RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2990-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GREGORY ARMAND, a/k/a JREG LEONARD,
Defendant-Appellant. ________________________
Submitted June 3, 2025 – Decided July 7, 2025
Before Judges Smith and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-03-1146.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (John J. Bannan, Designated Counsel, on the brief).
Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Gregory Armand appeals from the Law Division's April 10,
2024 denial of his petition for post-conviction relief ("PCR") without an
evidentiary hearing. We affirm substantially for the reasons set forth by Judge
Jennifer Critchley in her well-reasoned, written opinion.
I.
On December 4, 2001, the East Orange Police Department responded to a
Halstead Street location, where they met C.W., 1 twelve years old at the time,
who alleged defendant, age twenty-three, had sexually assaulted her. C.W.
identified defendant, and he was arrested at the scene.
C.W. reported to the police that her friend C.F., also twelve years old, had
been dating defendant, and that on November 30, 2001, she had gone with C.F.
to spend the night with defendant. C.W. reported that during the night,
defendant touched her vagina, breasts and buttocks. C.W. stated this initially
occurred over her clothing but that defendant pulled down her shorts and
attempted to spread her legs. Defendant then began placing a condom on his
penis. C.W. stated she pushed defendant away and no further physical contact
took place. C.W. also stated there was another male in the house who was
1 Initials are used, and parties' names are otherwise not used, to protect the victim in this matter concerning a sexual offense. R. 1:38-3(c)(12). A-2990-23 2 identified only as "Cousin," and that he had also touched her breasts over her
clothing. C.W. said she told "Cousin" to leave her alone, which he did, and no
further incident occurred with him.
In March 2002, a grand jury indicted defendant for second degree
attempted aggravated sexual assault, N.J.S.A. 2C:5-1; three counts of second-
degree sexual assault by sexual contact, N.J.S.A. 2C:14-2(b); and third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a). In May 2002,
defendant pled guilty to third degree endangering the welfare of a child. 2
In October 2002, a sentencing hearing was held. At sentencing, counsel
addressed statements made by defendant to the psychologist who conducted his
Avenel Evaluation where defendant denied committing the offense. Counsel
stated defendant was "here to correct that now, . . . he's going to basically stick
with what he said at the time of his guilty plea." The judge then asked defendant
if he remembered the statements he made to the court at the plea hearing that he
"grabbed the buttocks of a 12-year-old female," and defendant answered "[y]es,
Your Honor." The judge also asked defendant if anyone forced or threatened
2 Because this case dates back to 2001, the indictment, judgment of conviction, and plea hearing transcript were unavailable. As such, the PCR Court relied upon defendant's pre-sentence report ("PSR") for the statement of facts and procedural history. A-2990-23 3 him to make that admission, to which defendant answered "[n]o, Your Honor."
When asked by the judge if what he told him during the plea hearing was true,
as to touching the buttocks of C.W., defendant answered "[y]es, Your Honor."
Defendant answered affirmatively that he had the opportunity to speak to his
counsel on the day of the sentencing hearing. Defendant was sentenced in
accordance with the plea agreement to time served, three years' probation, and
community supervision for life pursuant to Megan's Law, N.J.S.A. 2C:7-20.
In 2009, seven years after his conviction, defendant hired private counsel
to pursue PCR. However, no petition was ever filed. Due to ethics violations,
unrelated to defendant, counsel was suspended from practicing law twice, and
eventually, in 2017, disbarred.3
In the latter part of 2019, defendant met an individual named Tyrone
Barnes. Barnes told defendant he worked as a private investigator and was hired
by defendant's former counsel to investigate defendant's PCR. Barnes informed
defendant that he had interviewed C.W. sometime in either 2011 or 2012, and
that during this interview C.W. recanted her statement that defendant had
sexually assaulted her.
3 See In re Saluti, 229 N.J. 114, 114 (2017).
A-2990-23 4 Subsequently, in September 2020, defendant filed a pro se PCR petition
citing newly discovered evidence. In March of 2023, defendant was appointed
counsel who submitted a brief and appendix in support of defendant 's PCR.
Included in the appendix were certifications from defendant and Barnes. In his
certification, defendant alleged ineffective assistance of counsel ("IAC") from
both trial counsel and private counsel he had hired for his PCR. As to trial
counsel, defendant alleged he was ineffective for failing to investigate, and
stated he took the plea because he felt it was "obvious that nothing else was
going to be done on my behalf and all I could do was accept the plea."
