Claim of Newly Discovered evidence Rejected
State v. Nirav Patel
The state Supreme Court considered the defendant Nirav Patel’s claim that newly discovered evidence entitles him to a new trial. The Court reversed the Appellate Division and remanded for sentencing. The Court held it is undisputed that the documents the defendant relied on were in his possession leading up to his trial. He also had reason to know they existed because he not only signed some of them but also emailed them to himself. And as an experienced businessperson, he understood that corporate agreements like the ones he found are commonly written down. Despite that, the defendant never searched for the documents during the four years from his indictment to trial. Under those circumstances, he cannot establish that he acted with reasonable diligence. Further, the documents raised serious concerns that a fraud on the court has been committed.
SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of
the Clerk for the convenience of the reader. It has been neither reviewed nor approved
by the Court and may not summarize all portions of the opinion.
State v. Nirav Patel (A-64-24) (090380)
Argued November 17, 2025 -- Decided May 26, 2026
CHIEF JUSTICE RABNER, writing for a unanimous Court.
In this appeal, the Court considers defendant Nirav Patel’s claim that newly
discovered evidence entitles him to a new trial.
In May 2019, defendant was indicted for theft by deception. The State asserted
defendant stole $750,000 from investors who believed they were buying a 30 percent
interest in a World of Beer (WOB) franchise planned for Hoboken even though
defendant actually owned only 5 percent of the franchise. Defendant deposited the
investors’ money into an account for his family’s business -- Bhagu, Inc. -- and a
financial crimes investigator for the State testified the money was used to pay
defendant’s personal expenses, including payments for a residence and a Porsche; to
cover debts for defendant’s family’s restaurant; and to fund checks payable directly to
defendant. A jury found defendant guilty in April 2023.
Eight days after the verdict, defendant filed a motion for a new trial based on
newly discovered evidence. At an evidentiary hearing, defendant’s sister testified that
she was “shocked” by the verdict and first began to examine boxes of documents at
their parents’ home days after the trial had ended. She found eleven pages in boxes in
the garage that she brought to defendant’s attention. Defendant then began to search
his emails using terms including “World of Beer” and “Bhagu”; within an hour, he
found allegedly relevant and authentic documents: two WOB franchise agreements
signed by defendant and Benjamin Novello, WOB’s chief development officer, that
named Bhagu, Inc. as the sole franchisee for the Hoboken WOB, and an agreement
stating that defendant had a 30 percent share in an entity called Tapmasters II. Novello
testified that he believed the Bhagu agreements were not legitimate. Defendant
maintained that the documents were authentic and exonerate him because they establish
that he had the authority to sell his shares to investors in the manner he did.
The trial court granted a new trial. The court explained in part that,
“[c]onsidering defendant had invested in approximately seventeen (17) businesses, the
evidence was discovered among presumably thousands of documents” and thus was
“not discoverable by reasonable diligence at the time of trial.” The Appellate Division
affirmed. The Court granted leave to appeal. 260 N.J. 467 (2025).
1HELD: It is undisputed that the documents defendant relies on were in his possession
leading up to his trial. He also had reason to know they existed because he not only
signed some of them but also emailed them to himself. And as an experienced
businessperson, he understood that corporate agreements like the ones he found are
commonly written down. Despite that, defendant never searched for the documents
during the four years from his indictment to trial. Under those circumstances, he
cannot establish that he acted with reasonable diligence. Further, the documents raise
serious concerns that a fraud on the court has been committed.
