SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0600-17

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSH POMPEY,

Defendant-Appellant.

Argued February 10, 2021 – Decided May 18, 2021

Before Judges Alvarez and Sumners.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Indictment No. 89-12-1594.

Eric V. Kleiner argued the cause for appellant (Eric V. 

Kleiner, attorney; Eric V. Kleiner and Rudie 

Weatherman, on the briefs).

John J. Scaliti, Legal Assistant, argued the cause for 

respondent (Mark Musella, Bergen County Prosecutor, 

attorney; Jaimee Chasmer, Assistant Prosecutor, of 

counsel and on the brief; John J. Scaliti, 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NOT FOR PUBLICATION WITHOUT THE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 Josh Pompey appeals from two Law Division orders denying 

his petitions for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of two counts of first-degree murder, 

N.J.S.A. 2C:11-3(a)(1), (2) (counts one and two); four counts of felony murder, 

N.J.S.A. 2C:11-3(a)(3) (counts three through six); aggravated sexual assault, 

N.J.S.A. 2C:14-2(a)(3) (count seven); and aggravated assault, N.J.S.A. 2C:12-

1(b)(5)(a) (count eight). Defendant was first charged with capital murder, 

resulting in a hung jury. 

The next trial, a non-capital prosecution, took place between November 

5, 1997, and March 9, 1998, and defendant was convicted of all charges. After 

appropriate mergers, defendant was sentenced to an aggregate two life terms 

plus twenty-one and one-half years, with a seventy-year and nine-month parole 

bar. Sentence was imposed on April 3, 1998, and the judgment signed April 8, 

1998. On appeal, we affirmed. State v. Pompey, No. A-5772-97 (App. Div. 

May 17, 2004). The Supreme Court denied certification on June 22, 2005. State 

v. Pompey, 184 N.J. 211 (2005).

Defendant's convictions arose from the murder of his former girlfriend 

and her aunt. He broke into the victims' home through a basement window and 

waited there for the former girlfriend's return for several hours. Defendant 
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confronted her about resuming the relationship; she became fearful and 

attempted to appease him to no avail. When her aunt came downstairs to inquire

about the commotion, defendant, who had attempted to engage in sexual 

relations with his former girlfriend, stabbed them both. He unsuccessfully 

attempted to hotwire her car. 

Defendant ran from the scene, hiding his clothing, including the gloves 

worn during the killing, along the way. In his confession, he directed police to 

the locations where the scattered clothing could be found. Cuts were observed 

on his left hand when he was processed at the jail, which defendant said were

injuries from a kitchen knife on the day of the murders. 

DNA testing established that defendant could not be ruled out as a major 

contributor, and the former girlfriend a minor contributor, to blood samples 

taken from inside her car and from his black pants. Additional items, found at 

the locations defendant identified, were also tested. The victim could not be 

ruled out as the major contributor and defendant the minor contributor, to blood 

found on his windbreaker and to blood stains found on a shirt in a dumpster. 

Additionally, defendant could not be ruled out as a contributor to the blood on 

the mattress and the victim's brassiere. Her boyfriend was excluded as a 

contributor to any samples.
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Defendant's pretrial Miranda1 motion was denied. Among the grounds he 

raised for suppression of his statement was his limited IQ of 80. He later claimed 

the police bullied him, struck him, and kept him handcuffed during the 

interview. 

