SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3527-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALI S. MORGANO,

Defendant-Appellant.

__________________________________

Submitted September 11, 2017 – Decided 

Before Judges Sabatino and Ostrer.

On appeal from Superior Court of New Jersey, 

Law Division, Essex County, Indictment No. 88-

10-3334.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Andrew J. Shaw, Designated 

Counsel, of counsel and on the brief).

Robert D. Laurino, Acting Essex County 

Prosecutor, attorney for respondent (Stephen 

A. Pogany, Special Deputy Attorney General/

Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE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.

June 26, 2018
2 A-3527-14T1

Defendant Ali S. Morgano appeals from the denial of his sixth

petition1 for post-conviction relief (PCR) after an evidentiary 

hearing. Defendant collaterally challenges his 1989 conviction 

for robbery, felony murder, purposeful murder, and other related 

crimes. He principally contends that his trial counsel was 

ineffective by failing to investigate alibi witnesses. He also 

argues counsel was ineffective for failing to call his co-defendant 

as a witness. Further, he contends the testimony of one of the 

alibi witnesses is newly discovered evidence that entitles him to 

a new trial. See R. 3:20-2.

We presume familiarity with the facts given defendant's 

numerous appeals. See e.g., State v. Morgano, No. A-5262-88 (App. 

Div. Jan. 28, 1991) (Morgano I). Suffice it to say there was 

substantial evidence – including defendant's two incriminating 

statements to police – that he aided Sean Jones in the commission 

of the 1988 robbery and murder of a street vendor in Newark. In 

his second statement, defendant told police that on June 6, 1988, 

Jones approached him about robbing a man selling pictures out of 

a van on Sixth Avenue in Newark. Although defendant "didn't want 

no part in the [r]obbery," he drove Jones to retrieve a gun kept 

 

1 The PCR court's 2011 order erroneously categorized this as 

defendant's seventh PCR petition by including defendant's federal 

habeas corpus petition in its count. 
3 A-3527-14T1

at defendant's mother's house, and then drove Jones to Sixth 

Avenue. Defendant then went to Hawk's Patio, a bar that was around 

the corner on Ninth Street. He was in the bar when he heard 

gunshots; he and other bar patrons went outside to see what 

happened. Jones ran towards him. They got into defendant's car 

and drove away. Jones gave defendant $1500 in what defendant 

claimed was hush money.

Defendant claimed his second statement was coerced. In his

first statement, given several hours before the second, he admitted 

only that he was in Hawk's bar, heard shots, stepped outside, and 

agreed to drive Jones away from the scene. The police obtained 

the second statement after Jones gave a statement, implicating him 

in the robbery. According to Jones, defendant proposed the robbery 

and was with Jones when it happened.2 After a hearing, the court 

denied defendant's Miranda3 motion. We affirmed that ruling on 

defendant's direct appeal. Morgano I, slip op. at 2-3.

Defendant filed the PCR petition at issue in 2011. He argued 

trial counsel was ineffective in failing to investigate alibi 

 

2 Defendant was tried separately, and Jones did not testify. The 

State proceeded on the theory, consistent with defendant's own 

statement, that he was in the bar when the actual robbery and 

shooting occurred, but had aided Jones by helping him obtain the 

gun, and flee the scene.

3 Miranda v. Arizona, 384 U.S. 436 (1966). 
4 A-3527-14T1

witnesses, particularly individuals who were at the bar with him 

at the time of the shooting. The PCR court determined the petition 

was procedurally barred by Rules 3:22-4 and 3:22-12.

We affirmed in State v. Morgano, No. A-3682-11 (App. Div. 

Jan. 25, 2013). We focused on defendant's argument that his 

attorney was ineffective for failing to locate and call as a 

witness William "Eddie" Brown, who was allegedly present with him 

in the bar. We held that Brown was not a new witness, since 

defendant was aware of his presence. Therefore, he could have 

raised the claim previously. Id. at 1-2.

Defendant filed a petition for certification, and moved under 

Rule 3:20-2 for a remand for an evidentiary hearing. In attached 

certifications, he asserted the testimony of two newly discovered

witnesses, Abdullah Jackson and Qadir Pugsley, who were "unknown 

to [him] at the time of . . . trial," would corroborate his alibi 

that he was in Hawk's bar with Brown at the time of the shooting, 

and establish trial counsel was ineffective for not investigating 

alibi witnesses. The Supreme Court granted certification and 

remanded defendant's petition to the PCR court for reconsideration 
5 A-3527-14T1

and an evidentiary hearing on defendant's PCR. State v. Morgano, 

216 N.J. 2 (2013).4

At the hearing that followed, the State presented the 

testimony of defendant's trial counsel, who was a veteran public 

defender at the time of trial. He acknowledged, after reviewing 

his notes from defendant's file, that defendant gave him the names

of possible alibi witnesses from Hawk's bar. His notes included 

Brown's name and a general area — as opposed to a specific address 

— where he might be found. 