1. Under settled law, a defendant must establish three elements to prevail on a motion
for a new trial based on newly discovered evidence: (1) that the new evidence is
material; (2) that it was not discoverable before trial by reasonable diligence; and (3)
that it would probably change the jury’s verdict. State v. Carter, 85 N.J. 300, 314
(1981). Newly discovered evidence must be reviewed with circumspection to ensure it
is not the product of fabrication. At the same time, newly discovered evidence can
provide a safeguard for individuals who are unjustly convicted of a crime. (pp. 11-13)
2. Defendants and their attorneys cannot sit back and wait to search for evidence until
after a trial has ended. They must act with reasonable dispatch before it begins. The
obligation to search with reasonable diligence plainly applies when defendants possess
the evidence in question. It also applies when defendants are aware of critical evidence
or have reason to know it exists. Whether a defendant’s search was reasonably diligent
depends on the circumstances. It does not require defendants to undertake totally
exhaustive or superhuman efforts. But defendants who fail to search for evidence in
their possession, or evidence they know or reasonably should have known about, will
have a difficult time satisfying the second prong of the Carter test. The Court explains
why, under the circumstances of this case, it was an abuse of discretion to find the
evidence was not discoverable through reasonable diligence before trial. (pp. 13-20)
3. The Court addresses the serious allegations of fraud related to the two Bhagu
franchise agreements defendant submitted after trial. A close examination of the
documents tends to support the State’s claim. If a motion for post-conviction relief is
filed in this case, the parties and the court should examine with care what may well be
a fraud on the court. The Court does not suggest that defense counsel engaged in
improper behavior. (pp. 21-23)
REVERSED. REMANDED for sentencing.
JUSTICES PATTERSON, PIERRE-LOUIS, WAINER APTER, FASCIALE,
NORIEGA, and HOFFMAN join in CHIEF JUSTICE RABNER’s opinion.
2SUPREME COURT OF NEW JERSEY
A-64 September Term 2024
090380
State of New Jersey,
Plaintiff-Appellant,
v.
Nirav Patel,
Defendant-Respondent.
On appeal from the Superior Court,
Appellate Division.
Argued
November 17, 2025
Decided
May 26, 2026
Liza B. Fleming, Deputy Attorney General, argued the
cause for appellant (Matthew J. Platkin, Attorney
General, attorney; Jeremy M. Feigenbaum, Solicitor
General, Michael L. Zuckerman, Deputy Solicitor
General, Tim Sheehan, Assistant Attorney General, and
Liza B. Fleming, Regina M. Oberholzer, and Nathaniel I.
Levy, Deputy Attorneys General, of counsel and on the
briefs).
David J. Altieri argued the cause for respondent
(Galantucci & Patuto, and Cillick and Smith, attorneys;
David J. Altieri and Edward W. Cillick, on the briefs).
Ezra D. Rosenberg argued the cause for American Civil
Liberties Union of New Jersey (American Civil Liberties
Union of New Jersey Foundation, attorneys; Ezra D.
Rosenberg and Jeanne LoCicero, on the brief).
1CHIEF JUSTICE RABNER delivered the opinion of the Court.
Defendant Nirav Patel claims that newly discovered evidence entitles
him to a new trial.
In May 2019, defendant was indicted for theft by deception. The
charges related to his ownership interest in a restaurant franchise planned for
Hoboken. The State asserted defendant stole $750,000 from investors who
believed they were buying a 30 percent interest when defendant actually
owned only 5 percent. Defendant’s trial began nearly four years later, and a
jury found him guilty in April 2023.
Eight days after the verdict, defendant filed a motion for a new trial
based on newly discovered evidence. To prevail on such a claim, a defendant
must demonstrate, among other things, that the new evidence was discovered
after trial and was “not discoverable by reasonable diligence beforehand.”
State v. Carter, 85 N.J. 300, 314 (1981).
The trial court conducted an evidentiary hearing at which defendant and
his sister testified. She stated that she was “shocked” by the verdict and first
began to examine boxes of documents at their parents’ home days after the trial
had ended. She brought certain materials to defendant’s attention and, within
2an hour of searching his emails, defendant found allegedly relevant and
authentic documents. Defendant claims the documents exonerate him.
After the hearing, the trial court granted defendant’s motion, and the
Appellate Division affirmed the court’s order. Yet it was undisputed that the
documents in question were in defendant’s possession leading up to his trial.
