DOCKET NO.

A-5822-08T4
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

State v. Nash
Decided Jun 12, 2013

DOCKET NO. A-5822-08T4 Defendant appeals from the trial court's order
denying his 2008 motion to vacate a 1992
06-12-2013
judgment of conviction and to grant him a new
STATE OF NEW JERSEY, Plaintiff-Respondent, trial pursuant to Rule 3:20-1. Defendant relied on
v. DAVID NASH, Defendant-Appellant. the alleged discovery of a letter, purportedly from
2 an *2 informant, who admitted he "set up"
Joseph E. Krakora, Public Defender, attorney for
defendant. Applying State v. Carter, 85 N.J. 300,
appellant (Lora B. Glick, Designated Counsel, on
314 (1981), the court denied the motion. We have
the brief). Marlene Lynch Ford, Ocean County
reviewed defendant's arguments in light of the
Prosecutor, attorney for respondent (Samuel
facts and applicable law, and affirm.
Marzarella, Supervising Assistant Prosecutor, of
counsel; Nicholas D. Norcia, Assistant Prosecutor, I.
on the brief).
Defendant was indicted on October 3, 1990, and
charged with fourth-degree knowingly operating
PER CURIAM an unauthorized sanitary landfill facility, N.J.S.A.
48:13A-6.1 and -12 (count one); fourth-degree
NOT FOR PUBLICATION
knowingly engaging in the business of solid waste
WITHOUT THE
collection or disposal without a certificate,
APPROVAL OF THE APPELLATE N.J.S.A. 48:13A-6 and -12a (count two); and
DIVISION third-degree reckless release and abandonment of
Before Judges Ostrer and Kennedy. toxic pollutants as defined in N.J.S.A. 58:10A-3,
N.J.S.A. 2C:17-2a(2) (count three).
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 90- The case began when police in Jackson Township
10-1134. stated they received a tip about illegal dumping on
defendant's property. Defendant unsuccessfully
Joseph E. Krakora, Public Defender, attorney for sought disclosure of the informant. At defendant's
appellant (Lora B. Glick, Designated Counsel, on 1991 trial, police lieutenant David Burns testified
the brief). that a call from a code enforcement officer
Marlene Lynch Ford, Ocean County Prosecutor, prompted him to visit defendant's property on May
attorney for respondent (Samuel Marzarella, 25, 1990.1 He observed a twenty-feet wide, eight-
Supervising Assistant Prosecutor, of counsel; feet deep hole, and a trailer filled with
Nicholas D. Norcia, Assistant Prosecutor, on the 3 construction debris. *3
brief). PER CURIAM 1 However, in a September 11, 1990
certification, Burns stated a concerned
citizen's call prompted his visit.

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 State v. Nash DOCKET NO. A-5822-08T4 (N.J. Super. Jun. 12, 2013)

One evening about a month later, Jackson police 3 The court mistakenly stated that the fourth-

officer Denis Baird observed a substantial amount degree offenses were punishable by up to

of construction debris, a large crane, and a mound three years in prison and a $50,000 fine, as
opposed to a maximum of eighteen months
of dirt about fifteen-feet high. Upon a dispatcher's
and a $50,000 fine. N.J.S.A. 2C:43-6a(4);
report of dumping on defendant's property, the
N.J.S.A. 48:13A-12 (stating that criminal
officer returned the same day to find the trailer
violation of solid waste management
emptied, the crane replaced by a bulldozer, the
statute shall be a fourth degree crime
mound lowered, and the pit filled with soft dirt
punishable by imprisonment for not more
from which construction materials emerged. A than eighteen months, and a fine of
subsequent search pursuant to a warrant uncovered $50,000 notwithstanding N.J.S.A. 2C:43-3,
materials from the truck, household waste, tree which sets a maximum $10,000 fine for
trunks and roots, and automotive parts, discovered fourth-degree offenses).
in layers, indicating burial over time. Several large --------
tanks, one leaking what was later confirmed to be
a petroleum product, were also unearthed. Defendant's 1992 conviction provided a predicate,
in part, for an extended term sentence as a
A search of defendant's office also discovered persistent offender following defendant's
evidence that James Wall had sold defendant conviction in 1995 of twenty-three counts of a
equipment, including a tractor and trailers. The thirty-five count indictment. Defendant was
State also called a witness who testified he paid convicted of three counts of first-degree arson for
defendant in May 1990 to remove debris from his pecuniary gain, N.J.S.A. 2C:17-1d; four counts of
construction project. Defendant called a witness second-degree aggravated arson, N.J.S.A. 2C:17-
who claimed to have seen a man other than 1a; second-degree release or abandonment of
defendant clear ground behind defendant's house 5 hazardous or *5 toxic waste, N.J.S.A. 2C:17-
about four to six years earlier and bury various 2a(2); third-degree violation of the Water
items in a big hole. Pollution Control Act, N.J.S.A. 58:10A-10(f)(2);
In October 2011, defendant was found guilty of all and multiple counts for conspiracy, burglary, and
counts after a jury trial. At sentencing, the court theft-related offenses. The State argued that some
4 denied the State's *4 motion for a discretionary of the crimes for which defendant was convicted
extended term as a persistent offender pursuant to were committed in retaliation against persons he
N.J.S.A. 2C:44-3a.2 The court sentenced believed were responsible for his 1992 conviction.
defendant, then forty-one years old, to concurrent The court granted the State's motion for a
prison terms of five years on count three, and three discretionary extended term, N.J.S.A. 2C:44-3a,
years each on counts one and two, and imposed a and sentenced defendant on count two to a term of
$25,000 fine.3 We affirmed defendant's conviction life imprisonment with a period of parole
on counts two and three, but reversed on count ineligibility of twenty-five years. After accounting
one. State v. Nash, No. A-3744-91 (App. Div. for merger and consecutive sentences imposed on
Dec. 14, 1993). The Supreme Court denied various other counts, defendant's aggregate
defendant's petition for certification. State v. Nash, sentence was life plus forty years, with a total
135 N.J. 467 (1994). parole ineligibility term of forty-five years. We
2 In addition to multiple adult arrests, affirmed defendant's conviction and sentence on
defendant was convicted of receiving
appeal. State v. Nash, No. A-3402-95 (App. Div.
stolen property in 1975 and 1984, and theft Sept. 17, 1997). In particular, we rejected
by deception in 1988. defendant's argument that his sentence was
manifestly excessive, given "the crimes

