### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO . A

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- 20

STATE OF NEW JERSEY,

Plaintiff

- Respondent,

v.

B.A.

,

Defendant

- Appellant.

_______________________

Argued June 7, 2022

– Decided June 28, 2022

Before Judges Currier and Smith.

On appeal from the Superior Court of New Jersey, Law

Division, Camden County, Indictment No. 13

- 08

- 2454.

B

. A

., appellant, argued the cause pro se.

Jason Magid, Assistant Prosecutor

, argued the cause for

respondent (Grace C. MacAulay, Camden County

Prosecutor, attorney ; Jason Magid, of counsel and on

the brief).

PER CURIAM

Defend ant B

. A

. was convicted in 2016 of third

- degree stalking and

sentenced to five years' probation conditioned upon 364 days incarceration in NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding 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

- 3.2 A

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the county jail. The sentencing court imposed a stalking restraining order upon

defendant as well. Defendant moved f or a new trial immediately before

sentenc ing , but the trial court denied it. We then affirmed on direct appeal.

State v B.A. , 458 N.J. Super. 391 (App. Div. 2019). Defendant now appeals

from the trial court's denial of his second new trial motion . He a lleges, for the

first time, that the sentencing court erred by violating his constitutional due

process rights

, and by "disregarding" certain "new" evidence that defendant

claims is exculpatory. We reject defendant's arguments on appeal and affirm.

We in corporate the factual history from our opinion on direct appeal

affirming defendant's conviction and sentence, i d. at 398

- 403, and we

summarize the relevant facts and procedural history.

Defendant and the victim (J.R.), were in a romantic relationship wh ich

began when J.R. retained defendant to do some independent contract work for

her consulting firm. After a few months, the romantic relationship cooled, and

J.R. ended it. The business relationship continued for several weeks until that,

too, soured. J.R. terminated defendant as an independent contractor and issued

him cease and desist letters to ward off defendant's unwanted contact with her

business clients. Defendant in turn sued J.R. for what he claimed were unpaid

fees.3 A

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Defendant then began to join professional groups J.R. belonged to and

attend various business networking events J.R. was slated to attend. Not only

did defendant pop up unannounced in those settings, he also appeared at events

where J.R. was the scheduled speaker, causing her alarm and concern.

Defendant also entered J.R.'s social media space , following her on Twitter.

U pon discovering this, she blocked him. Next, defendant produced a concerning

num ber of what he claimed were "parody" videos, lampooning J.R.'s business

and personal life. 1 The videos, which defendant admitted creating, were posted

on YouTube 2 , accessible to the public, and digitally tagged to J.R., which meant

she received a Google alert to the postings whenever they occurred. The videos

contained disturbing themes and images . Examples included: defendant

suggesting that "he was the subject of false accusations which could 'trigger an

emotional response'"; a movie clip of a wom a n being strangled; and at least one

video where defendant pretended to eat her pet dog

. J.R. eventually closed her

business and sought professional counseling as a result of defendant's conduct.

1 Evidence produced at trial revealed that defendant posted 176 videos to at

least two public sites over a four

- month period.

2 Evidence produced at trial showed that defendant posted the videos on

YouTube as well as another website called MonkeyCom.4 A

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At trial, d efendant was convicted of third

- degree stalking

. Defendant

moved for a second new trial in January 2020. Following a delay due in part to

the COVID

- 19 pandemic, t he trial court heard the second motion for a new trial

on October 4, 2020

.

After argument on the motion, t he court made findings, noting fir st that

while defendant claimed to have newly discovered evidence which showed that

he did not post disparaging videos about J.R., and that the State and the victim

conspired to conceal evidence from him, he never produced such "new"

evidence. The court f ound that the two certifications defendant presented to

support his motion included his own hearsay certification and an unsigned

certification from a " witness ." The court concluded that defendant presented

nothing during the motion hearing that could not have been adduced at trial. As

to the defendant's main point, that he did not tag J.R. in his videos, the court

noted there "was substantial evidence from which the jury could have concluded

beyond a reasonable doubt that [defendant] did tag her with his postings . . . ."

The court cited defendant's own trial testimony where he admitted to posting the

videos. The court also noted that both defendant and the victim were tech

- savvy

businesspeople who were quite familiar with the internet. The court also found

that, given defendant's technological awareness, i t was "improbable" that5 A

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defendant could post the offe nding videos "and not know and intend that she

would be aware of them and see them . . . ."