He also had reason to know they existed because he not only signed some of
them but also emailed them to himself. And as an experienced businessperson,
he understood that corporate agreements like the ones he found are commonly
written down. Despite that, defendant never searched for the documents
during the four years from his indictment to trial. Under those circumstances,
he cannot establish that he acted with reasonable diligence.
We also note that the documents defendant presented after the verdict
raise serious concerns that a fraud on the court has been committed.
We therefore reverse the judgment of the Appellate Division and remand
for sentencing.
I.
We draw the following facts from defendant’s trial and a post-trial
hearing.
3A.
On May 8, 2019, a State grand jury returned an indictment against
defendant that charged him with theft by deception in the second degree. The
indictment alleged that he “obtain[ed] $750,000 from one or more investors by
creating or reinforcing the false impression that [the money] would be used as
an investment for a bar/restaurant franchise.”
Defendant’s trial began on March 28, 2023 and ended on April 20, 2023.
Certain evidence related to World of Beer Franchising, Inc. (WOB), a
corporation that licensed franchises for restaurants. In 2012, defendant, along
with Will Mingo and Jerrid Douglas, entered into an area development
agreement with WOB that granted them the rights to open twelve retail alcohol
franchises in New Jersey, Pennsylvania, and later New York. According to
Mingo, the partnership had a fourth partner at one point and operated under the
name “Tapmasters.
”
Each franchise location had its own franchise agreement. An operating
agreement for each location set forth each partner’s ownership percentage.
Overall, defendant was involved in approximately thirty businesses.
Among other entities, defendant’s family business, Bhagu, Inc., had operated a
restaurant in Hoboken known as The Melting Pot, which defendant’s sister,
Sonal Patel, had purchased. Defendant and their father, Bhagvati Patel, were
4signatories to the restaurant’s franchise agreement, and defendant was
authorized to sign checks on its accounts. (We refer to defendant’s family
members by their first names to avoid confusion.)
The plan was to convert The Melting Pot into a WOB franchise. To
accomplish that, defendant negotiated a new lease for the new entity -- WOB
Hoboken. Soon after, on May 2, 2014, defendant and Mingo entered into the
“Operating Agreement of Tapmasters Hoboken LLC” for the new WOB
Hoboken franchise. The signed agreement listed the two partners and their
respective ownership interests: Mingo had a 95 percent interest and defendant
a 5 percent interest. A principal owner’s guaranty dated March 25, 2015,
reflected the same percentages. A principal owner’s statement on the same
date did so as well.
Defendant testified at trial that there was a 40/30/30 split between
Mingo, himself, and Douglas, the original founders, based on the 2012 area
development agreement. Without referring to any documents, defendant
testified that he and Mingo had a 50-50 partnership split of WOB Hoboken
once Douglas withdrew. Defendant did not recall signing any documents that
reflected he owned only 5 percent.
The Tapmasters Hoboken operating agreement for WOB Hoboken
provided that new investors could join the company if a majority of the voting
5interests approved. Capital contributions from new members were to be used
only for the company’s business purposes.
The State presented evidence at trial that from March to May 2014,
defendant raised $750,000 from a group of six investors. They formed an
entity, HOBWOB, to invest the funds in exchange for a share of the Hoboken
franchise.
Defendant deposited the investors’ money into an account for his
family’s business, Bhagu, Inc. A financial crimes investigator for the State
reviewed the account’s records. He testified the money was used to pay
defendant’s personal expenses, including mortgage and car payments for a
residence and a Porsche; to cover debts for The Melting Pot; and to fund
checks payable directly to defendant. According to the investigator, none of
the $750,000 investment was transferred to Mingo or Tapmasters Hoboken
LLC, and none of it was used for the benefit of the Hoboken WOB franchise.
In August 2014, one of the investors asked Mingo about the status of
HOBWOB’s investment. Mingo testified he was “stunned” because he was
unaware of the investment and had not approved it. The next day, Mingo
notified defendant in writing that he was removed as a member of Tapmasters
Hoboken LLC.
