall serve 

[thirty] years before being eligible for parole.
6

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1, 2021, the judge issued an order and accompanying written opinion denying 

the motion. 

This appeal follows.4 Defendant raises the following contentions for our 

consideration:

POINT I

DEFENDANT IS ENTITLED TO A NEW TRIAL 

BECAUSE MATERIAL, NEWLY DISCOVERED 

EVIDENCE WOULD PROBABLY HAVE 

CHANGED THE JURY'S VERDICT. 

POINT II

THE COURT ERRED IN DENYING DEFENDANT'S 

MOTION FOR RE-SENTENCING BECAUSE THE 

50-YEAR SENTENCE IMPOSED ON THIS 

YOUTHFUL DEFENDANT, WITHOUT 

CONSIDERATION OF THE BEHAVIORAL 

SCIENCE COUNSELING AGAINST SUCH 

IMPOSITION, CONSTITUTES CRUEL AND 

UNUSUAL PUNISHMENT. U.S. Const. Amend. VIII, 

XIV; N.J. Const. Art. I, Par. 12.

4

 This appeal originally was scheduled to be heard on a Sentence on Appeal 

(SOA) Calendar. We moved the matter to the plenary calendar and ordered 

briefing.
7

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II.

We begin our analysis by acknowledging the legal principles governing 

motions for a new trial. Rule 3:20-1 provides: 

The trial judge on defendant's motion may grant the 

defendant a new trial if required in the interest of 

justice. . . . The trial judge shall not, however, set aside 

the verdict of the jury as against the weight of the 

evidence unless, having given due regard to the 

opportunity of the jury to pass upon the credibility of 

the witnesses, it clearly and convincingly appears that 

there was a manifest denial of justice under the law.

"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). A defendant is permitted to seek a new trial on the ground of 

newly discovered evidence at any time. State v. Szemple, 247 N.J. 82, 99 (2021) 

(quoting R. 3:20-2). In State v. Carter, 85 N.J. 300 (1981), the Court repeated 

the well-established standard for granting a new trial based on newly discovered 

evidence:

[T]o 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 
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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.] 

"All three tests must be met before the evidence can be said to justify a 

new trial." Ibid. (citing State v. Johnson, 34 N.J. 212, 222 (1961)). "Under 

prong one of the Carter test, [courts] first must look to the issue of materiality 

as that term pertains to the defense in a criminal case." State v. Ways, 180 N.J. 

171, 188 (2004) (citing Carter, 85 N.J. at 314). "Material evidence is any 

evidence that would 'have some bearing on the claims being advanced.'" Ibid.

(quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1991)). 

"Determining whether evidence is 'merely cumulative, or impeaching, or 

contradictory,' 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." Ways, 180 N.J. at 188–89. "The characterization of evidence as 

'merely cumulative, or impeaching, or contradictory' is a judgment that such 

evidence is not of great significance and would probably not alter the outcome 

of a verdict." Id. at 189. "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." Ibid. (citing 
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Henries, 306 N.J. Super. at 535). See also State v. Nash, 212 N.J. 518, 549 

(2013). 

The second prong of the Carter test "recognizes that judgments must be 

accorded a degree of finality and, therefore, requires that the new evidence must 

have been discovered after completion of trial and must not have been 

discoverable earlier through the exercise of reasonable diligence." Ways, 180 

N.J. at 192 (citing Carter, 85 N.J. at 314). Importantly, for purposes of this 

appeal, a defendant may seek a new trial where advances in scientific 

methodology previously unavailable would probably have changed the result. 

See State v. Behn, 375 N.J. Super 409, 429 (App. Div. 2005). 

We next apply these general principles to the record before us. Defendant 

points to behavioral and neurological science studies that show that the 

prefrontal cortex, required for impulse-control and self-control in high stress 

situations, does not finish developing until a person is in their mid-twenties. 