Barnes' certification stated that he "vividly remember[ed] speaking with
[C.W.]," and that C.W., who he estimated to be around thirty years old at the
time, "recanted her statement, felt guilty for making a false statement, and was
very remorseful." Barnes averred that C.W. told him "[defendant] did not rape
or sexually assault her," and that "police officers pressured her to make a
statement against [defendant]." Barnes said the notes of his investigation were
turned over to the private counsel; a copy of the notes Barnes purported to have
taken were included in his certification. 4
4 The notes submitted by Barnes are mostly illegible. A-2990-23 5 In May 2023, the State filed an opposition to defendant's PCR petition;
defendant filed a supplemental brief in July 2023, which included certifications
from three of his siblings. Each siblings' certification stated they were at the
home at the time of the offense, and that until now they had never been contacted
by anyone regarding defendant's charges. Defendant's brother, Andre Armand
("Andre"),5 submitted a certification that he knew "the charges against my
brother are not true," because a now deceased "former friend of [C.W.] . . . told
me about the charges and gave me the information [C.W.] said that her
grandmother or her guardian made her make a complaint against [defendant]."
Further, Andre stated that C.W. was his "ex-girlfriend from three or four years
ago" and that he is "still friends with [C.W.] but only through Facebook."
Defendant's other brother stated he "was a high school student at the time of the
incident and [did not] really remember what the charges were against
[defendant]." Defendant's sister stated, "[defendant] and I have never discussed
anything about the charges."
5 Because defendant's family members share a common surname, we refer to them by their first names. No disrespect is intended. A-2990-23 6 In August 2023, oral argument was held on defendant's PCR. In
December 2023, PCR counsel notified the court that C.W. did not wish to
provide a statement or have any further involvement in the matter.
On April 9, 2024, in a cogent written decision, Judge Critchley denied
defendant's petition. The court found his PCR was time-barred because the
petition was filed seventeen years after sentencing, and there were "no
exceptional circumstances that warrant relaxation of the time bar."
The court also considered defendant's claims for IAC, and whether an
evidentiary hearing was warranted, rejecting both. Judge Critchley determined
trial counsel was not ineffective, nor was defendant prejudiced by counsel 's
actions, calling attention to defendant's statement at sentencing where he
admitted he did commit the offense and that he was being truthful, even though
he had denied as much in his presentencing report ("PSR").
Moreover, the PCR court determined that the information contained in his
siblings' certifications was not "favorable or exculpatory." Specifically, that
Andre's certification was unreliable as it comprised of "multiple layers of
hearsay." The PCR Court further found it was unlikely defense counsel would
have ever been able to interview C.W. because she was "under the umbrella and
control of the State" at that time, and there was "little to no chance that [C.W.]
A-2990-23 7 would have agreed to speak with [defendant's] trial counsel or an investigator
hired before the plea."
Judge Critchley also determined that Barnes' memory and his notes from
his interview with C.W. were not sufficient to constitute newly discovered
evidence. Finding that the notes and their contents were hearsay, the court
determined they would not likely have been admitted at trial because of the
"unreliable nature of the information." The court also pointed out that C.W. had
advised defendant's counsel that she would not participate any further in the
matter, but if she had provided testimony recanting her statements, that would
have constituted "new evidence that the [c]ourt would almost certainly have to
act upon."
Lastly, the PCR court determined that defendant failed to establish a prima
facie case for PCR warranting an evidentiary hearing because defendant failed
to establish a claim for IAC.
Defendant now appeals, raising the following points:
POINT I: THE PCR COURT ERRED IN PROCEDURALLY BARRING DEFENDANT FROM SEEKING [PCR].
POINT II: BECAUSE [DEFENDANT] RECEIVED [IAC], THE PCR COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR PCR.
A-2990-23 8 POINT III: IN THE ALTERNATIVE, BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT IN DISPUTE, THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING.
II.
"'[PCR] is New Jersey's analogue to the federal writ of habeas corpus.'"
State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Preciose, 129 N.J.
451, 459 (1992)). PCR provides "a built-in 'safeguard that ensures that a
defendant was not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013)
(quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). The standard of review
depends on the errors alleged. A PCR court's interpretation of the law is
reviewed de novo. Id. at 540-41. See State v. Pierre, 223 N.J. 560, 576 (2015).