6On April 20, 2023, a jury found defendant Nirav Patel guilty of the
single count in the indictment. His sentencing was scheduled for June 2023.
B.
On April 28, 2023, eight days after the verdict, defendant filed a motion
for a new trial and a judgment of acquittal. The trial court later conducted an
evidentiary hearing at which defendant and his sister Lina testified.
Lina testified that she and her family were “shocked” by the verdict and
searched through boxes of documents at her parents’ home in the days
afterward. Lina lived there at the time. Defendant lived there full-time since
2019 as well. The documents related to various business ventures in which her
family members, including her brother, were involved.
Lina testified that “[a]fter days of searching,” she found eleven pages in
boxes in the garage. The pages were part of franchise agreements that named
Bhagu, Inc., the family’s company, as the sole franchisee of the WOB project
in Hoboken. According to Lina, the pages were not “all together” and had
“scrap paper nonsense” on the back. Lina stated she was able to identify them
because they said “Bhagu and World of Beer.
”
Lina stated that she showed the pages to defendant, who “thought about
it” and then began to search his email accounts. He inputted different search
terms, including “World of Beer,” “Bhagu,” and “Bhagu, Inc. franchise
7agreement,” and “a whole bunch of emails came up.” Altogether, Lina
estimated that they searched defendant’s emails for about one hour and found
full versions of the excerpted documents she had located. Defendant and Lina
both testified that the documents were authentic.
Defendant submitted the complete documents in support of his request
for a new trial. The first, attached to an email, was a WOB Franchising
Agreement dated January 22, 2014, signed by defendant and Benjamin
Novello, WOB’s chief development officer. The agreement named Bhagu,
Inc. as the sole franchisee and stated that Bhagu had paid WOB $30,000
toward a $45,000 franchise fee for the Hoboken franchise.
Defendant and his sister found and submitted a second WOB
Franchising Agreement dated May 7, 2015. It also named Bhagu, Inc. as the
sole franchisee for the Hoboken franchise, and defendant signed the document
on behalf of Bhagu. At the hearing, defendant testified he could not recall
where the document came from.
Defendant also submitted a third document, a principal owner’s
guaranty, that stated he had a 30 percent interest in an entity named
Tapmasters II. Mingo had a 40 percent interest and Douglas a 30 percent
interest in the entity. The document does not explain whether or how it relates
to the Hoboken franchise or the operating agreement for Tapmasters Hoboken.
8The document is undated; defendant testified it was attached to an April 8,
2014 email.
Novello, the WOB development officer, testified that he believed the
Bhagu agreements were not legitimate. He explained that WOB kept copies of
all executed franchise agreements, that he could not recall signing an
agreement for Bhagu, and that a search of WOB’s records did not uncover the
agreements defendant produced in support of his motion. Novello also
testified he would not have granted both Bhagu and Tapmasters an exclusive
franchise agreement for the same location. In a certification, Novello stated he
believed the Tapmasters II Guaranty was legitimate.
Defendant maintained that the documents were authentic and established
that he had the authority to sell his shares to investors in the manner he did.
C.
The trial court granted defendant’s motion for a new trial. To assess the
new evidence presented at the hearing, the court applied the three-part standard
set forth in Carter. The standard requires defendants to demonstrate that new
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.
9[85 N.J. at 314.]
Defendants must satisfy all three elements to be granted a new trial. Ibid.
The trial court initially dispensed with the second prong: “Considering
defendant had invested in approximately seventeen (17) businesses, the
evidence was discovered among presumably thousands of documents.”1
“[G]iven the circumstances,” the court found, the documents “were not
discoverable by reasonable diligence at the time of trial.”
The court also concluded that the documents were material and would
probably change the jury’s verdict for the reasons defendant advanced: they
showed he was “a 30% owner and not a 5% owner” and “had the authority to
sell shares.”
