NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Following two jury trials, defendant Michael L. Martin was convicted of second-degree burglary, N.J.S.A. 2C:18-2; two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3; first-degree robbery, N.J.S.A. 2C:15-1; two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d, 5(e); two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, 5(d); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and second-degree sexual assault, N.J.S.A. 2C:14-2c(1). The trial judge sentenced defendant to an aggregate term of twenty-six years imprisonment with eleven years of parole ineligibility.1
The record reveals the following facts. On March 25, 1993, an Essex County Grand Jury issued an indictment charging defendant with various crimes related to two separate incidents, one involving S.T. and the other H.F. With regard to the first incident, the indictment charged defendant with second-degree burglary, N.J.S.A. 2C:18-2 (count one); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (counts two and three); third-degree terroristic threats, N.J.S.A. 2C:12-3 (count four); first-degree robbery, N.J.S.A. 2C:15-1 (count five); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count six); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count seven); and third-degree endangering the welfare of a child; N.J.S.A. 2C:24-4a (count eight).
As to the second incident, the indictment charged defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4) (count nine); third-degree terroristic threats, N.J.S.A. 2C:12-3 (count ten); first-degree robbery, N.J.S.A. 2C:15-1 (count eleven); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count twelve); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count thirteen).
Prior to trial, defendant filed a motion to sever counts one through eight, which related to S.T., from counts nine through thirteen, which pertained to H.F. On July 22, 1993, the trial court granted defendant's motion. The first trial, on counts nine through thirteen, occurred between November 4, 1993 and November 10, 1993. The jury found defendant guilty on counts ten, twelve, and thirteen as well as a lesser-included offense of second-degree sexual assault under count nine. Defendant's second trial took place between August 15, 1994 and August 17, 1994.2 The jury found defendant guilty on all counts. Defendant was sentenced to eighteen years with eight years of parole ineligibility with respect to the S.T. conviction, which was to run consecutive to an eight year term of imprisonment with three years of parole ineligibility for the H.F. conviction. The aggregate sentence was twenty-six years with eleven years of parole ineligibility.
Defendant appealed his convictions, which this court affirmed on June 17, 1998. The Supreme Court denied certification. State v. Martin, 156 N.J. 426 (1998). Thereafter, defendant filed a petition for post-conviction relief (PCR), which was denied. This court affirmed, and the Supreme Court denied certification. State v. Martin, 177 N.J. 492 (2003). On September 9, 2003, defendant filed a petition for a federal writ of habeas corpus, which was denied. The Third Circuit denied defendant's application for a certificate of appealability, and the United States Supreme Court denied certiorari.
Defendant was released from prison on October 22, 2009. Thereafter, defendant filed a motion on August 23, 2013, seeking the grand jury's voting record.3 Judge Alfonse J. Cifelli denied the motion on November 4, 2013. The judge determined that defendant's motion was "meritless[,]" noting that defendant stated he wanted the motion for the "purpose of justice" and to make certain that the indictment accurately reflected the actual grand jury vote. Judge Cifelli reasoned that defendant failed to produce any evidence "that would suggest prosecutorial misconduct or malicious prosecution" and that consequently, there were no "grounds to unseal the secret grand jury vote" particularly in light of the fact that eighteen years had passed since defendant's conviction and sentence. Defendant appealed.
While the appeal was pending, on February 10, 2014, defendant filed a motion to dismiss certain counts of the indictment and to reverse his conviction regarding H.F.4 According to the judge, defendant claimed that there were only seven counts on the original indictment rather than thirteen counts for which he was ultimately charged, and that the indictment was fraudulently obtained by the prosecution. Judge Cifelli denied defendant's motion, noting that he was "rais[ing] the same arguments that were previously raised in earlier motions to obtain the `grand jury vote.'" Judge Cifelli concluded that defendant's motion "lacks merit and [that] no evidence [was] presented to dismiss the indictment[.]" Defendant again appealed.
Before us, defendant argues that the prosecutor engaged in misconduct as no indictment was issued regarding H.F. and consequently, the trial court lacked jurisdiction in that case. Further, defendant contends that the trial court erred in refusing to disclose the grand jury vote. After considering defendant's contention in light of the record and the applicable legal standards, we affirm.