First PCR petitions are governed by Rule 3:22-12(a)(1), which states:
[N]o petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless:
(A) it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice; or
(B) it alleges a claim for relief as set forth in paragraph (a)(2)(A) or paragraph (a)(2)(B) of this rule and is filed within the one-year period set forth in paragraph (a)(2) of this rule.
A-2990-23 9 R. 3:22-12(a)(2)(B) allows a PCR petition to be filed no more than one year after
"the date on which the factual predicate for the relief sought was discovered, if
that factual predicate could not have been discovered earlier through the exercise
of reasonable diligence." See State v. Brewster, 429 N.J. Super. 387, 398 n.3
(App. Div. 2013) (quoting R. 3:22-12(a)(2)(B)).
"A court may relax the time bar if the defendant alleges facts
demonstrating that the delay was due to the defendant's excusable neglect or if
the 'interests of justice' demand it." State v. Goodwin, 173 N.J. 583, 594 (2002)
(quoting State v. Mitchell, 126 N.J. 565, 576 (1992)). A court should do so only
"under exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997).
"The concept of excusable neglect encompasses more than simply providing a
plausible explanation for a failure to file a timely PCR petition." State v.
Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Therefore, "[t]o determine
whether a defendant has asserted a sufficient basis for relaxing the [Rule 3:22-
12's] time restraints, [the court] 'should consider the extent and cause of the
delay, the prejudice to the State, and the importance of the petitioner 's claim in
determining whether there has been an "injustice" sufficient to relax the time
limits." Ibid. (quoting Afanador, 151 N.J. at 52).
A-2990-23 10 These time-bar limitations are important because they "encourage[] those
believing they have grounds for [PCR] to bring their claims swiftly and
discourage[] them from sitting on their rights until it is too late for a court to
render justice." McQuaid, 147 N.J. at 485 (quoting Mitchell, 126 N.J. at 575-
76). If the PCR petition was filed more than five years after the entry of the
judgment of conviction, the PCR judge must exercise their "independent, non-
delegable duty to question the timeliness of the petition," and require the
defendant to "submit competent evidence to satisfy the standards for relaxing
the rule's time restrictions . . . ." State v. Brown, 455 N.J. Super. 460, 470 (App.
Div. 2018). Without doing so "the court does not have the authority to review
the merits of the claim." Ibid.
Here, defendant's PCR was time-barred. Defendant cannot show
excusable neglect. Defendant asserts that excusable neglect has been shown
because defendant did not become aware of Barnes' contemporaneous notes until
after his current PCR counsel was assigned. However, this fact is not an
exceptional circumstance constituting excusable neglect. Prior to hiring private
counsel in 2009—notably outside of the five-year window—defendant never
attempted to pursue PCR. When asked at the PCR hearing why defendant did
not file for PCR within the five-year window, counsel argued that defendant, a
A-2990-23 11 layperson, did not have a true understanding of the PCR application process.
Even so, assertions that a defendant is ignorant of the law, see State v. Murray,
162 N.J. 240, 246 (2000), or that they "decide[ed] to remain intentionally
ignorant of the legal consequences of [their] decision," Brown, 455 N.J. at 471,
does not constitute excusable neglect under R. 3:22-12(a).
Further, defendant does not meet the interest of justice standard to justify
relaxation of the time bar. This PCR was filed seventeen years after sentencing,
far outside the statutory window. As noted by the PCR court, much of the trial
record is lost due to the age of this case. As our Supreme Court has stated,
"'[a]chieving "justice" years after the fact may be more an illusory temptation
than a plausibly attainable goal when memories have dimmed, witnesses have
died or disappeared, and evidence is lost or unattainable . . . .'" McQuaid, 147
N.J. at 485 (1997) (quoting Mitchell, 126 N.J. at 575). Defendant also cannot
"submit competent evidence to satisfy the standard for relaxing the rule 's time
restriction . . . ." Brown, 455 N.J. Super. at 470. C.W. has made it known she
will not participate in this matter, the information contained in Barnes ' notes is
unreliable, and the siblings' certifications do not contain any exculpatory
information.