Notwithstanding the new evidence, the trial court denied defendant’s
motion for a judgment of acquittal. The court pointed to conflicting
documents and testimony the State presented at trial and concluded that a
reasonable jury could have found that defendant “purposely obtained the
investor’s property by deception.” That issue is not part of this appeal.
The Appellate Division affirmed. With regard to the requirement that a
defendant must act with reasonable diligence, the court noted that a deferential
1 Defendant’s sister, Lina, testified defendant was involved in “30-ish”
businesses. The trial court did not identify a source for the lower number.
10standard of review applied to the trial court’s factfinding and found “no basis
to disturb” its conclusion. The appellate court also agreed that the new
evidence was material and would probably change the outcome given the
State’s theory of the case.
D.
We granted the State’s motion for leave to appeal. 260 N.J. 467 (2025).
We also granted the American Civil Liberties Union of New Jersey (ACLU)
leave to appear as a friend of the court.
II.
The State maintains the materials defendant submitted after trial were
discoverable with reasonable diligence. The State specifically notes that
defendant possessed the documents, which he had signed and emailed to
himself, for the four years between his indictment and trial. In any event, the
State submits the documents would not have likely changed the jury’s verdict
because the evidence was neither credible nor sufficiently probative.
Defendant counters that the documents were not “easily discoverable”
and that locating them was like finding “a needle in a haystack.” He also
maintains the documents show he had the authority to raise funds for the
Hoboken WOB project. Defendant disputes the State’s claim that “these
documents are neither credible nor probative.”
11The ACLU proposes a new standard to assess the significance of newly
discovered evidence: when a “defendant had access to evidence at the time of
trial but failed to produce it -- not for any strategic or tactical reasons but
because of inadvertence on defendant’s or defense counsel’s part -- a new trial
should ordinarily be ordered if the defendant meets the other prongs of the
Carter test.”
III.
A.
Motions for a new trial based on newly discovered evidence are
committed to the “sound discretion” of the trial court and will not be disturbed
absent a clear abuse of discretion. State v. Smith, 29 N.J. 561, 573 (1959).
Under settled law, as noted earlier, defendant must establish three
elements to prevail on his motion: (1) that the new evidence is material; (2)
that it was not discoverable before trial by reasonable diligence; and (3) that it
would probably change the jury’s verdict. Carter, 85 N.J. at 314; State v.
Ways, 180 N.J. 171, 187 (2004).
We ordinarily give great weight to a trial court’s determination because
it “sat on the original trial” and is “in a peculiarly advantageous position to
evaluate the showing made for a new trial.” Smith, 29 N.J. at 573. That
deference logically applies to the test’s first and third prongs, which call for a
12qualitative, comparative assessment of the evidence presented to the jury. The
second prong, however, does not turn on the evidence’s probative value. It
focuses instead on the reasonableness of a defendant’s efforts to locate the
evidence in a timely manner. See Lopez-Martinez v. U.S. Att’y Gen., 149
F.4th 1202, 1212 n.11 (11th Cir. 2025) (“‘[R]easonableness’ isn’t inevitably a
purely factual determination.
”).
In general, “[n]ewly discovered evidence must be reviewed with a
certain degree of circumspection to ensure that it is not the product of
fabrication.” Ways, 180 N.J. at 187-88; State v. Buonadonna, 122 N.J. 22, 50-
51 (1991) (declining to conclude, based on “sketchy evidence,” that a new trial
was warranted). At the same time, newly discovered evidence can “provide a
safeguard” for individuals “who are unjustly convicted of a crime.” Ways, 180
N.J. at 188. “We would not require a person who is probably innocent to
languish in prison because the exculpatory evidence was discoverable and
overlooked by a less than reasonably diligent attorney.” Id. at 192.
B.
The second prong of the Carter test recognizes another important
principle in a system of justice: “that judgments must be accorded a degree of
finality.” Ibid. Defendants and their attorneys cannot sit back and wait to
13search for evidence until after a trial has ended. They must “act with
reasonable dispatch” before it begins. Ibid.