Defendant filed his first PCR petition in January 2006, claiming that his 

experts were improperly barred from testifying as established by subsequent

caselaw and news articles; the prosecutor engaged in misconduct during opening 

and closing statements; police tampered with evidence and conspired against 

him, as did the judges who presided over the case; the DNA evidence had been 

tampered with and was unreliable; he was wrongfully precluded from pursuing 

an investigation into the victim's boyfriend as a "bloody" fingerprint had been 

found on the utensil drawer (during the trial, the State's DNA expert said that 

although the boyfriend's fingerprint was found on the utensil drawer, it had no 

blood on it, and was not in a bloody area); the jury charge was erroneous; his 

confession was coerced and he should have been granted a Miranda rehearing 

after it was revealed that he had a handcuff on one arm when the stenographer 

transcribed his statement to police; the physical evidence against him should 

have been suppressed; the jury was prejudiced and engaged in misconduct; he 

1

 Miranda v. Arizona, 384 U.S. 436 (1966).
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was wrongfully precluded from trying on one of two knit gloves he allegedly 

wore during the killing; he was wrongly denied discovery essential to his attack 

on the credibility of the investigating officers who testified against him; the 

serology log books were doctored by police and prosecutors; the prosecutor 

presented perjured testimony regarding photos taken of the victim's car; defense 

witness testimony regarding his reaction to "learning" of the victim's death was 

wrongfully precluded; there was judicial bias against him; and appellate counsel

failed to advise him of PCR filing deadlines and was otherwise ineffective. 

Defendant also requested an evidentiary hearing and additional DNA testing.

The judge who heard the petition on September 28, 2007, ruled that it was 

time-barred, having been filed more than seven and one-half years after entry of 

the judgment of conviction. He considered defendant's claim of excusable 

neglect—based on appellate counsel's alleged failure to advise him of the time 

limits for filing for PCR—unavailing, as counsel had no duty to do so and no 

other exceptional circumstances existed. The judge also found the majority of 

defendant's claims to be barred under Rule 3:22-4 and 3:22-5 because either they 

were raised on direct appeal, or could have been raised on direct appeal, and 

recent caselaw and post-trial newspaper articles were not newly discovered 

evidence. The judge observed:
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[T]he only change between the defendant's 

arguments as presented today and those presented 

approximately ten years ago, is that the defendant has 

added myself and a three [j]udge Appellate [c]ourt 

[p]anel to the ever growing list of conspirators, which 

already includes the current Assignment Judge, two 

Superior Court [j]udges, the Bergen County 

Prosecutors office and the entire Hackensack Police 

Department. Accordingly, those arguments raised by 

the defendant which have already been adjudicated[,]

are barred by Rule 3:22-5.

Despite finding no prima facie case had been established, the judge 

granted defendant's request for additional DNA testing. Defendant appealed, 

but requested a stay of appeal pending the new DNA results. On August 15, 

2008, we dismissed defendant's appeal without prejudice, expressly authorizing 

him to file a new appeal after the additional DNA testing was completed. 

The parties spent two years litigating which items would be submitted for 

additional DNA testing. Ultimately, a judge signed orders on November 19, 

2009, and August 27, 2010, authorizing the testing, and in some cases the repeat

testing, of: (1) the black pants; (2) the burgundy windbreaker; (3) the victim's 

boyfriend's red gym bag (which had been found in the trunk of the victim's car) 

and up to four items from the car; (4) a surgical glove; (5) the cut wires from the 

victim's car; (6) "[v]aginal, oral and anal swabs designated as SP 81, 82 and 83"; 

(7) the left and right hand gloves and defendant's sneakers (at the State's 
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election); (8) the plastic bag found in the woods; (9) the victim's bra; and (10) 

the brown belt. After the additional testing was completed, the appeal was not 

reinstated.

On September 9, 2011, defendant filed a motion for a new trial based upon 

news articles regarding one of the officers whose work was crucial to the 

investigation and who testified at trial. As a result of these news articles, 

defendant alleged, among other things, that the officer was in the mob, a liar, 

and a contract killer for hire. The motion was denied on February 1, 2012,

because the claims were speculative and conclusory. That judge opined that if 

the application was treated as a PCR petition, it was time-barred. 

On March 13, 2012, defendant filed a motion in our court under the initial 

PCR appeal docket number, asking that the issues be consolidated with his 

appeal of the denial of a new trial and any issues that might arise from the 

ongoing DNA testing. That motion was denied on April 9, 2012, because 

defendant's initial appeal had been dismissed and was never reinstated.

