STATE OF NEW JERSEY VS. JOSH POMPEY (89-12-1594, BERGEN COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        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
      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


                                       2                                 A-0600-17
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.


                                       3                                  A-0600-17
       Defendant's pretrial Miranda 1 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).

                                        4                                   A-0600-17
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:


                                       5                                  A-0600-17
                  [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


                                        6                                    A-0600-17
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


                                       7                                   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


                                        8                                    A-0600-17
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

                                        9                                   A-0600-17
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

                 10                      A-0600-17
            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




                                       11                                    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


                                          12                                     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




                                        13                                    A-0600-17
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


                                      14                                   A-0600-17
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.

                                        15                                    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.




                                      16                                   A-0600-17
Affirmed.




            17   A-0600-17

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