SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3575-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AGUSTIN GARCIA,

a/k/a AUGUSTIN GARCIA,

and AUGUSTINE GARCIA,

Defendant-Appellant.

________________________

Submitted September 16, 2021 – Decided October 13, 2021

Before Judges Gilson and Gummer.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Indictment No. 00-06-1368.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique Moyse, Designated Counsel, on the 

brief).

Mark Musella, Bergen County Prosecutor, attorney for 

respondent (William P. Miller, Assistant Prosecutor, of 

counsel; Catherine A. Foddai, Legal Assistant, on the 

brief).

NOT FOR PUBLICATION WITHOUT THE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.
2

A-3575-18

Appellant filed a pro se supplemental brief.

PER CURIAM

Twenty years ago, in 2001, a jury convicted defendant of murdering his 

former girlfriend on the day she was to marry another man. Defendant shot her 

at close range in her home just before the wedding ceremony. The shooting was 

witnessed by several guests and family members and recorded by a videographer 

who was filming the events of the day. Following the rejection of his arguments 

on direct appeal and the rejections of extensive arguments made in four petitions 

for post-conviction relief (PCR), defendant moved to compel production of the 

entire video of the wedding day and the portion of the video presented at his 

trial. He asserted that new technology might allow him to enhance the video 

and the video might support his contention that he acted in self-defense. The 

motion court denied that motion, reasoning that all arguments about the video

and defendant's related self-defense claim had been addressed and resolved in 

his prior direct appeal and the orders and appeals concerning his PCR petitions. 

Defendant now appeals from a January 25, 2019 order denying his motion to 

compel. We affirm.

A jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1)

and (2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 
3

A-3575-18

2C:39-4(a); third-degree possession of a handgun without the required permit, 

N.J.S.A. 2C:39-5(b); and four counts of third-degree endangering the welfare of 

a child, N.J.S.A. 2C:24-4(a). Following the merger of certain convictions, 

defendant was sentenced to life in prison with a mandatory thirty years of parole 

ineligibility.

In 2004, we affirmed defendant's convictions for murder and unlawful 

possession of a firearm but vacated his convictions for endangering the welfare 

of a child. State v. Garcia, No. A-3939-01 (App. Div. May 11, 2004). The 

Supreme Court denied certification. 181 N.J. 545 (2004).

Thereafter, defendant filed four petitions for PCR. All those petitions 

were denied, and we affirmed the denial of the first three PCR petitions. State 

v. Garcia, No. A-5437-06 (App. Div. Nov. 6, 2009); State v. Garcia, No. A3198-09 (App. Div. Aug. 12, 2011); State v. Garcia, No. A-2764-10 (App. Div. 

May 16, 2013).

Separately, defendant filed requests under the Open Public Records Act

(OPRA), N.J.S.A. 47:1A-1 to -13, and the common law seeking to compel the 

production of the video and other documents. The denial of the request under 

OPRA and the common law was upheld by the trial court, and we affirmed that
4

A-3575-18

decision. Garcia v. Bergen Cnty. Prosecutor's Off., Nos. A-3085-16, A-4501-

16 (App. Div. May 17, 2019).

In his direct appeal, defendant made several arguments about the 

admissibility of the wedding video and the playing of portions of that video at 

his trial. In his four petitions for PCR, defendant repeatedly argued that his trial 

counsel had been ineffective in not challenging the admission of the wedding 

video based on tampering and in failing to retain an expert to examine and 

challenge the video.

On this appeal, defendant claims that he is entitled to discovery because 

an examination of the videotape might support his argument that he was attacked 

and acted in self-defense. His current counsel submitted a brief making one 

argument: 

The trial court erred in denying Mr. Garcia's motion to 

compel production of discovery.

Defendant submitted his own brief in which he argued:

A. [The] January 25, [2019] adverse order flagrantly 

violate[s] appellant['s] constitutional rights to due 

process of law, because it is capricious, unreasonable 

and unsupported by sufficient competent evidence in 

the record, warranting reversal and remand in best 

interest of justice.

B. [The] judge [] entered orders dated August 25, 

2016, March 3, 2017, and March 28, 2017, without any 
5

A-3575-18

participation of already assigned counsel, subjecting 

appellant to fundamental [State v. Cerbo, 78 N.J. 595, 

605, 607 (1979)] injustice, violating his right to counsel 

guaranteed by the Sixth and Fourteenth Amendments

[to the] U.S. Constitution.

The records on the prior proceedings establish that defendant was 

provided with a copy of the video before his trial in 2001. His arguments that 

the video was tampered with or altered have been repeatedly rejected. 

Nevertheless, defendant contends without any support that technological

enhancements may reveal something in the video that would support his selfdefense argument. That contention is undercut by the evidence at trial, which 

included testimony from eyewitnesses who testified that there was no struggle 

and that defendant pulled out a gun and shot the victim multiple times at close 

range.

We agree with the motion judge that reproducing the video could not

support any new argument that would not be procedurally barred and that any 

issue concerning the video could not constitute newly discovered evidence. The 

entire videotape was available to defendant and his counsel before trial and was 

also available during defendant's direct appeal and his first PCR petition.

Furthermore, as already pointed out, defendant's arguments about altering 

or tampering with the wedding video were raised and rejected in his prior direct 
6

A-3575-18

appeal and in his four prior PCR petitions. While New Jersey courts have the 

inherent power to order discovery when justice requires it, See State v. Marshall,

148 N.J. 89, 270 (1997), defendant's motion did not support an invocation of 

that extraordinary remedy.

Affirmed.