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 Pro secutor, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be bi nding upon any court . " A lthough 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, 20182 A - 3527
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Defendant Ali S. Morgano appeals from the denial of his sixth petition 1 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 o f the alibi witnesses is newly discovered evidence that entitle s 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 incri minating statements to police

– that he aided Sean Jones in the commission
of the 1988 robbery a nd murder of a street vendor in Newark . In his second statement, d efendant 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
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at defendant's mother's house, and then dro ve Jones to Sixth

Avenue . D efendant then went to Hawk's Patio, a bar that was around
the corner on Nin th Street. He was in the bar when he heard gunshots; h e 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, implic ating 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 Miranda 3 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. T he State proceeded on the theory, consistent with defendant's own statement, that he was i n 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
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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 Will iam "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 certi fication, and moved under
Rule 3:20
- 2 for a remand for an e videntiary hearing. In attached certifications , h e as serted the testimony of two new ly discovered witness es , Abdullah Jackson and Qadir Pugsley, who were " unknown to [him] at the time of . . . tri al , " would corroborate his alibi that he was in Hawk's bar with B rown at the time of the shooting, and establish trial counsel was ineffectiv e for not investigating alibi witnesses . The Supreme Court granted certification and remanded defendant's petition to the PCR court for reconsideration5 A - 3527
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and an evidentiary hearing on defendant's PCR . State v. Morgano , 216 N.J. 2 (2013). 4 At the hearing that followed, t he State presented the testimo ny of defendant's trial co unsel , who was a veteran public
defender at t he 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

— whe re he might be found . Testifying twenty - five years after the trial, c ounsel did not independently recall whether t he individuals were located or investigated . H e testified that, consistent with his practice,
he would have submit ted an investigation requ est 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 the ir testimony would
not have exculpate d 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 no t include defendant's 2 011 petition. Consequently , we rely on his submissions to the Supreme Court to understand the grounds he presents for PCR.6 A - 3527
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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 s cene. 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 th a t he was willing to testify at defendant's trial, there is no competent evid ence as to what he would have said. 5 C ounsel chose not to call Jones as a witness
because h e was "vulnerable," a "bad guy," and his testimony would have implicated defendant. As counsel stated in his contemporaneous notes, even if Jones attempted to excu lpate 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. Coun sel 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
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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 n ame, J i h a d. He admitted
he did not personally know whether counsel was able to locate any of the witnesses he identified. He assume d 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. Pugsl ey testified that on the day of the shooting , he saw defendant park his car near the bar and me e t 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 d efendant
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, and8 A - 3527
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defendant dr o ve away. Pugsley testified that no one questioned him at the time about the inci dent, 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
h e 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 dri ve off together . He left the area as the police began to arrive. He was never contacted about the shoot ing.

T he PCR judge found Pugsley and Brown were credible . So was tri al counsel, but the court noted that, given h is lack of specific
memory, he could not definitely say whether he asked for an investigation of the alibi witnesses. Applying the two - pron g 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

"reas onable 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 th at defendant aided Jones in the commission of the robbery . The court concluded trial counsel was not ineffective9 A - 3527
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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 :

POIN T 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 UP ON 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 ARTICLE10 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 CO DEFENDANT 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 t he trial court did not explicitly address prong one
of the Strickland test
— tha t is, whet her 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, defen dant suffered no prejudice. See i bid. 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, 54 0 (2013). We review legal conclusions de novo. Ibid. Applying that standard of review, we discern no error.11 A - 3527
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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 bas ed 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 reveal ed at trial , assuming an investigation would have led to their cooperation. 6

B rown and Pugsley did not exonerate defendant. "'Alibi' literally mean s '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 whereabout s 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 hea ring, 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
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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 establishe d 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 liabi lity, specifically that
d efendant 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 d riving 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 detail ed his involvement in two statements to the police . The statements were admitted at trial, and establish ed his culpability as an accompl ice . The ba r patrons' testimony13 A - 3527
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would not have refute d defendant's admission s about his actions
b efore he walked into Hawk ' s bar , and it would have only bols tered the State's proofs that he was Jones' s getaway driver after the shooting . As trial counsel put it, in m aking 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

P ugsley 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 Ca dillac. 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

Jon es. 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, a lthough the tw o witnesses did not mention
defendan t's interaction with the woman , PCR counsel did not directly ask Brown or Pugsley about whether they saw defendant14 A - 3527
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interact with a woman before driving off. It is conceivable that twenty - five years later, the witnesses would have acknowledged the

occurren ce 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 reasonabl e 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 pas t the vendors shortly before the robbery. 7 In sum, defendant failed to establish that

– ev en if his attorney prov ided 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. Defen dant 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 conv iction. Ibid.15 A - 3527
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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 fail ing to call Jones as a witness , and that Pugsley's testimony is newly discovered evidence that entitles him
to a new trial. B ased on a review of the record it is app arent defendant raised the issues before the PCR court. Rather than
remand for a determination of the issues , we exerci se our original jurisdiction to decide them . See R. 2:10
- 5. Defendant contends that his trial attorney was ineffective for failing to c all 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. (qu oting 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 alleg ed 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
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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. Car a bello , 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 (hear say 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 w as 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 h im. Defendant also argues Pugsley's testimony is newly discovered evidence that warrants granting him a new tri al. See R. 3:20
- 2. We disagree , because the testimony would not alter the verdict at a new trial .17 A - 3527
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It is well

- settled that newly discovered ev idence 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 pro bably 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 tes t are "inextricably intertwined." Nash , 212 N.J. at 549. E vidence 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 1 89. 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. Sup er. 512, 513 (A pp. Div. 1991)). "Clearly, e vidence that supports a defense, such as alibi, third

party guilt, or a ge neral denial of guilt would be material." Ibid.18 A - 3527
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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 th e time of the shooting , a fact already established by the State's proofs . As we h ave 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 dete rmining 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 undermin e 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.