Beyond the "tagging" dispute, the court found that the evidence of

defendant's guilt on the stalking charge was "overwhelming," citing defendant's

threatening phon e call to J.R. , his multiple appearances at business networking

events where J.R. was appearing or speaking, and the existence of thousands of

files on his computer containing files with J.R.'s name and links to various

"revenge" websites. Finally, the co urt noted that defendant represented himself

at trial, presented multiple witnesses in his case, personally cross

- examined the

victim, and testified.

The court denied the application, finding that defendant failed to show the

"new" evidence was not discove rable before trial, and further finding defendant

failed to establish that the "new" evidence was of a nature which would change

the jury's verdict if a new trial was granted.

The court rejected defendant's allegation that the St a t e committed a Brady 3

v iolation , finding that the discovery defendant contended had been withheld was

actually the subject of several motions by defendant prior to trial. The court

noted that it had previously found the S tate preserved and disclosed all relevant

3 Brady v. Maryland , 373 U.S. 83 (1963).6 A

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evidence. None theless, t he court proceeded to find that if such Brady material

actually existed, defendant failed to show how he had been prejudiced, or how

such material would have changed the trial outcome

. Defendant appealed.

"A trial court's ruling on a motion for a new trial 'shall not be reversed unless

it clearly appears that there was a miscarriage of justice under the law.'" State v.

Armour

, 446 N.J. Super. 295, 305 (App. Div. 2016) (quoting R. 2:10

- 1)

. "[A]

motion for a new trial is addressed to t he sound discretion of the trial judge, and the

exercise of that discretion will not be interfered with on appeal unless a clear abuse

[of discretion] has been shown." Id

. at 306 (first alteration in original) (quoting State

v

. R usso

, 333 N.J. Super. 119, 137 (App. Div. 2000)).

Rule 3:20

- 1 states: "The trial judge on defendant's motion may grant the

defendant a new trial if required in the interest of justice." "[P]ursuant to Rule 3:20

-

1

, the trial judge shall not set aside a jury verdict unless 'it clearly and convincingly

appears that there was a manifest denial of justice under the law.'" Armour

, 446 N.J.

Super. at 305

- 06.

In State v. Carter

, the Court established a three

- pronged test for the grant of a

new trial due to the discovery of new evidence:

[T]o qualify as newly discovered evidence entitling a

party to a new trial, the new evidence must be[:] (1)

material to the issue and not merely cumulative or

impeaching or contradictory; (2) discovered since the7 A

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beforehand; and (3) of the sort that would probably

change the jury's verdict if a new trial were granted.

[85 N.J. 300, 314 (1981)

. ]

"To sustain a motion for a new trial the proffered evidence must meet all three

aspects of the test." State v. Artis , 36 N.J. 538, 541 (1962) (citing State v. Johnson

,

34 N.J. 212, 223 (1961)). In State v. Ways

, the Supreme Court defined "material"

evidence under the Carter test

, stating: "Material evidence is any evidence that would

'have some bearing on the claims being advanced'" by the defense. 180 N.J. 171,

188 (2004) ( quoting State v. Henries

, 306 N.J. Sup er. 512, 531 (App. Div. 199 7 )).

Defendant's main argument is that the trial court somehow disregarded his

proffer of "new" evidence. We disagree

. The record shows that defendant never

produced the supposed new evidence despite having multiple opportunities before

and during trial

. Nor did defendant present any new evidence in support of his

motion for a new trial. The record also shows that the trial court carefully considered

defendant's certifications and found their contents revealed nothing that could not

have been proffered at trial with reasonable due diligence

. Even so, the trial court

considered the general descriptions of defendant's "n ew" evidence and found that

had such evidence been produced, it would have been "merely cumulative,

impeaching, or contradictory " evidence, not rising to the level of materiality required8 A

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under Carter

. 85 N.J. at 314. The trial court found defendant offered no new proofs

w hich would have changed the outcome

. Consequently, w e find no abuse of

discretion

.

Turning to d efendant's argument for a new trial based on his contention that

the State committed a Brady violation; we find it has no merit. Defendant's assertion

of this issue was previously rejected by the trial court. Therefore, t he court properly

exercised its discretion in rejecting the claim

.

Finally, defendant raised a constitutional due process claim on app eal,

alleging that the restraining order violated his constitutional right to confront

J.R., his accuser

. We have no obligation to address this argument on appeal

where it was not raised before the trial court

. Zaman v. Felton

, 219 N.J. 199,

226

- 27 (2014). For completeness, we note that the due process argument is

undermined by the trial record. Defendant extensively cross

- examine d J.R. at

trial. Therefore, he was not denied any due process right.

Any remaining arguments by defendant not addresse d here lack sufficient

merit to warrant discussion in a written opinion. R. 2:11

- 3(e)(2).

Affirmed.