Testifying twenty-five years after the trial, counsel did not 

independently recall whether the individuals were located or 

investigated. He testified that, consistent with his practice, 

he would have submitted an investigation request upon receiving 

the names from defendant. However, he admitted that he did not 

"connect up" with any of the witnesses.

Although he could not recall any investigation of the bar 

patrons, trial counsel was unequivocal that their testimony would 

not have exculpated defendant. He explained that defendant was 

never accused of shooting the street vendor. Rather, he was 

accused of being Jones's accomplice. Counsel testified that 

 

4 We note that the record before us does not include defendant's 

2011 petition. Consequently, we rely on his submissions to the 

Supreme Court to understand the grounds he presents for PCR.
6 A-3527-14T1

defendant essentially confessed to felony murder by admitting to 

police that he helped Jones get the gun, dropped him off at the 

scene before he went to Hawk's bar, and was Jones's getaway driver 

after the shooting. Trial counsel reasoned that testimony from

anyone inside the bar would only serve to place defendant directly 

at the scene. He commented that the witnesses were not "really 

alibi witnesses" at all.

Trial counsel also testified about his strategy. Although 

Jones stated at a pretrial hearing that he was willing to testify 

at defendant's trial, there is no competent evidence as to what 

he would have said.5 Counsel chose not to call Jones as a witness 

because he was "vulnerable," a "bad guy," and his testimony would 

have implicated defendant. As counsel stated in his 

contemporaneous notes, even if Jones attempted to exculpate 

defendant on the stand, the jury would hear his prior statement 

inculpating defendant on cross-examination. Counsel wrote that 

Jones's testimony would "kill us," and reported that he advised 

defendant that he should not be called as a witness. Counsel also 

stated he advised defendant that he should not testify in his own 

 

5 In an interview of Jones roughly ten years after trial, he stated 

he found religion while incarcerated, and had decided to tell the 

truth, that defendant's involvement was limited to his helping 

Jones flee. That would appear to indicate that the willingness 

to recant occurred long after defendant's trial. 
7 A-3527-14T1

defense. He "was not going to do himself much good" by testifying, 

and the better strategy was to attack the State's case during 

summation. 

Defendant testified at the evidentiary hearing that he chose 

not to take the stand on the advice of counsel. Regarding trial 

counsel's investigation of alibi witnesses, defendant testified 

that he informed counsel about Brown, and another person at the 

bar whom he identified only by a first name, Jihad. He admitted 

he did not personally know whether counsel was able to locate any 

of the witnesses he identified. He assumed counsel failed to 

investigate, because they did not testify at trial. He stated 

that he also asked his attorney to call Jones as a witness, because 

he believed Jones would exonerate him, but counsel did not call 

him at trial. 

Brown and Pugsley testified for the defense at the PCR 

hearing. Abdullah Jackson did not, for reasons that are not 

apparent from the record. Pugsley testified that on the day of 

the shooting, he saw defendant park his car near the bar and meet 

Brown outside. He saw them enter the bar together. Pugsley 

remained outside and heard the sound of gunshots. He saw Jones, 

among others, running from Sixth Avenue. Pugsley saw defendant 

and Brown exit the bar. As defendant crossed the street to his 

car, Jones asked him for a ride. They both got into the car, and 
8 A-3527-14T1

defendant drove away. Pugsley testified that no one questioned 

him at the time about the incident, and he never sought out the 

police to report what he saw.

Brown testified he was in Hawk's bar with defendant on the 

day of the shooting. They heard gunshots, and walked outside to 

"see . . . what was going on." Brown testified defendant told him 

he was leaving. Brown saw defendant get into his car. He then

saw Jones round the corner and get into defendant's car. He saw 

defendant and Jones drive off together. He left the area as the 

police began to arrive. He was never contacted about the shooting.

The PCR judge found Pugsley and Brown were credible. So was 

trial counsel, but the court noted that, given his lack of specific 

memory, he could not definitely say whether he asked for an 

investigation of the alibi witnesses. Applying the two-prong

Strickland test, see Strickland v. Washington, 466 U.S. 668, 687 

(1984), the court did not expressly find that trial counsel's 

performance was deficient. However, reaching the second prong, 

the court held that defendant had failed to demonstrate a 

"reasonable probability that but for . . . [counsel's] failings, 

the result of the proceedings would have been different." Ibid.

