SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3697- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. FURN- LEE SALOMON, a/k/a FURN-LEE SOLOMON, Defendant-Appellant.

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Submitted February 28, 2024

– Decided May 3, 202 4 Before Judges Accurso and Walcott-Henderson. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97- 01

- 0121. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). William A. Daniel, Union County Prosecutor, attorne y for respondent (Milton S. Leibowitz, Assistant Prosecutor, of counsel and 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3697

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Defendant Furn-Lee Salomon appeals from the Decemb er 14, 2021 order denying his motion for a new trial based on newly d iscovered evidence , specifically the abstract of a scientific paper ide ntifying alcohol abuse as a risk factor for rupture of intracranial aneurysms, and h is motion for a medical expert at the State's expense. As we are convinced both motions were correctly decided, we affirm, essentially for the r easons expressed by Judge Candido Rodriguez, Jr. in the written decision acco mpanying his order. Defendant was convicted by a jury in 2003 of first -degree murder in the beating death of Fletcher Brown. State v. Salomon, No. A- 4149 -03 (App. Div. Apr . 28, 2006) (slip op. at 1-2). The State's forensic pathologist testified at trial she was not convinced Brown's death was a hom icide following her initial examination of the body

. Although she found ample evidence that Brown had been badly beaten, his death was caused by the rupt ure of a pre-existing berry aneurysm in the base of his brain. The pathologist testified the rupture of an aneurys m like that could occur spontaneously, or as a result of "a lot of alcohol in his system," cocaine use, or blunt force trauma. Toxicology results revealed Brown's blood alcohol l evel was .305 at the time of his death and there were co caine metabolites in his blood and urine

. According to the pathologist , she became certain the rupture3 A- 3697

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of the aneurysm and Brown's dea th were brought on by blunt force trauma to the back of his neck only after discovering an area of dramatic hemorrhage deep in the semispinalis muscles on the right side of his cervical spine. On cross-examination, the pathologist agreed with defe nse counsel that "Brown's use of cocaine and the stress of this fight or assa ult" could be a contributing factor to the bursting of the aneurysm, but she mai ntained the actual cause was blunt force trauma to Brown's neck. The defendant presented his own expert, the Chief o f Neuropathology at Mt. Sinai Hospital in Manhattan. Although agreeing with the State's pathologist that Brown's death was caused by the ru pture of a berry aneurysm, he disagreed the rupture was brought on by blunt fo rce trauma. In the defense expert's opinion, "[t]rauma is not a predisposing f actor in the rupture of a berry aneurysm in the absence of severe trauma to the hea d, the degree of trauma that would produce a skull fracture or other eviden ce of damage to the brain." He testified he was "not aware of any literature th at trauma predisposes to the rupture of this kind of aneurysm," in the absence o f that sort of severe head

trauma. The State's pathologist had conceded Brown did not suffer a skull fracture or any injury to his brain in the assault. The defense expert specifically referenced a New England Journal of Me dicine article that4 A- 3697

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included alcohol abuse among several risk factors f or rupture of intercranial aneurysms but not trauma. Defendant's expert opined the rupture of Brown's be rry aneurysm and death were likely the result of a transient increas e in blood pressure caused by "the stress of being attacked." The doctor also op ined the victim's cocaine use may have also had the same effect of temporarily ca using a rise in blood pressure resulting in a rupture in the aneurysm, no ting the "rather sizable" body of scientific "literature relating rupture of berry aneurysm to exposure to cocaine." The question of whether the rupture of Brown's berr y aneurysm was caused by blunt force trauma or something else was obvio usly hotly contested at trial. The issue was further addressed on direc t appeal in our rejection of defendant's contention that the trial court failed to adequately mold the jury charge to reflect his contention "that death was ca used by elevated blood pressure and cocaine use and was never contemplated by defendant." Salomon, Id. at 8- 15. Judge Rodriguez thus found that defendant's proffer of the abstract of a paper entitled "Alcohol Consumpti on and Aneurysmal Subarachnoid Hemorrhage," suggesting a link between ruptured aneurysms5 A- 3697

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and alcohol consumption

— although published in 2017, almost fifteen years after defendant's trial

— was "not exactly newly discovered evidence." The judge found the jury considered "the connection between the berry aneurysm and the alcohol consumption." T he State's own expert testified the victim's ruptured aneurysm could have happened spon taneously or as a result of "a lot of alcohol in his system." Applying the Carter factors, that new evidence "must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since t he trial and not discoverable by reasonable diligence beforehand; an d (3) of the sort that would probably change the jury's verdict if a new trial w ere granted " to entitle a defendant to a new trial, the judge found defendant 's evidence obviously could not meet the mark. State v. Carter, 85 N.J. 300, 314 (1981). The judge further found the State could not be forced to pay for a de fense expert "to interpret information in a one-page abstract, which appears m ore speculative than substantive." We agree that defendant's proffered abstract does n ot qualify as newly discovered evidence under the Carter test, thus obv iating the need for a defense medical expert. We affirm the denial of defendant's motions,6 A- 3697

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essentially for the reasons expressed by Judge Rodr iguez in his cogent and well-reasoned opinion. Affirmed.