The additional DNA testing was completed February 7, 2014. Among 

other things, it established again that defendant was the main contributor of one 

of the blood stains on the black pants, and the main contributor to another blood 

stain, with the victim a minor contributor. The DNA testing also revealed that 
8 A-0600-17

both the aunt and the boyfriend were excluded, and that defendant was the main 

contributor of the blood found on the cut wires in the victim's car. 

No DNA was present on the left-hand glove. As a result, on April 13, 

2015, defendant filed another petition for PCR, supported by a DNA, serology, 

and criminalistics expert. He sought the vacation of his convictions, further 

DNA testing, a new trial, or dismissal of the charges against him. Defendant 

claimed not only that the judge had improperly excluded his experts at trial, but 

he had improperly prevented him from exploring the criminality of the officers 

involved, as well as the status of the victim's boyfriend. In addition, defendant 

argued the new DNA test results indicating that only DNA belonging to the 

victim was found on the right glove meant that he was entirely innocent and his 

confession entirely false, while one of the principal officers in the investigation 

was "a serial mobster[,]" "a depraved monster[,]" and "[a] dirty cop[,]" who 

acted as a "mastermind" in framing defendant. 

Defendant contended that the State's entire case rested upon him having 

worn the recovered gloves, and since DNA did not establish that he had, it meant 

that an officer engaged in unlawful conduct, including planting evidence taken 

from the crime scene. He further contended that his innocence was supported 

by the absence of semen in vaginal swabs from the victim. Defendant's expert 
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report stated that since defendant's DNA was not found on the right glove, that 

meant he did not wear it, and since no DNA traces were found on the left glove, 

or on the inside of the plastic bag in which he allegedly transported his clothing 

to hiding places, or on the belt used to choke the victim, more DNA testing 

should be conducted. The State opposed the application on the basis that the 

test results were merely cumulative to the proofs presented at the two trials, 

would not change the jury's verdict, and ignored the crucial fact that only 

defendant's blood was found on the cut wires in the victim's car. 

Judge Margaret M. Foti heard oral argument, denying relief on August 29, 

2017. Now on appeal, defendant raises the following points:

POINT I

EVIDENTIARY HEARINGS ARE REQUIRED 

BASED ON APPELLANT'S PRIMA FACIE 

SHOWING THAT FACTS SUPPORTING HIS 

PETITION FOR POST-CONVICTION RELIEF 

WARRANT FURTHER DEVELOPMENT AND THE 

MERITORIOUS DEFENSES ASSERTED INVOLVE 

FACTS AND EXPERT OPINIONS WHICH ARE 

GENERALLY OUTSIDE OF THE TRIAL AND 

APPELLATE RECORD.

POINT II

THE PCR COURT FAILED TO COMPREHEND THE 

SIGNIFICANCE OF NEWLY AVAILABLE STR 

DNA TEST RESULTS AND ABUSED ITS 

DISCRETION IN FAILING TO HOLD 
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EVIDENTIARY HEARINGS, PRECLUDING 

SCIENTIFIC EVIDENCE, AND REFUSING TO 

ORDER ADDITIONAL DNA TESTING.

POINT III

THE PCR COURT ABUSED ITS DISCRETION IN 

DENYING DISCOVERY AND A PLENARY 

HEARING TO FURTHER DEVELOP EVIDENCE OF 

THIRD-PARTY GUILT.

POINT IV

THE PCR COURT ABUSED ITS DISCRETION IN 

FAILING TO ORDER ADDITIONAL SCIENTIFIC 

TESTING.

POINT V

THE TRIAL COURT WOULD NOT HAVE 

PRECLUDED APPELLANT'S EXPERT AND 

SCIENTIFIC EVIDENCE HAD THE STR DNA 

EVIDENCE BEEN AVAILABLE AT THE TIME.