The court reasoned that the witnesses' testimony did not overcome 

the evidence that defendant aided Jones in the commission of the

robbery. The court concluded trial counsel was not ineffective 
9 A-3527-14T1

because even if Pugsley or Brown testified at trial, defendant 

"still would have been convicted of felony murder." 

On appeal, defendant raises the following points in a 

counseled brief:

POINT I: THE PCR COURT ERRED IN 

DENYING THE DEFENDANT'S SEVENTH PRO 

SE PCR PETITION BASED UPON 

INEFFECTIVE ASSISTANCE OF COUNSEL.

A. THE INEFFECTIVE ASSISTANCE 

OF COUNSEL STANDARD.

B. THE FELONY MURDER AND 

ROBBERY CONVICTIONS.

C. THE MURDER CONVICTION.

D. POSSESSION OF A FIREARM FOR 

AN UNLAWFUL PURPOSE CONVICTION.

POINT II: THE PCR COURT ERRED BY 

FAILING TO RULE ON THE DEFENDANT'S 

MOTION FOR A NEW TRIAL BASED UPON 

NEWLY DISCOVERED EVIDENCE.

Defendant also raises the following points in a supplemental pro 

se brief:

POINT ONE: THE PCR COURT ERRED IN 

DENYING DEFENDANT'S CLAIMS OF 

INEFFECTIVE ASSISTANCE OF COUNSEL 

WHEN COUNSEL FAILED TO INVESTIGATE 

HIS POTENTIAL ALIBI WITNESSES WHOSE 

NAMES WERE SUPPLIED TO COUNSEL BY 

DEFENDANT. THIS VIOLATED

DEFENDANT'S RIGHT TO A FAIR TRIAL AS 

GUARANTEED BY SIXTH AND 

FOURTEEN[TH] AMENDMENT[S] TO THE 

U.S. CONSTITUTION AS WELL AS ARTICLE 
10 A-3527-14T1

1 PARAGRAPH 10 OF THE NEW JERSEY 

STATE CONSTITUTION.

POINT TWO: THE DEFENDANT-APPELLANT 

CONTENDS THAT THE NEWLY DISCOVERED 

EVIDENCE WARRANT[S] A NEW TRIAL.

POINT THREE: DEFENDANT-APPELLANT 

CONTENDS THAT TRIAL COUNSEL WAS 

INEFFECTIVE FAILING TO CALL CODEFENDANT SEAN JONES AS A DEFENSE 

WITNESS TO EXCULPATE DEFENDANT FROM 

THE ROBB[E]RY AND FELONY MURDER 

CHARGES. THIS VIOLATED DEFENDANT'S 

RIGHT TO A FAIR TRIAL AS GUARANTEED 

BY SIXTH AND FOURTEEN[TH] 

AMENDMENT[S] TO THE U.S. 

CONSTITUTION AS WELL AS ARTICLE 1 

PARAGRAPH 10 OF THE NEW JERSEY STATE 

CONSTITUTION.

Since the trial court did not explicitly address prong one 

of the Strickland test — that is, whether trial counsel was 

deficient, Strickland, 466 U.S. at 687 – we are constrained to 

focus our review on the court's conclusion under prong two that, 

even if trial counsel was deficient by failing to investigate 

defendant's alibi witnesses, defendant suffered no prejudice. See

ibid. Our review of the court's decision, reached after an 

evidentiary hearing, "is necessarily deferential to [the] court's 

factual findings based on its review of live witness testimony."

State v. Nash, 212 N.J. 518, 540 (2013). We review legal 

conclusions de novo. Ibid. Applying that standard of review, we 

discern no error.
11 A-3527-14T1

Our Supreme Court has recognized that the "[f]ailure to 

investigate an alibi defense is a serious deficiency that can 

result in the reversal of a conviction." State v. Porter, 216 

N.J. 343, 353 (2013). "[W]hen a petitioner claims his trial 

attorney inadequately investigated his case, he must assert the 

facts that an investigation would have revealed, supported by 

affidavits or certifications based upon the personal knowledge of 

the affiant or the person making the certification." Ibid.

(quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 

1999)). Defendant established at the evidentiary hearing what 

Brown and Pugsley would have revealed at trial, assuming an 

investigation would have led to their cooperation.6

Brown and Pugsley did not exonerate defendant. "'Alibi' 

literally means 'elsewhere; in another place.'" State v. Nunn, 

113 N.J. Super. 161, 167 (App. Div. 1971) (quoting State v. Mucci, 

25 N.J. 423, 431 (1957)). Proof of an alibi, meaning that a 

"defendant was elsewhere at the time and place of the crime," goes 

to the heart of the question of whether the State has proved its 

 

6 Neither Brown nor Pugsley described their whereabouts in the 

months after the crime; nor did they say they would have cooperated 

with an investigator and would have been willing to testify at 

trial on defendant's behalf. Also, defendant did not name or 

describe Pugsley to his trial counsel. At the PCR hearing, he did 

not present evidence to establish the likelihood that a defense 

investigator would have been able to identify him as a witness.
12 A-3527-14T1

case beyond a reasonable doubt. Pressler & Verniero, Current N.J. 

Court Rules, cmt. 1.3 on R. 3:12-2 (2018). The defense is only 

sustainable where the offered evidence establishes "the physical 

impossibility of the accused's guilt . . . ." Mucci, 25 N.J. at 

431.

Brown and Pugsley established the physical impossibility that 

defendant shot the street vendor. But, the bar patrons provide 

defendant no alibi, because the State did not allege that defendant 

physically robbed and shot the street vendor. The State relied 

at trial on a theory of accomplice liability, specifically that 

defendant acted "[w]ith the purpose of promoting or facilitating" 

Jones's commission of robbery, and ultimately murder, by supplying 

Jones with a gun, driving him to the scene of the robbery, waiting 

for him around the corner, and driving him away after the robbery 

turned deadly. See N.J.S.A. 2C:2-6(c)(1)(b) (defining accomplice 

as a person who, "[w]ith the purpose of promoting or facilitating 

the commission of [an] offense," aids another in "planning or 

committing" it); see also N.J.S.A. 2C:2-6(b)(3) (stating an 

accomplice is legally accountable for the conduct of another 

person).

Defendant detailed his involvement in two statements to the 

police. The statements were admitted at trial, and established

his culpability as an accomplice. The bar patrons' testimony 
13 A-3527-14T1

would not have refuted defendant's admissions about his actions

before he walked into Hawk's bar, and it would have only bolstered 

the State's proofs that he was Jones's getaway driver after the 

shooting. As trial counsel put it, in making those statements,

defendant "walk[ed] himself right into a felony murder." Thus, 

defendant suffered no prejudice as a result of any failure to call 

the two patrons as witnesses.

Defendant contends in his pro se brief that had Brown and 

Pugsley testified, they would have probably affected the trial 

result because they would have discredited a significant 

prosecution witness. The witness testified that she observed 

Jones shoot the vendor; run down the street; and enter defendant's 

white Cadillac. In particular, she testified that she saw Jones 

drop some money as he ran. As she bent down to pick up what turned 

out to be three dollars, defendant got out of his car, told her 

to give it him, and then returned to his car and drove off with 

Jones. 

As a threshold matter, we note that defendant did not raise 

this argument before the trial court. Therefore, we are not 

obliged to reach it. State v. Arthur, 184 N.J. 307, 327 (2005). 

Furthermore, although the two witnesses did not mention 

defendant's interaction with the woman, PCR counsel did not 

directly ask Brown or Pugsley about whether they saw defendant 
14 A-3527-14T1

interact with a woman before driving off. It is conceivable that 

twenty-five years later, the witnesses would have acknowledged the 

occurrence if their recollection had been refreshed. 

In any event, even if the two witnesses definitively stated 

they saw no exchange between defendant and the woman, we are 

unpersuaded that would have established a reasonable probability 

of a different result. Defense counsel vigorously cross-examined 

the woman, exploring her bias in assisting the prosecution, because 

she had pending drug charges. Furthermore, the principal evidence 

against defendant was his own admissions. The State's case was 

also supported by the testimony of the victim's helper, who 

testified that he saw two men in a large white car — a Cadillac 

or Oldsmobile — drive slowly past the vendors shortly before the 

robbery.7

In sum, defendant failed to establish that – even if his 

attorney provided him with constitutionally deficient 

representation by not conducting an investigation – it is 

 

7 In his pro se supplemental brief, defendant also continues to 

argue that his second statement was coerced. Defendant did not 

raise this issue before the PCR court, and we will not address it 

on appeal. Arthur, 184 N.J. at 327 (stating "[a]n appellate court 

ordinarily will not consider issues that were not presented to the 

trial court"). In any event, the issue is procedurally barred by 

Rule 3:22-5. We reviewed the denial of defendant's Miranda motion

on direct appeal. Morgano I, slip op. at 3. We concluded the 

trial court's ruling was supported by sufficient credible evidence 

in the record, and affirmed his conviction. Ibid.
15 A-3527-14T1

reasonably probable that the result of the trial would have been 

different. Strickland, 466 U.S. at 687. 

