State of New Jersey v. Richard Busby, Jr.

• Court: New Jersey Superior Court Appellate Division
• Decided: March 4, 2026
• Docket: A-3862-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3862-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD BUSBY, JR.,

Defendant-Appellant. __________________________

Submitted January 14, 2026 – Decided March 4, 2026

Before Judges Smith and Jablonski.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 16-03-0454.

Jennifer N. Sellitti, Public Defender, attorney for appellant (James D. O'Kelly, Designated Counsel, on the briefs).

Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Richard Busby, Jr. appeals from a Law Division order

denying his application for post-conviction relief ("PCR") without an

evidentiary hearing. After reviewing the record, our prior opinion, and

controlling precedent, we affirm.

I.

Defendant was indicted for multiple crimes stemming from a home

invasion and a homicide that occurred in Freehold on July 31, 2011. Those

offenses included conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and

N.J.S.A. 2C:15-1; armed robbery, N.J.S.A. 2C:15-1; aggravated arson,

N.J.S.A. 2C:17-1(a); felony murder, N.J.S.A. 2C:11-3(a)(3); attempted

murder, N.J.S.A. 2C:2C:5-1 and N.J.S.A. 2C:11-3; unlawful possession of a

weapon, N.J.S.A. 2C:39-5(b); possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a); and certain persons not to have weapons, N.J.S.A. 2C:39-

7(b)(1).

Following a September 2018 trial, defendant was convicted of armed

robbery, felony murder, and attempted murder. He was acquitted of the

weapons and arson charges. The State dismissed the conspiracy and certain

persons offenses. State v. Busby, No. A-2501-18 (App. Div. March 16, 2022)

(slip op. at 3).

A-3862-23 2 Testimonial evidence established that co-defendants Ellis Goodson,

Jeffrey Mayhue, and Ranu Sinha initially planned to burglarize the residence

of Michael Conway, a known drug dealer, to steal cash and marijuana. Ibid.

Goodson, who agreed to act as driver for Mayhue and another participant,

testified that Mayhue recruited defendant as a replacement. Ibid.

On the evening of July 30, 2011, Goodson, Mayhue, and defendant

traveled together to Sinha's residence for final planning and then proceeded to

Conway's house. Ibid. Goodson observed a firearm in Mayhue's possession

during the drive, although he did not notice defendant directly observe the

weapon. Ibid.

At approximately 11:30 p.m., Goodson dropped Mayhue and defendant

into a field near Conway's home. Id. at 4. Goodson periodically drove past

the residence until the early morning hours but saw nothing unusual. Ibid. At

about 7:00 a.m., Mayhue contacted Goodson, stating "something bad

happened," and instructed him to meet in Newark. Id. at 5.

Cheri Plamondon, Conway's girlfriend, testified that she and Conway

were sleeping when intruders entered their home, zip-tied both victims, and

demanded money and car keys. Ibid. Plamondon believed there were two

males involved. Ibid. During the robbery, Conway struggled with one

A-3862-23 3 assailant and was shot, which later resulted in his death. Id. at 5-6.

Plamondon also described how the intruders poured gasoline in the bedroom

and ignited a fire. Id. at 6. She was able to escape. Id. at 7.

Investigation revealed a flammable liquid was used to start the fire with

Conway's body discovered in the burned residence. Ibid. Video surveillance

showed Mayhue and another, less stocky individual, approaching the house.

Ibid. Gardening gloves recovered from Conway's stolen car contained

Conway's blood and a Band-Aid that contained defendant's DNA. Id. at 7-8.

Pawn shop records documented both Mayhue and defendant selling jewelry

that belonged to Plamondon shortly after the incident. Id. at 8-9.

After the State rested its case, defendant brought a Reyes 1 motion

seeking a judgment of acquittal. The trial court denied that application. T he

court found that substantial evidence—testimonial, physical, and

circumstantial—supported the armed robbery, felony murder, and attempted

murder charges, including defendant's physical presence, his participation in

the planning, possession of stolen items, and DNA evidence. At defendant's

request and over the State's objection, the court charged the jury with the

affirmative defense for felony murder, N.J.S.A. 2C:11-3(a)(3)(a) to (d).