2
 State v. Nash DOCKET NO. A-5822-08T4 (N.J. Super. Jun. 12, 2013)

committed, defendant's criminal history, and the letter would have materially affected the outcome
requirement that society be protected from such of the trial. As a result of an acquittal on the 1991
individuals and the consequences of their unlawful charges, defendant argued he would have received
acts." Id. at slip op. at 6. The Supreme Court a reduced sentence on the 1996 conviction.
denied certification. State v. Nash, 153 N.J. 51
In support of the motion, defendant's attorney
(1998).
Philip Pagano submitted a certification that
Before filing his 2008 motion for a new trial, addressed defendant's alleged discovery of the
defendant filed an unsuccessful petition for post- evidence. Pagano stated:
6 conviction relief from *6 his 1992 judgment of
Before the trial, the defendant made a
conviction. Although the court did not disturb the
motion to reveal the name of a confidential
conviction, by an order entered April 8, 1997, the
informant. That motion was denied. The
court required reconsideration of the $25,000 fine,
defendant filed an action with the United
which was later reduced to an aggregate of
States District Court. That court required
$12,500. We affirmed. State v. Nash, No. A-2852-
the prosecutor's office to let the defendant
97 (App. Div. Oct. 29, 1999). Defendant also
review their files.
challenged the 1992 conviction in federal court,
While reviewing the files, defendant found
which dismissed his habeas corpus petition as
a 1/15/91 letter from James Wall to the
untimely in 2001. Nash v. Hendricks, Civ. Action
prosecutor handling the file. Defendant
No. 00-2189 (D.N.J. June 21, 2001).
now has the name of the informant and
Defendant filed two State, and one federal, with this information he wants a new trial.
collateral attacks to his 1995 judgment of The defendant feels he can win an
conviction. We affirmed the trial court's denial of a acquittal of all charges and this would
1998 PCR petition. State v. Nash, No. A-2028-99 change the sentence of a crime he was
(App. Div. Apr. 25, 2001), certif. denied, 169 N.J. [later] found guilty of. The 1/15/91 letter is
611 (2001). We also affirmed the trial court's attached hereto as Exhibit A.
denial of a second PCR petition as untimely. State
Pagano attached what appears to be a signed,
v. Nash, No. A-0721-04 (App. Div. Sept. 5, 2005),
typed letter from James Wall, dated January 15,
certif. denied, 186 N.J. 242 (2006).
8 1991, addressed to the *8 assistant prosecutor
In the meantime, in April 2002, defendant filed a handling his case, and copied generally to the
federal habeas corpus petition, challenging the Jackson Police Department. The letter stated:
1995 judgment of conviction. The District Court
stayed the petition in 2004 because of unexhausted
state claims. The court granted defendant's motion
to reopen the petition in 2006, and in 2007 granted
the State's motion to dismiss on procedural and
substantive grounds. Nash v. Hendricks, No. 02-
2082, 2007 U.S. Dist. LEXIS 77452 (D.N.J. Oct.
7 18, 2007). *7

On August 20, 2008, defendant filed his motion

for a new trial of the 1991 charges under Rule
3:20-1. He claimed the State withheld a letter from
James Wall, in which Wall admitted that he "set
up" defendant. Defendant argued disclosure of the

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 State v. Nash DOCKET NO. A-5822-08T4 (N.J. Super. Jun. 12, 2013)