POINT VI

PROSECUTORIAL MISCONDUCT IN THE FORM 

OF BRADY VIOLATIONS, FALSE TESTIMONY 

THAT REMAINS UNCORRECTED TO THIS DAY, 

AND INTENTIONAL TAMPERING AND 

DESTRUCTION OF EXCULPATORY PHYSICAL 

EVIDENCE DENIED APPELLANT'S RIGHT TO 

DUE PROCESS AND A FAIR TRIAL.

POINT VII

SUPPRESSION OF THE ALLEGED CONFESSION 

IS REQUIRED DUE TO VIOLATIONS OF THE 
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FOURTH, FIFTH, SIXTH, AND FOURTEENTH 

AMENDMENTS.

POINT VIII

THE PROCEDURAL BAR DOES NOT PRECLUDE 

APPELLANT'S PCR CLAIMS.

POINT IX

APPELLANT ASSERTS A FREE STANDING 

ACTUAL INNOCENCE CLAIM ON PCR.

I.

We address defendant's arguments by combining the issues he raises. 

Rule 3:22-12(a)(1)(A) provides that a first petition for PCR must be filed no 

more than five years after conviction unless a defendant can demonstrate 

excusable neglect and the reasonable probability that, if his factual assertions 

were true, enforcement of the time bar would result in a fundamental injustice. 

The rule further provides that a defendant may file a first PCR petition within 

one year of the recognition of a new constitutional right or of a factual predicate 

for relief that could not have been discovered earlier through reasonable 

diligence. R. 3:22-12(a)(1)(B). The trial court should relax the time bar only in

exceptional circumstances and when the error complained of "played a role in 

the determination of guilt." State v. Mitchell, 126 N.J. 565, 580 (1992); accord
12 A-0600-17

State v. Nash, 212 N.J. 518, 547 (2013); State v. Afanador, 151 N.J. 41, 52 

(1997).

Defendant's asserted reason for the late filing, that appellate counsel failed 

to advise him of his right to seek PCR and of the applicable filing deadline, lacks 

merit. It is well-established that ignorance of the law does not equate to 

excusable neglect. State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 

1998); accord State v. Cummings, 321 N.J. Super. 154, 166-67 (App. Div. 1999) 

(difficulty reading and writing and defendant's ignorance of law did not excuse 

late filing). 

In addition to defendant's failure to establish excusable neglect, many of 

the points raised in his petition are barred because, pursuant to Rule 3:22-5, they 

were previously addressed in prior appellate and trial court decisions, or could 

have been resolved on the direct appeal. These include: (1) the allegation the 

prosecutor engaged in misconduct during opening and closing statements; (2) 

that defendant was improperly precluded from presenting evidence that the 

victim's boyfriend was the actual perpetrator based in part on the presence of the 

victim's boyfriend's "bloody" fingerprint on the utensil drawer; (3) error in the 

jury charge; (4) that defendant's confession was coerced and he should have been 

granted a rehearing after it was "revealed" that he was handcuffed while in police 
13 A-0600-17

custody; (5) the physical evidence should have been suppressed; (6) the jury was 

prejudiced and engaged in misconduct; (7) the serology books were doctored by 

police and the prosecutor; (8) the prosecutor presented perjured testimony 

regarding photos taken of the victim's car; (9) other defense witness testimony 

was wrongfully precluded; (10) the DNA evidence was unreliable; and (11) the 

judges who presided over his prosecution were biased against him.

Defendant attempts to gain consideration of these issues a second, third, 

or fourth time, in part by arguing that appellate counsel was ineffective for 

failing to raise them. In order to establish that, pursuant to the familiar standard, 

defendant would have to show not only the particular manner in which counsel's 

performance was deficient, but also the manner in which the deficiency 

prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 

694 (1984); State v. DiFrisco, 137 N.J. 434, 457 (1994); State v. Fritz, 105 N.J. 

42, 58 (1987). A defendant must not make bald assertions, but must allege facts 

sufficient to demonstrate that his or her counsel's performance was substandard. 