Defendant argues that, had the jury been privy to these studies, it probably would 

have concluded that he was incapable of forming the prescribed culpability 

requirement for knowing or purposeful murder and, therefore, would probably 

have found him innocent of that first-degree crime. 
10 A-2052-20

Judge Taylor rejected that contention, finding that "the purportedly newly 

discovered evidence advanced by defendant fails to meet the three-prong test 

established in Carter." Specifically, the judge found that the studies defendant 

offered as newly discovered evidence are neither "novel" nor "a scientific 

methodology previously unavailable." Judge Taylor pointed out that, "[s]tatutes, 

court rules and evidence rules have long recognized that an individual accused 

of murder can produce evidence that his mental state at the time of the killing 

was such that he could not form the requisite intent." He also noted that, at the 

time of the defendant's trial, the U.S. Supreme Court had recognized the "broad 

agreement that adolescents as a class are less mature and responsible than 

adults" in Thompson v. Oklahoma, 487 U.S. 815, 834 (1988). As a result, Judge 

Taylor reasoned that defendant could have introduced evidence of his 

immaturity at the time of his trial, but instead mounted a defense based on a 

theory of accidental discharge.

Importantly, Judge Taylor, while recognizing that "the science of 

adolescent brain development may have progressed," pointed out that defendant 

did not introduce evidence indicating "that this new science impacts [him] in 

any fashion, since he was [twenty-six] years and [ten] months old at the time of 
11 A-2052-20

the murder with significant life experiences." Judge Taylor emphasized that 

"[b]y any definition, [defendant] was not an adolescent at the time of the 

murder." The judge also noted that defendant offers no evidence linking the 

scientific studies on general adolescent behavior to his own capacity to form the

culpability required to commit a murder.

Relatedly, Judge Taylor found that the scientific evidence defendant 

offered was not material to an issue contested at trial, noting that the trial defense 

was based on a claim of accident. Judge Taylor reasoned that the scientific 

studies would have little bearing on whether the shooting was accidental. With 

respect to the third prong of the Carter test, Judge Taylor found that "defendant 

has presented no evidence that the developments in behavioral science would 

probably change the jury's verdict if a new trial were granted." 

We acknowledge, as did Judge Taylor, that advances in scientific 

knowledge may constitute newly discovered evidence for purposes of a new trial 

motion, provided that a defendant can show, for example, that recently improved 

scientific methodology, not available at the time of trial, would probably have 

changed the result. See Behn, 375 N.J. Super. at 429 (citing State v. Halsey, 

329 N.J. Super. 553, 559 (App. Div. 2000)). The evidence offered as newly 
12 A-2052-20

discovered evidence in Behn, however, is readily distinguishable from the 

neuroscience studies that defendant proffers. 

In Behn, the newly discovered evidence consisted of an affidavit from a 

qualified expert witness whose studies on composition bullet lead analysis 

"called into question, if not totally undermined" scientific assumptions 

fundamental to the State's case. Id. at 430. Because the new scientific evidence 

would have effectively neutralized the State's trial expert and its entire 

prosecution strategy, we determined that it possessed the capacity to change the 

jury's verdict. Ibid. 

Here, in stark contrast, the behavioral science studies that defendant offers 

in support of his motion have little bearing on the material issue that was 

disputed at trial, namely, whether the shooting was accidental. As Judge Taylor 

aptly noted, "[e]ven if defendant altered his defense and argued he lacked the 

requisite intent for murder, there is no evidence linking the general behavior 

science to defendant's lack of ability to form the requisite intent to kill." 5

5 We note that the State was not required at trial to prove that defendant had an 

intent to kill. In a prosecution for murder under N.J.S.A. 2C:11-3(a), the State 

need only prove that defendant acted knowingly. See also N.J.S.A. 2C:2-2(b) 

(defining the four kinds of culpability used in the New Jersey Code of Criminal 
13 A-2052-20

Judge Taylor amplified that finding while addressing the third prong of 

the Carter test, carefully applying the legal test to the relevant facts in this case. 