In reference to the motion to disclose the grand jury vote, we agree that defendant has failed to set forth any facts or evidence that would overcome the secrecy of the grand jury. It is well-established that grand jury proceedings are conducted in secret. See R. 3:6-7; see also Barlyn v. Dow, 436 N.J.Super. 161, 170 (App. Div. 2014). "`[N]otwithstanding the long-established policy of grand-jury secrecy, disclosure is permitted in certain circumstances.'" Barlyn, supra, 436 N.J. Super. at 171 (quoting In re Application for Disclosure of Grand Jury Testimony, 124 N.J. 443, 451 (1991)). For example, the Rules make clear that defendants have the right to request copies of the grand jury transcript. See R. 3:6-6(b). For materials other than the grand jury transcript, defendants must demonstrate "`a strong showing of particularized need that outweighs the interest in grand jury secrecy.'" Barlyn, supra, 436 N.J. Super. at 172 (quoting State v. Doliner, 96 N.J. 236, 246 (1984)); see also United States v. Blackwell, 954 F.Supp. 944, 964-66 (D.N.J. 1997) (applying the test to the defendants' motion for disclosure of the grand jury's voting record), aff'd, 168 F.3d 479 (3d Cir. 1998).
"Particularized need . . . requires that one seeking release of grand jury material demonstrate more than the probable relevance of the material to the litigation." Barlyn, supra, 436 N.J. Super. at 177. That is, the need must be such that without the materials, the defendant "would suffer prejudice or `an injustice would be done[.]'" Ibid. (quoting Doe v. Klein, 143 N.J.Super. 134, 142 (App. Div. 1976)). A mere showing upon "`information and belief'" of an irregularity by the grand jury is insufficient. State v. Ciba-Geigy Corp., 222 N.J.Super. 343, 352 (App. Div.) (quoting State v. Graziani, 60 N.J.Super. 1, 23 (App. Div. 1959), aff'd o.b., 31 N.J. 538, cert. denied, 363 U.S. 830, 80 S.Ct. 1601, 4 L. Ed. 2d 1524 (1960)), certif. granted 111 N.J. 574 (1988), appeal dismissed, A-65/65-88 (April 6, 1989). Defendant's claims fail to meet this test as any alleged irregularity by the grand jury is purely speculative, and he has produced no evidence in support of his claims. Consequently, we reject defendant's attempts to pierce the secrecy of the grand jury proceedings.
Concerning defendant's appeal of his motion to dismiss part of the indictment and reverse his conviction, we first point out that with few exceptions, after an appeal a petition for post-conviction release (PCR) "is the exclusive means of challenging a judgment rendered upon conviction of a crime." R. 3:22-3. Thus, we consider defendant's self-styled motion to be bound by the post-conviction relief requirements in Rule 3:22. PCR constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992); see also State v. Nash, 212 N.J. 518, 540 (2013) (noting that PCR represents a defendant's "last chance to challenge the fairness and reliability of a criminal verdict[.]") (internal quotation marks and citations omitted).
To protect against courts addressing endless issues in a piecemeal fashion, certain procedural rules govern PCR petition filings. For example, Rule 3:22-12(a)(1) imposes a five-year limitation on filing a petition after the entry of the judgment sought to be attacked. A second or subsequent PCR petition may only be filed within one year of the recognition of a new constitutional right, discovery of a new factual predicate, or denial of the last PCR to address ineffective assistance of PCR counsel. R. 3:22-12(a)(2).
Although the time limitations are not absolute and may be waived to prevent a fundamental injustice, the rules must be viewed in light of their dual key purposes: to ensure that the passage of time does not prejudice the State's retrial of a defendant and to respect the need for achieving finality. State v. DiFrisco, 187 N.J. 156, 166-67 (2006). Moreover, a PCR petition is not a substitute for an appeal of a conviction, Rule 3:22-3, and any available ground for relief not asserted in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4, or was asserted earlier, Rule 3:22-5. See also Nash, supra, 212 N.J. at 546.
We are satisfied that defendant's motion, filed almost twenty years after the judgment of conviction and more than ten years after the denial of his last PCR petition without any showing of excusable neglect or manifest injustice, is clearly time-barred. R. 3:22-12. Defendant has articulated no basis to relax the clear restrictions under this rule. We also agree that the present claims are barred by Rule 3:22-4 as they could have been raised either on direct appeal or in defendant's previous PCR petitions.
Furthermore, defendant makes wholly unsubstantiated claims that the grand jury did not vote on several counts of the indictment and that the prosecutor engaged in fraud in presenting a purposely improper indictment. We find defendant's claims to be unsupported by any evidence whatsoever and are without sufficient merit for further discussion. R. 2:11-3(e)(2).
Affirmed.