State v. Porter, 216 N.J. 343, 355 (2013); Cummings, 321 N.J. Super. at 170.

Defendant has entirely failed to do more than make bald assertions and 

engage in broad-ranging speculation. This simply is not enough to satisfy his 
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prima facie burden. Porter, 216 N.J. at 355; Cummings, 321 N.J. Super. at 170. 

Many of the claims are simply factually inaccurate. 

There has never been any proof, for example, that the victim's boyfriend 

left a bloody fingerprint on a utensil drawer. In fact, to the contrary, the only 

evidence in the record regarding his fingerprint on the drawer was proffered by

the initial DNA expert, who testified it was taken from an area on which no 

blood was found, and the print itself had no blood. 

Defendant may be unhappy with the outcome of the Miranda motion. But 

years of litigation have still not made his confession one that should have been 

suppressed. 

Defendant is not entitled to an evidentiary hearing as he has not 

established "a reasonable likelihood that his or her claim, viewing the facts 

alleged in the light most favorable to the defendant, [would] ultimately succeed 

on the merits." R. 3:22-10(b); Porter, 216 N.J. at 355; State v. Preciose, 129 

N.J. 451, 462-64 (1992). Thus, this attack upon the judge's dismissal of his 2006 

PCR petition—essentially a belated appeal—lacks merit. R. 2:11-3(e)(2).

II.

With regard to the 2015 PCR petition, Judge Foti correctly concluded that 

defendant had not established all of the eight conditions required for additional 
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DNA testing under N.J.S.A. 2A:84A-32a(a). Again, by seeking to test more

items, defendant is in actuality engaging in a belated appeal of the 2007 decision.

Furthermore, as Judge Foti pointed out, the jury convicted defendant 

despite his argument at trial that the absence of DNA on the left glove mandated 

acquittal. Additional DNA testing would serve no purpose. The finding, for 

example, that no trace of defendant's DNA was found on the inside of the right 

glove is consistent with his statement to police that the victim pulled it off during 

the struggle. The jury heard that testimony before convicting defendant.

Defendant's claims regarding police and prosecutorial misconduct are 

nothing more than baseless allegations. No new trial should have been granted 

based on purely speculative assertions. 

N.J.S.A. 84:32a(d)(5) provides in part that a trial court must deny a motion 

for DNA testing unless

the requested DNA testing result would raise a 

reasonable probability that if the results were favorable 

to the defendant, a motion for a new trial based upon 

newly discovered evidence would be granted. The 

court in its discretion may consider any evidence 

whether or not it was introduced at trial.

Under subsection (5), a defendant need not prove that the DNA results 

will be favorable; rather, he or she need only establish a reasonable probability 

that if the DNA results are favorable to him or her, a new trial would be granted. 
16 A-0600-17

State v. Peterson, 364 N.J. Super. 387, 396-97 (App. Div. 2003). A defendant 

is entitled to a new trial where "the State's proofs are weak, when the record 

supports at least reasonable doubt of guilt, and when there exists a way to 

establish guilt or innocence once and for all." State v. Reldan, 373 N.J. Super. 

396, 402 (App. Div. 2004) (quoting State v. Thomas, 245 N.J. Super. 428, 436 

(App. Div. 1991)).

Defendant claims the new DNA test results prove his innocence—a claim 

that does not require much discussion. R. 2:11-3(e)(2). The new DNA results 

were inconsequential. Their lack of significance is highlighted by the findings 

regarding the cut wires and black pants—which corroborated, not refuted, his 

confession. Thus, his motion for more DNA testing was properly denied. 

III.

Defendant does not show excusable neglect or any fundamental unfairness 

that would impact application of the rules that bar further consideration. 

Appellate counsel was not ineffective because the issues defendant contends he 

mishandled had no merit from inception. The deficiencies defendant now 

alleges fail to meet either the performance or prejudice prongs of Strickland.
17 A-0600-17

Affirmed.