That obligation plainly applies when defendants possess the evidence in
question at the time of trial. See, e.g., State v. Johnson, 34 N.J. 212, 222-23
(1961) (allegations of coerced confessions, if true, would have been known to
defendants at the time of trial and were “not newly discovered at all”); State v.
Hall, 183 N.J. Super. 224, 233 (App. Div. 1982) (alleged new evidence in
possession of someone who testified at trial was not “newly discovered”);
United States v. Cimera, 459 F.3d 452, 460 n.10 (3d Cir. 2006) (failure to
realize the relevance of evidence in the defendant’s possession did not render
the evidence newly discovered; citing several Circuits in agreement); United
States v. Garcia-Alvarez, 541 F.3d 8, 18 (1st Cir. 2008) (cell site data in the
defendant’s possession, from which his general location could have been
derived, was “not new” despite counsel’s failure to realize its significance);
United States v. Rodriguez-Marrero, 390 F.3d 1, 29 (1st Cir. 2004)
(information in a police report in the defendant’s possession was not newly
discovered); United States v. Castillo, 171 F.3d 1163, 1167 (8th Cir. 1999)
(failure to listen to both sides of an audiotape did not render the evidence
newly discovered); State v. Perez, 457 N.W.2d 448, 457 (Neb. 1990) (tape
14recording in the defendant’s possession that he first listened to after trial did
not amount to newly discovered evidence).
The obligation to search with reasonable diligence also applies when
defendants are aware of critical evidence or have reason to know it exists.
State v. Casey, 157 N.J. Super. 311, 317 (App. Div. 1978) (affidavit submitted
after trial was not newly discovered evidence when the defendant knew the
affiant “possessed knowledge critical to the case” yet “made no effort
whatever to secure [the person’s] attendance as a witness” at trial); State v.
Uranga, 950 N.W.2d 239, 242-44 (Iowa 2020) (letter that the defendant had
received before trial, and was aware of, was not newly discovered evidence);
Muse v. State, 748 S.E.2d 136, 141 (Ga. Ct. App. 2013) (website post that the
defendant had responded to and “was necessarily aware of” was not newly
discovered evidence).
Forgetting about evidence likewise does not render the evidence newly
discovered. State v. Daymus, 380 P.2d 996, 997 (Ariz. 1963) (“Information
within the personal knowledge of defendant does not become newly
discovered evidence by reason of later recollection.”); State v. Hirsch, 511
N.W.2d 69, 82 (Neb. 1994) (“[F]orgetfulness is inconsistent with the diligence
required in presenting the evidence during the trial[] and . . . does not warrant
a new trial on the basis of newly discovered evidence.”).
15Unusual circumstances that impede the discovery of evidence may lead
to a different conclusion. In Commonwealth v. Boyle, for example, the
defendant had been convicted of willfully failing to file sales tax returns. 625
A.2d 616, 618 (Pa. 1993). As part of his defense, defendant Boyle claimed he
would submit tax returns and documents to a revenue auditor for several
months at a time, and the auditor would give him “an extension of time to
prepare additional” returns. Id. at 621.
Boyle received a final audit report, which did not mention that practice.
Id. at 622. After trial, he found a single page of handwritten notes from the
auditor in one of several boxes returned to him after the audit. The notes
confirmed the arrangement. Id. at 621-22. In granting a new trial, the
Supreme Court of Pennsylvania observed that documents “that are placed
unwittingly into a defendant’s possession and are not discovered prior to trial
are after-discovered evidence.” Id. at 622.
State v. Nash, 212 N.J. 518 (2013), presented a different type of
impediment to the discovery of evidence before trial. The case involved a
special-education student who testified the defendant had sexually assaulted
him on several occasions. Id. at 529. Defendant Nash, a school librarian,
denied the charge. He also insisted in his testimony “that he could not have
committed the crime because an aide escorted [the student] around the school
16at all times.” Id. at 526. In rebuttal, the principal testified the student never
had a “personal aide.” Id. at 530.