The judge explained:

[I]t is doubtful a jury would find the science even 

applied to defendant, given his age, life experiences and 

the circumstances of the case. The studies are focused 

on adolescents, and even if that term were extended to 

individuals in their early twenties, defendant falls well 

outside that parameter. Even if the defendant were to 

present expert testimony regarding his lack of brain 

development, the facts of the case would not change. 

The defendant, married with two children, was having 

an affair with the victim's wife and surreptitiously spied 

on the couple through a window late at night. When the 

defendant saw the couple retreat to a bedroom and 

heard the sound of lovemaking, he left, armed himself 

with a shotgun and returned to the premises hours later 

at 5:00 a.m. Defendant then laid in wait for the victim 

to leave for work and confronted the victim when he 

exited the home. The victim was shot from 

approximately [six] feet away, according to forensic 

evidence and testimony, and defendant fled the scene 

immediately after the shooting. Although the trial court 

instructed the jury on the lesser offenses of passionprovocation manslaughter, aggravated manslaughter 

and reckless manslaughter, the jury rejected those 

alternatives and convicted defendant [of] murder. 

Justice, N.J.S.A. 2C:1-1 to -104-9, and distinguishing "purposely," N.J.S.A. 

2C:2-2(b)(1), from "knowingly," N.J.S.A. 2C:2-2(b)(2)). 
14 A-2052-20

We agree with Judge Taylor that on these facts—especially considering 

that defendant was almost twenty-seven years old at the time of the shooting—

defendant failed to establish that, if a new trial were granted, the verdict would 

probably be different if the jury were to be apprised of scientific studies 

pertaining to the development of the adolescent brain. 

III.

We turn next to defendant's alternate contentions that the neuroscience 

studies warrant a reduction in his sentence and that the failure to account for 

those studies constitutes cruel and unusual punishment. We first acknowledge 

that a defendant may challenge an illegal sentence at any time. State v. Acevedo, 

205 N.J. 40, 47 n.4 (2011) (citing R. 3:21-10(b)(5)). "[A]n 'illegal sentence' is 

one . . . 'not imposed in accordance with law.'" Id. at 45 (quoting State v. 

Murray, 162 N.J. 240, 247 (2000)). That includes a sentence "imposed without 

regard to some constitutional safeguard." State v. Taveres, 286 N.J. Super. 610, 

618 (App. Div. 1996). 

Here, it cannot reasonably be disputed that defendant's sentence was 

imposed in accordance with law in force at the time of the sentencing 

proceeding. Indeed, the thirty-year minimum period of parole ineligibility is 
15 A-2052-20

mandatory. See supra note 3. We thus turn our attention to defendant's 

contention that the sentence imposed in 1999 has since become unconstitutional 

in light of the neuroscience studies showing that the human brain continues to 

develop well into an individual's twenties.

Defendant's argument relies on a series of United States and New Jersey 

Supreme Court decisions that dealt with juvenile offenders who were tried and 

sentenced as adults. He asks us to extrapolate from those cases a new rule that 

would render unconstitutional the mandatory sentence of thirty years without 

parole when imposed upon a person who was an adult when he committed 

murder, in this case, one that was almost twenty-seven years old. We decline to 

make that leap. 

In Miller v. Alabama, the United States Supreme Court held that the 

mandatory life-without-parole sentence imposed on Miller—who was fourteen 

years old when he committed murder—constitutes cruel and unusual 

punishment. 567 U.S. 460, 465 (2012). The Court reasoned that "children are 

constitutionally different from adults for purpose of sentencing" because they

"have diminished culpability and greater prospects for reform," and thus are 

"less deserving of the most severe punishments." Id. at 471 (quoting Graham v. 
16 A-2052-20

Florida, 560 U.S. 48, 68 (2010)). The Court stressed that sentencing courts must 

consider "how children are different, and how those differences counsel against 

irrevocably sentencing them to [a] lifetime in prison." Id. at 481. Even so, the 

Court did not categorically bar juveniles from being sentenced to life without 

parole. Id. at 480. Rather, the Court instructed sentencing courts to take into 

consideration the "hallmark features" of youth, the nature of the juvenile's 

environment, the effect of youthful "incompetencies" on criminal proceedings, 

and the "possibility of rehabilitation." Id. at 477–78 (citations omitted). 