1 State v. Reyes, 50 N.J. 454, 458-59 (1967). A-3862-23 4 The jury convicted defendant of a lesser-included count of second-

degree robbery, first-degree felony murder, and first-degree attempted murder.

The trial judge merged the robbery with the felony murder conviction and

sentenced defendant to a thirty-year prison term with a thirty-year parole

disqualifier to be served consecutively to an extended term of thirty-years'

imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant challenged his conviction on appeal and specifically argued

the court erred in denying defendant's motion to dismiss the felony murder

count under Rule 3:18-1. We affirmed defendant's conviction on appeal.

Busby, slip op. at 2. The Supreme Court denied certification. State v. Busby,

252 N.J. 101 (2022).

On September 8, 2023, defendant, representing himself, filed a PCR

petition. Assigned counsel supplemented that application on April 14, 2024.

Defendant raised the following issues in his application:

Point One

Defendant's conviction on the charge of armed robbery and felony murder must be reversed as there is not a scintilla of evidence presented that he used a gun or was aware at any time that a gun was being used or was aware at any time that the robbery involved the use of a gun.

A-3862-23 5 I.

Post conviction relief allows for review of the appellate decision affirming the trial court ruling made contrary to Rule 3:18-1. Inferences alone cannot support a conviction for felony murder and armed robbery and the inferences allowed here subvert defendant's due process rights under the [Fourteenth] Amendment.

A.

The decision of the trial court and Appellate Division was clearly erroneous as to the evidence surrounding the defendants knowledge of a gun and use of a gun.

Point Two

An evidentiary hearing is required in this matter to address the factual issues presented.

The PCR judge denied defendant's application without an evidentiary

hearing and found that the petition was both procedurally barred and

substantively infirm. The judge determined that defendant improperly

attempted to relitigate an issue previously considered and rejected by this court

on direct appeal. The PCR judge also addressed the merits of defendant's

claim and concluded the trial testimony "clearly established" defendant was a

willing participant in the robbery because of the ample evidence from which a

jury could find defendant was aware Mayhue was armed. The PCR judge also

A-3862-23 6 acknowledged that the trial court, over the State's objection, instructed the jury

to consider an affirmative defense charge for the felony murder accusation.

Defendant appeals and raises two issues for our consideration.

Point I.

Defendant's PCR argument that the trial court erred in denying defendant's [Rule] 3:18-1 motion to dismiss the felony murder and armed robbery counts at the conclusion of the State's case, a decision affirmed by this court on direct appeal, was not procedurally barred by [Rule] 3:22-5 as a matter previously adjudicated on the merits.

Point II.

The Appellate Panel's opinion affirming the trial court's denial of [d]efendant's [Rule] 3:18-1 motion on direct appeal was demonstrably erroneous.

II.

Our Supreme Court recently reaffirmed our role in reviewing PCR

petitions: "Our review of a PCR court's factual findings is 'necessarily

deferential.' However, we review a PCR court's legal conclusions de novo."

State v. Hernandez-Peralta, 261 N.J. 231, 246 (2025) (citation omitted)

(quoting State v. Nash, 212 N.J. 518, 540 (2013)).

The gravamen of defendant's present argument is that the PCR court did

not apply our decision in State v. Berisha, 458 N.J. Super. 105 (App. Div.

A-3862-23 7 2019), properly, and that our prior opinion in the current matter affirming the

denial of defendant's Reyes motion was "demonstrably erroneous." This, he

contends, resulted in a fundamental injustice to him that requires a new trial.

We disagree.

Defendant essentially seeks to appeal from an issue already considered

and rejected by this court in our prior opinion. Defendant relies on Berisha, in

which we acknowledged that a "demonstrably erroneous" determination made

in a prior Appellate Division opinion might be sufficient to negate the

procedural bar to a PCR under Rule 3:22-5. 458 N.J. Super. at 115.

Rule 3:22-5 bars re-litigation of issues and states "[a] prior adjudication

upon the merits of any ground for relief is conclusive whether made in the

proceedings resulting in the conviction or in any post-conviction proceeding

brought pursuant to this rule or prior to the adoption thereof, or in any appeal

taken from such proceedings." However, "Rule 3:22-5's bar to review of a

prior claim litigated on the merits 'is not an inflexible command.'" Nash, 212

N.J. at 547 (quoting State v. Franklin, 84 N.J. 516, 528 (2005)).