After trial, “it became clear that Nash was not mistaken about the aide.”
Id. at 551. The principal had assigned a “classroom aide” who was not
reclassified as a “personal aide” but did accompany the student. Ibid. The
Court also found that trial counsel’s efforts to discover the aide “were
probably thwarted by” a gag order the principal had imposed, “which made
people” like the aide and the special-education classroom teacher “wary of
cooperating with the defense.” Id. at 536, 552. The Court concluded that
evidence of the aide was not discoverable through reasonable diligence before
trial and granted Nash a new trial. Id. at 552-54. See also State v. Szemple,
247 N.J. 82, 100 (2021) (referring generally to “external obstacle[s]” that
could prevent the discovery of evidence with reasonable diligence).
Whether a defendant’s search was reasonably diligent depends on the
circumstances. It does not require defendants to undertake “totally exhaustive
or superhuman effort[s].” State v. Behn, 375 N.J. Super. 409, 428 (App. Div.
2005). But defendants who fail to search for evidence in their possession, or
evidence they know or reasonably should have known about, will have a
difficult time shouldering their burden under the second prong of the Carter
test.
17The late discovery of evidence can lead to motions for post-conviction
relief as well as motions for a new trial. Ways, 180 N.J. at 192-93. Delays in
both settings may render the evidence “highly suspect.” Buonadonna, 122 N.J.
at 50.
IV.
Under the circumstances, we do not agree that the evidence in question
was “not discoverable by reasonable diligence” before trial. Carter, 85 N.J. at
314. For the purpose of this section, we assume the evidence is genuine.
Based on the record, defendant could have discovered it before trial with
reasonable diligence.
Certain undisputed facts in the record undermine defendant’s claim that
he satisfied his burden to establish the second prong:
• The documents were in defendant’s possession before trial. They
were located in his parents’ home, where he lived full-time as of
2019. He also had access to electronic versions of the documents in
his own email accounts.
• Defendant knew the documents in question existed. He not only
testified that he signed some of the documents he now relies on, but
he also emailed them to his own email account.
18• Defendant had reason to know the documents existed. He was an
experienced businessperson who had been involved in approximately
thirty business ventures. He knew from experience that franchising
agreements, development agreements, operating agreements,
partnership agreements, ownership interests, guaranties, and similar
materials -- many of which he signed -- are commonly reduced to
writing.
• Defendant did not search for the documents before trial. Although
defendant and his sister testified they had access to a vast amount of
documents, they did not search through them until after the jury’s
verdict. See Ways, 180 N.J. at 192 (noting that prong two of the
Carter test “encourage[s] defendants and attorneys to act with
reasonable dispatch in searching for evidence before the start of the
trial”).
• Despite the large quantity of documents, Lina testified she was able
to find relevant materials in a matter of days. For his part, defendant
then used basic search terms -- “World of Beer,” “Bhagu,” and
“Bhagu, Inc. franchise agreement” -- to search his emails, and he was
able to find the documents in question in an hour. He could have
easily done so before trial.
19Defendant offered two reasons for waiting to search his emails until after
trial. First, he believed he had a strong trial defense. But a faulty trial strategy
not to pursue all relevant evidence does not provide grounds for a new trial
based on newly discovered evidence. Garcia-Alvarez, 541 F.3d at 18; see
Ways, 180 N.J. at 192 (“A defendant is not entitled to benefit from a strategic
decision to withhold evidence.”). Such an approach could encourage
gamesmanship and undermine finality in a jury’s verdict.
Second, defendant believed he no longer had access to the email account
where he later found the documents. He testified at the post-trial hearing that
he “had multiple email addresses -- email accounts that are no longer -- I don’t
have access to them anymore.” Yet he did not check whether that was true.