Pursuant to our phone conversation last I. DEFENDANT'S MOTION FOR A

week, regarding testifying against Mr. NEW TRIAL SHOULD HAVE BEEN
Nash, for the illegal dumping of GRANTED
construction debris on his property, as I A. The Prosecutor's failure to turn
said, I agreed with Dave Burns and Skip over exculpatory evidence to the
Brownlee of the Jackson Township Police defense violated Brady[ v.
Department to set-up Mr. Nash, and that I Maryland, 373 U.S. 83, 83 S. Ct.
would not have to testify in court against 1194, 10 L. Ed. 2d 215 (1963)] and
him. warrants the grant of a new trial.
Also, Patrolman Baird, agreed to keep my B. Judge Hodgson's improper
identity anonymous for the information I reliance on statements contained in
provided him on Mr. Nash [sic] activities, I defendant's PSR unduly prejudiced
hope you will honor my request to remain defendant and a new trial should be
anonymous so no animosity will come granted.
between Mr. Nash and myself.
In response, the State argues that the court
At the 2008 motion hearing, Pagano argued that correctly found the letter was not material under
Wall was in the waste disposal business and had Carter, supra, 85 N.J. at 314, because there was
tricked defendant into buying construction overwhelming evidence of defendant's guilt.
equipment from him and engaging in disposal Moreover, the letter was not withheld under
activities that defendant did not know were illegal. Brady, supra, nor was it favorable and material.
Had Wall's identity been provided pre-trial, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d
defendant would have called him to testify. at 218. The State also questioned the genuineness
of the letter.
Judge Francis Hodgson denied the motion.
Applying Carter, supra, the court concluded that II.
the letter was not material. The court also referred
We need not reach the issue of the letter's
to defendant's admissions, included in his
materiality. Simply put, defendant has failed, as a
presentence report, that he removed debris without
threshold matter, to present cognizable evidence to
a license, and owned the leaking oil tanks.
authenticate the letter, and to establish it is
On appeal, defendant raises the following points genuine.
9 for our consideration: *9
Defendant relies on Pagano's certification, but
Pagano does not claim any personal knowledge
regarding the discovery of the letter. Instead, he
stated, "While reviewing the files, defendant
found a 1/15/91 letter from James Wall[.]" Nor
10 does *10 Pagano provide a copy of the district
court's order, pursuant to which disclosures were
made including, allegedly, the Wall letter.

Pagano's certification fails to comply with Rule

1:6-6, which states, "If a motion is based on facts
not appearing of record or not judicially
noticeable, the court may hear it on affidavits
made on personal knowledge, setting forth only
facts which are admissible in evidence to which

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 State v. Nash DOCKET NO. A-5822-08T4 (N.J. Super. Jun. 12, 2013)

the affiant is competent to testify[.]" See Celino v. quotation marks omitted). It is questionable that
Gen. Accident Ins., 211 N.J. Super. 538, 544 Wall, if he indeed wanted to avoid identification
(App. Div. 1986). We have previously disapproved as someone who "set up" defendant, would have
reliance on evidence presented through an expressed that desire in a signed writing and sent
attorney's certification like Pagano's: it to both the prosecutor, and to the police
department in general. Defendant has not
None of the documents were certified as
presented the alleged court order that prompted
true copies — nor was there any
the letter's disclosure. He also has not stated when
authentication of the documents. See
or how he discovered it, particularly since the
generally N.J.R.E. 901. Moreover, there is
habeas corpus petition pertaining to the 1992
nothing that suggests the certifying
conviction was denied in 2001 — long before the
attorney had any firsthand knowledge
2008 motion for a new trial. Nor can defendant
concerning the exhibits or facts contained
persuasively contend that, in the absence of the
therein. The documents were at best
letter, "he did not receive a fundamentally fair
hearsay, once or more removed. One who
12 trial." Ibid. *12
has no knowledge of a fact except for what
he has read or for what another has told "Newly discovered evidence must be reviewed
him cannot provide evidence to support a with a certain degree of circumspection to ensure
favorable disposition[.] that it is not the product of fabrication[.]" State v.
[Sellers v. Schonfeld, 270 N.J. Super. 424, Ways, 180 N.J. 171, 187-88 (2004); see also State
428 (App. Div. 1993).] v. Buonadonna, 122 N.J. 22, 51 (1991) (affirming
denial of new trial motion that was based on
Since Pagano's certification is not based upon his
"sketchy evidence"). Defendant's motion for a new
personal knowledge of the discovery of the letter,
trial is not the setting to relax the procedural and
11 it is not competent evidence. *11
evidentiary requirements for consideration of
Moreover, defendant's implicit statement — evidence outside the record.
conveyed in Pagano's certification — that
Affirmed.
defendant discovered the letter is inadmissible
hearsay. See Pressler & Verniero, Current N.J. I hereby certify that the foregoing is a true copy of
Court Rules, comment on R. 1:6-6 (2013) the original on file in my office.
("Affidavits by attorneys of facts not based on
CLERK OF THE APPELLATE DIVISION
their personal knowledge but related to them by
and within the primary knowledge of their clients
constitute objectionable hearsay." (citations
omitted)).

There also is no basis to admit defendant's

statement under the principle of fundamental
fairness, as recognized in State v. Bunyan, 154
N.J. 261, 271 (1998). Defendant's statement does
not bear "clear indicia of reliability." Ibid. (internal