A-2990-23 12 Defendant also argues pursuant to Rule 33:22-12(a)(B)(2), his PCR
should not be time-barred because of the factual predication that his current PCR
counsel did not discover Barnes' notes prior to filing his petition. This argument
lacks merit. The information contained in the notes was discoverable prior to
the filing of this PCR in 2020. Defendant hired private counsel in 2009, and
Barnes' certification states he interviewed C.W. in 2011, or 2012, more than nine
years after his sentence and eight years before defendant filed his PCR in 2020.
Furthermore, Barnes' notes are undated, and state C.W. was thirty years
old at the time, which is not possible given she was twelve years old at the time
of the offense in 2001. The notes also have the date of the offense as December
1999, but the date of the offense was November 30, 2001.
Although defendant's petition is time barred, we address the merits of
defendant's claims for completeness.
III.
When a PCR Court does not hold an evidentiary hearing, the appellate
court conducts a review de novo. State v. Harris, 181 N.J. 391, 421 (2004). A
defendant is entitled to an evidentiary hearing only if they present a prima facie
case supporting PCR, the court determines there are material issues of fact that
cannot be resolved based on the existing record, and the court finds an
A-2990-23 13 evidentiary hearing is required to resolve the claims presented. R. 3:22-10(b);
see also State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). On
appeal, the court analyzes a PCR judge's decision to deny a hearing on an abuse
of discretion standard. Brewster, 429 N.J. Super. at 401.
IAC claims must satisfy the two-prong test set forth in Strickland v.
Washington6 and adopted by the New Jersey Supreme Court in State v. Fritz,
105 N.J. 42, 57-58 (1987). The two-part Strickland test requires a petitioner
show (1) the particular way counsel's performance was deficient, and (2) that
the deficiency prejudiced their right to a fair trial. Strickland, 466 U.S. at 687;
Fritz, 105 N.J. at 57-58. A failure to satisfy either prong of the Strickland
standard requires the denial of PCR founded on an IAC claim. 466 U.S. at 700.
"With respect to both prongs of the Strickland test, a defendant asserting [IAC]
on PCR bears the burden of proving his or her right to relief by a preponderance
of the evidence." State v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted).
Here, defendant asserts he has proved his claim for IAC. We disagree.
Under the first Strickland prong, defendant alleges trial counsel was deficient
for failing to investigate. However, there are virtually no records in existence
with the exception of the PSR, and the sentencing hearing transcript. As a result,
6 466 U.S. 668 (1984). A-2990-23 14 defendant cannot show by a preponderance of the evidence that trial counsel did
in fact fail to interview C.W., or that trial counsel could have interviewed C.W.
given she was under the umbrella of the State at that time. It is mere speculation.
Under the second Strickland prong, defendant cannot show he was
prejudiced. Where a defendant claims plea counsel was ineffective, "the focus
of the prejudice prong is 'whether counsel's constitutionally ineffective
performance affected the outcome of the plea process.'" State v. Hooper, 459
N.J. Super. 157, 176 (App. Div. 2019) (quoting Hill v. Lockhart, 474 U.S. 52,
59 (1985)). To sustain that burden, a defendant must demonstrate "'that a
decision to reject the plea bargain would have been rational under the
circumstances.'" Ibid. (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).
Here, defendant was facing five separate counts carrying a possibility of five to
ten years of imprisonment. Defense counsel was able to obtain a favorable plea
agreement where defendant pled guilty to only one count, the third-degree child
endangerment charge, and was sentenced to time served, three years' probation
and was subject to the requirements of Megan's Law. Although defendant
denied touching C.W. in his PSR, at the plea and sentencing he admitted to
touching C.W. on the buttocks and affirmed to the sentencing judge he was being
truthful. As such, it cannot be shown that it would have been rational to reject
A-2990-23 15 the plea under the circumstances. The PCR Court did not abuse its discretion in
denying an evidentiary hearing. Defendant failed to establish a claim for IAC.
As such, he fails to make a prima facie case for PCR.
Lastly, defendant's argument that Barnes' notes constitute newly
discovered evidence lacks merit. "A PCR application based on newly
discovered evidence is subject to the same analysis as a motion for new trial
based on the same." State v. Szemple, 247 N.J. 82, 106 (2021) (quotation and
alteration omitted). To obtain a new trial based upon such a claim, a criminal
defendant must establish the evidence is: "(1) material to the issue and not
merely cumulative or impeaching or contradictory; (2) discovered since the trial
and not discoverable by reasonable diligence beforehand; and (3) of the sort that
would probably change the jury's verdict if a new trial were granted." State v.