That type of behavior similarly falls short of the diligence expected of a
defendant.
In sum, defendant did not use reasonable diligence to search for the
documents prior to trial. Whatever the reason, he did not search for them at
all. It was therefore an abuse of discretion to find the evidence was not
discoverable through reasonable diligence before trial.
Defendants must satisfy all three prongs of the Carter test to obtain a
new trial. Ways, 180 N.J. at 187; Carter, 85 N.J. at 314. Because defendant
failed to establish the second prong, we need not evaluate the other two.
20We also decline to address the ACLU’s proposed new standard to assess
the significance of newly discovered evidence. We generally do “not consider
arguments that have not been asserted by a party, and are raised for the first
time by an amicus curiae.” State v. J.R., 227 N.J. 393, 421 (2017).
V.
Finally, we address serious allegations of fraud related to defendant’s
motion. The State contends that two documents defendant submitted after trial
-- the two Bhagu franchise agreements -- are “highly questionable.” A close
examination of the documents tends to support that concern.
To repeat, the first document, dated January 22, 2014, named Bhagu,
Inc. as the sole franchisee for the Hoboken franchise and stated that Bhagu had
paid $30,000 of the $45,000 franchise fee to WOB. The second document,
dated May 7, 2015, also named Bhagu as the sole franchisee for the Hoboken
location. The State challenges the authenticity of both items and contends the
first one is identical to an unrelated franchise agreement with Tapmasters
Albany, also dated January 22, 2014.
Even a layperson can notice certain common features among the
documents. Among other things, they contain multiple signature blocks with
what appear to be identical signatures as well as identical handwritten titles
and dates.
21In various signature blocks, for example, the handwritten phrase
“Managing Partner” appears above the line for the date, “1/22/14.” Looking
across the documents in the State’s appendices, in some places the letter “t” in
“Partner” has a loop at the bottom that connects the letter’s vertical and
horizontal lines; in other places, there is no connecting loop. In some places,
the top line of the first “r” in “partner” has an upward slant; in others, the slant
is horizontal. In some, the underscored numbers in the date “1/22/14” extend
below the printed line in the same way; in others, they do not.
Despite those variations across the documents, the same features appear
to match up identically in the signature blocks for the January 22, 2014
WOB/Bhagu Hoboken franchise agreement and the unrelated
WOB/Tapmasters Albany franchise agreement bearing the same date. And
near the signature blocks on an addendum to both documents, in the same
place, is what appears to be an identical, stray, handwritten mark. Yet one
document is signed by Will Mingo for Tapmasters Albany, and the other bears
defendant’s signature for Bhagu.
The similarities lend support to the State’s claim that the January 22,
2014 Bhagu agreement is not credible and was copied from another document.
The State raises other questions about the agreement as well. Among other
arguments, it notes that defendant testified he located the 2014 agreement in an
22email he sent to himself in May 2015. By that time, Mingo had accused
defendant of taking $750,000 from the outside investors, which the State
submits provided a motive for defendant to fabricate the document.
The trial court made note of the State’s allegations but pointed to the
third of the new documents presented -- the Tapmasters II guaranty -- which
states that defendant owned a 30 percent interest in the named entity. That
document’s authenticity was not challenged. But the undated document, as
noted earlier, does not explain whether or how it relates to the Hoboken
franchise or the operating agreement for Tapmasters Hoboken. The parties
have different views on the meaning of the document.
We need not reach other arguments the State presents about the
authenticity of the documents. If a motion for post-conviction relief is filed in
this case, the parties and the court should examine with care what may well be
a fraud on the court. We do not suggest that defense counsel engaged in
improper behavior.
VI.
For the reasons stated above, we reverse the judgment of the Appellate
Division. The matter is remanded to the trial court for sentencing.
23JUSTICES PATTERSON, PIERRE-LOUIS, WAINER APTER,
FASCIALE, NORIEGA, and HOFFMAN join in CHIEF JUSTICE RABNER’s
opinion.
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