"[O]ur courts are not powerless to correct a fundamental injustice."

Nash, 212 N.J. at 547. A fundamental injustice exists "when the judicial

system has denied a 'defendant with fair proceedings leading to a just outcome'

A-3862-23 8 or when 'inadvertent errors mistakenly impacted a determination of guilt or

otherwise wrought a miscarriage of justice.'" Ibid. (quoting State v. Mitchell,

126 N.J. 565, 587 (1992)). "To succeed on a fundamental-injustice claim, the

petitioner must make 'some showing' that an error or violation 'played a role in

the determination of guilt.'" Ibid. (quoting Mitchell, 126 N.J. at 587). In

essence, the fundamental-injustice standard described in Nash allows courts to

vault procedural hurdles when a petitioner would have a meritorious claim but

for the procedural bar.

Applying those principles we are satisfied defendant has not been

subjected to any fundamental injustice.

First, the issues concerning the sufficiency of the evidence presented by

the State to withstand a Reyes challenge were directly addressed on

defendant's direct appeal. The plain language of Rule 3:22-5, therefore,

requires denial of the PCR petition. See State v. McQuaid, 147 N.J. 464, 484

(1997) ("'Preclusion of consideration of an argument presented in [PCR

petition] should be effected only if the issue is identical or substantially

equivalent' to that issue previously adjudicated on its merits." (internal

citations omitted)). A plain reading of the issue raised before the PCR court

was identical to that raised by defendant in his direct appeal.

A-3862-23 9 Second, we reject defendant's premise that our affirmance of the trial

court's order denying defendant's Reyes motion was "demonstrably erroneous."

In that decision, we considered the jurisprudence that controls a Reyes

application, and reviewed the record in light of that standard. We reviewed

both the record and the trial court's decision and substantively concluded "the

court considered all the presented evidence and, giving all favorable inferences

to the State, properly denied the motion for acquittal." On our de novo review

here, we arrive at the same conclusion.

Third, the evidence, both direct and circumstantial, and considered as a

whole, provides more than sufficient justification to permit the denial of

defendant's Reyes motion.

The evidence presented at trial provides sufficient circumstantial support

for defendant's robbery conviction. Jewelry belonging to Plamondon was

taken during the incident, and she testified that intruders rummaged through

her drawers; the stolen jewelry was later sold at a pawn shop near defendant 's

home by an individual using defendant's photo identification. Conway's car

and marijuana were stolen by the intruders with surveillance footage capturing

the car leaving the residence, EZ Pass records corroborating its travel

northbound that morning, and ultimately, the car was found abandoned near

A-3862-23 10 defendant's home. Inside the car, authorities discovered a glove stained with

Conway's blood and a Band-Aid containing defendant's DNA. Surveillance

video showed two individuals involved, and Plamondon confirmed hearing two

voices and briefly seeing one perpetrator in a dark jumpsuit. Additionally,

evidence established that defendant worked in a car garage, his phone traveled

a route consistent with the crime, and his identification was used in the sale of

the stolen jewelry.

Additionally, there was ample circumstantial evidence to support

submitting the felony murder charge to the jury. The medical examiner

testified that Conway died from a gunshot wound inflicted during the course of

the robbery, and this event was neither remote in time nor place from the

robbery itself. Evidence demonstrated that defendant knew a gun would be

present prior to entering Conway's home; Mayhue, who had a weapon, told

Goodson he had "backup" while in the car with the defendant, and Goodson

saw the weapon at that time. Testimony revealed that although defendant

briefly left the room after Conway attacked Mayhue, he returned when

Mayhue called for help and assisted in separating Conway and Mayhue just

before the gun was fired. Plamondon's testimony confirmed that one of the

A-3862-23 11 perpetrators announced he had blood on himself after Conway was assaulted,

further linking defendant to the events leading to Conway's death.

To the extent we have not considered any of defendant's remaining

claims and arguments, we conclude they do not merit further consideration in a

written opinion pursuant to Rule 2:11-3(e)(2).

Affirmed.

A-3862-23 12