Carter, 85 N.J. 300, 314 (1981) (citing State v. Artis, 36 N.J. 538, 541 (1962)).
All three prongs must be satisfied before a defendant is entitled to a new
trial. State v. Ways, 180 N.J. 171, 187 (2004). Under the first prong,
"'[d]etermining whether evidence is "merely cumulative, or impeaching, or
contradictory,"' necessarily implicates prong three, 'whether the evidence is "of
the sort that would probably change the jury's verdict if a new trial were
granted."'" Nash, 212 N.J. at 549 (alterations in original) (quoting Ways, 180
A-2990-23 16 N.J. at 188-89). Under that rubric, "evidence that would have the probable effect
of raising a reasonable doubt as to the defendant's guilt would not be considered
merely cumulative, impeaching, or contradictory." Ibid. (quoting Ways, 180
N.J. at 189). In this respect, the first and third prongs of the Carter test "are
inextricably intertwined." Ibid.; see also State v. Behn, 375 N.J. Super. 409,
432 (App. Div. 2005) (recognizing the "analysis of newly discovered evidence
essentially merges the first and third prongs of the Carter test").
A "reviewing court must engage in a thorough, fact-sensitive analysis to
determine whether the newly discovered evidence would probably make a
difference to the jury." Ways, 180 N.J. at 191. This requires assessing such
evidence in the context of the "'corroborative proofs' in th[e] record." Szemple,
247 N.J. at 110 (quoting State v. Herrerra, 211 N.J. 308, 343 (2012)).
"Newly discovered evidence must be reviewed with a certain degree of
circumspection to ensure that it is not the product of fabrication, and, if credible
and material, is of sufficient weight that it would probably alter the outcome of
the verdict in a new trial." Ways, 180 N.J. at 187-88. "Courts generally regard
recantation testimony as suspect and untrustworthy." State v. Carter, 69 N.J.
420, 427 (1976), accord State v. Hogan, 144 N.J. 216, 239 (1996).
"Consequently, the burden of proof rests on those presenting such testimony to
A-2990-23 17 establish that it is probably true . . . ." Carter, 69 N.J. at 427 (citing State v.
Baldwin, 47 N.J. 379, 400 (1966)).
Carter's second prong "recognizes that judgments must be accorded a
degree of finality and, therefore, requires that the new evidence must have been
discovered after completion of trial and must not have been discoverable earlier
through the exercise of reasonable diligence." Ways, 180 N.J. at 192 (citing
Carter, 85 N.J. at 314).
Our scope of review of a determination of a motion for a new trial is
limited. Such a determination is committed to the "'sound discretion of the trial
judge'" and "'will not be interfered with on appeal unless a clear abuse has been
shown.'" State v. Armour, 446 N.J. Super. 295, 306 (App. Div. 2016) (quoting
State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000)). The burden remains
on the defendant to satisfy each prong of the standard. State v. Fortin, 464 N.J.
Super. 193, 216 (App. Div. 2020).
Here, the PCR court did not abuse its discretion in finding the proffered
evidence was insufficient to warrant a new trial. First, this evidence fails prongs
one and three because Barnes' notes would not likely have the effect of raising
a reasonable doubt as to this defendant's guilt. Thus, that evidence would not
"alter the outcome of the verdict." Ways, 180 N.J. at 189.
A-2990-23 18 As noted by the PCR court, these notes are unreliable for several reasons:
they are undated, contain the wrong month and year of the alleged crime, and
state that C.W. was around thirty years of age at the time of the interview, which
would mean the interview had to take place in 2019, two years after private
counsel was disbarred. Further, Barnes' certification and affidavit state that
C.W. accused defendant because she felt pressured by the police, however,
Andre's certification states he was told by another individual that C.W.'s
grandmother was the one who forced her to make the accusation. Andre's
statement contains multiple layers of hearsay, including a statement from an
unidentified, now deceased individual.
Additionally, the record is void of any "strong corroborative proofs" of
this recantation evidence. C.W. refuses to participate in this matter, and outside
of Barnes' notes, there is no affidavit or certification from C.W. to corroborate
the information contained in the notes.
This evidence also fails the second Carter prong. Defendant has not
presented any newly discovered evidence that could not have been discovered
with reasonable diligence at the time of trial.
Affirmed.
A-2990-23 19