In State v. Zuber, our Supreme Court built upon this federal juvenile 

sentencing jurisprudence and extended application of the Miller principles to 

situations where a juvenile is facing a term of imprisonment that is the "practical 

equivalent to life without parole."6 227 N.J. 422, 429–30 (2017). However, as 

the Court recently made clear in State v. Ryan, it did not extend Miller's 

6

 We agree with Judge Taylor that the sentence imposed in this case, while 

substantial, is not the "practical equivalent" of life without parole. In Zuber, 

under the aggregate sentence, Ricky Zuber would have been about seventy-two

years old when he became eligible for parole; the defendant in the consolidated 

case, James Comer, would have been eighty-five years old. 227 N.J. at 428. In 

the matter before us, defendant will be eligible for parole in July 2027, when he 

will be fifty-six years old. 
17 A-2052-20

protections to defendants sentenced for crimes committed when those 

defendants were over the age of eighteen. 249 N.J. 581, 596 (2022). 

We likewise reject defendant's invitation to extend Miller and its progeny 

even further to encompass persons who were older than twenty-five years old

when they committed their crimes.7 We add this is not a case where the crime 

was committed by a person who had just turned eighteen. Defendant at the time 

of the fatal encounter had been an adult for purposes of our criminal justice 

system for nearly nine years. 

Finally, we note that in 2020, the Legislature amended N.J.S.A. 2C:44-1 

to add mitigating factor fourteen. "N.J.S.A. 2C:44-1(b) now provides that a 

sentencing judge 'may properly consider' that '[t]he defendant was under 

[twenty-six] years of age at the time of the commission of the offense.'" State 

v. Lane, 251 N.J. 84, 93 (2022). The new sentencing provision is based upon a 

recommendation contained in the first annual report of the New Jersey Criminal 

7

 We note that N.J.S.A. 2C:43-5 provides an indeterminant sentencing option 

to be served at the Youth Correctional Institution Complex for certain "young 

adult offenders" who have not been convicted of certain crimes that carry a 

mandatory minimum term of parole ineligibility, such as murder. That provision 

applies to persons who "at the time of sentencing, [are] less than [twenty-six]

years of age." 
18 A-2052-20

Sentencing Disposition Commission (CSDC).8 Ibid. Defendant would not 

qualify for this mitigating factor because he was twenty-six and ten months old 

when he committed the murder. We deem it significant that neither the CSDC 

nor the Legislature extended the youth mitigation principle to persons as old as 

defendant was when he committed the murder. We also deem it to be significant 

that our Supreme Court construed the new mitigating factor to be prospective 

only. Id. at 95–97. Nothing in Lane suggests that failure to apply the youth 

mitigating factor retroactively would somehow constitute an Eighth Amendment 

violation. 

To the extent we have not addressed them, any remaining arguments 

raised by defendant lack sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(2). 

8

 The CSDC Report incorporated two of the studies cited to by defendant, one 

published in 1992—which was available to him at the time of his trial—and the 

other in 2003. See N.J. CRIM. SENT'G & DISPOSITION COMM'N, ANNUAL REPORT

(Nov. 2019). The report noted that "with the advancement of modern brain 

science has come the recognition that juveniles possess certain traits that 

differentiate them from their adult counterparts." Id. at 27. The report 

recommended the creation of a new mitigating sentencing factor for youth, 

remarking that "[a]lthough these differences do not altogether absolve juveniles 

of responsibility for their crimes, it is widely accepted that they may reduce their

culpability." Ibid. 
19 A-2052-20

Affirmed.