Defendant also raises two arguments on appeal that the trial 

court did not address. He contends that trial counsel was 

ineffective for failing to call Jones as a witness, and that

Pugsley's testimony is newly discovered evidence that entitles him 

to a new trial. Based on a review of the record it is apparent

defendant raised the issues before the PCR court. Rather than 

remand for a determination of the issues, we exercise our original 

jurisdiction to decide them. See R. 2:10-5.

Defendant contends that his trial attorney was ineffective 

for failing to call Jones as a witness. "[A] defense attorney's 

decision concerning which witnesses to call to the stand is 'an 

art' . . . ." Arthur, 184 N.J. at 321 (quoting Strickland, 466 

U.S. at 693). As such, our review "should be 'highly 

deferential.'" Ibid. (quoting Strickland, 466 U.S. at 689). Trial 

counsel testified that he chose not to call Jones as a witness, 

even though he was willing to testify, because "[his testimony]

would have implicated [defendant]." Indeed, in Jones's statement 

to police, he alleged that the robbery was defendant's idea, the 

gun was defendant's, and defendant participated in the robbery as 

well as the flight from the scene. 
16 A-3527-14T1

It was reasonable trial strategy for trial counsel not to 

call Jones as a witness. Even if he recanted his prior statement 

to police and attempted to exonerate defendant, his testimony 

would have opened the door to the introduction of his prior 

inculpatory statement — in which he alleged that the robbery was 

defendant's idea. N.J.R.E. 803(a)(1); see State v. Carabello, 330 

N.J. Super. 545, 556 (App. Div. 2000) (stating N.J.R.E. 803(a)(1) 

"allows the admission of a witness's inconsistent statement as 

substantive evidence"). Absent Jones's appearance, that statement 

was inadmissible hearsay. N.J.R.E. 802 (hearsay rule); see also

State v. Weaver, 219 N.J. 131, 151-52 (2014) (stating the 

Confrontation Clause does not allow otherwise admissible hearsay 

that is "testimonial in nature" to be admitted if the declarant 

does not testify). 

For the very reason that it was not constitutionally deficient 

to forgo calling Jones as a witness, it was not reasonably probable 

that his testimony would have changed the result. See Strickland, 

466 U.S. at 687. Jones's appearance at trial was as likely to 

hurt defendant as help him.

Defendant also argues Pugsley's testimony is newly discovered 

evidence that warrants granting him a new trial. See R. 3:20-2. 

We disagree, because the testimony would not alter the verdict at 

a new trial.
17 A-3527-14T1

It is well-settled that newly discovered evidence sufficient 

to warrant a new trial 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." Nash, 212 N.J. at 

549 (quoting State v. Carter, 85 N.J. 300, 314 (1981)). A 

defendant must satisfy all three prongs to gain relief. State v. 

Ways, 180 N.J. 171, 187 (2004).

The central focus of the analysis is on the nature of the 

evidence presented. Id. at 191-92 ("The power of the newly 

discovered evidence to alter the verdict is the central issue, not 

the label to be placed on that evidence."). In that way, prongs 

one and three of the test are "inextricably intertwined." Nash, 

212 N.J. at 549. Evidence that is merely cumulative, impeaching, 

or contradictory "is not of great significance and would probably 

not alter the outcome of a verdict." Ways, 180 N.J. at 189. 

However, "[m]aterial evidence is any evidence that would 'have

some bearing on the claims being advanced.'" Id. at 188 (quoting 

State v. Henries, 306 N.J. Super. 512, 513 (App. Div. 1991)). 

"Clearly, evidence that supports a defense, such as alibi, thirdparty guilt, or a general denial of guilt would be material." 

Ibid.
18 A-3527-14T1

Prong two "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." Id. at 192. In this evaluation, a court should

consider the strategic decisions of trial counsel. Ibid. ("A 

defendant is not entitled to benefit from a strategic decision to 

withhold evidence.").

Here, defendant has offered only cumulative evidence that he 

was in a bar at the time of the shooting, a fact already established 

by the State's proofs. As we have already discussed, Pugsley is 

not an alibi witness. His testimony is not material, and it would 

not change the verdict at a new trial. The jury was not tasked 

with determining whether defendant shot the street vendor. The 

issue at trial was whether defendant was Jones's accomplice. 

Except for the possibility that Pugsley could have contradicted 

the State's female eyewitness, Pugsley's testimony does nothing 

to undermine the State's case. However, for the reasons already 

stated, that contradiction — even if we presume it in the absence 

of Pugsley's explicit testimony — would not probably change the 

result if a new trial were granted. 

Affirmed.