NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2006-14T1
STATE OF NEW JERSEY APPROVED FOR PUBLICATION Plaintiff-Respondent, July 19, 2016 v. APPELLATE DIVISION RODNEY ARMOUR,
Defendant-Appellant. _____________________________________
Argued April 20, 2016 – Decided July 19, 2016
Before Judges Alvarez, Ostrer and Manahan.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-12-2454.
Edward C. Bertucio argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Bertucio, of counsel and on the brief; Elyse S. Schindel, on the brief).
Monica Lucinda do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief).
The opinion of the Court was delivered by
MANAHAN, J.A.D.
In this case we address the standard governing a post-
conviction request to retest fingerprint evidence based on advances in fingerprint science and expansions of the New Jersey
State Police Automated Fingerprint Identification System (AFIS)
and Integrated Automated Fingerprint Identification System
(IAFIS) databases. In particular, advances in fingerprint
science and expansions to include more offenders in the
databases increase the possibility that a fingerprint may match
a hitherto unidentified third party.
Defendant Rodney Armour appeals from an order denying a
motion for post-conviction discovery sought in conjunction with
a motion for a new trial. He argues that the motion judge erred
by rejecting his request for retesting of a latent fingerprint
taken from the outside of a motor vehicle in which a robbery
occurred, and for which defendant was convicted after a jury
trial.1
We conclude that the statutory standard governing retesting
of DNA provides a suitable framework for assessing a request for
retesting fingerprints. Applying that framework, the critical
factor in this case is whether there would be a "reasonable
probability" that defendant would be entitled to a new trial if
the fingerprint retesting were favorable, pursuant to N.J.S.A.
2A:84A-32a(d)(5). After reviewing the record evidence, we
1 Defendant also argues that he received ineffective assistance of post-conviction relief (PCR) counsel.
2 A-2006-14T1 further conclude that even if the latent fingerprint was tested
anew and a third party was identified, defendant would not be
entitled to a new trial in light of the substantial evidence of
guilt and the lack of a proffered alibi. Consequently, we
affirm the motion judge's denial of defendant's motion.
I.
Defendant was found guilty by a jury of second-degree
robbery, N.J.S.A. 2C:15-1(a). We adopt the essential facts from
our decision affirming defendant's conviction:
The robbery was committed around 9 p.m. on October 15, 2002, in a shopping center in Neptune. The victim drove her car to an ATM in the shopping center to transfer funds into her checking account. As she was beginning this transaction, a man she identified at trial as defendant got into her car and demanded money. When she withdrew only $5 from her wallet, he said "[N]o, that's not enough. Give me all of it." The victim then gave defendant a $20 bill, but he said that if she "didn't give him all [of her] money he was going to shoot [her] in the face." The victim then asked defendant to allow her to complete the deposit into her checking account, and he agreed. After the victim completed this transaction, defendant directed her to drive toward an Eckerd drug store at the south end of the mall. When the victim stopped at the drug store, defendant told her to give him her wallet. The victim responded that she did not know the location of her wallet, which she had dropped during the course of the robbery. When defendant was unable to find the wallet, he kicked the victim in the thigh and punched her in the jaw. After assaulting the victim, defendant got out of
3 A-2006-14T1 the car and ran behind the Eckerd towards a fence located behind the building.
In addition to the victim's in-court identification of defendant as the robber, the State presented the testimony of an employee of the Eckerd drug store, Beverly Wilson, who walked up to the victim's car while the robbery was in progress and saw the victim struggling with defendant. Wilson, who had seen defendant in the drug store shortly before the robbery, and the victim both gave the police descriptions of the perpetrator shortly after the crime. The State also produced a videotape from an Eckerd surveillance camera which showed that defendant had been in the drug store around the time of the robbery.
The night following the robbery, Wilson, who was working at a McDonald's that night, saw defendant standing in line inside the restaurant. She called the police, who responded to the McDonald's while defendant was still there. Wilson then made a positive identification of defendant as the robber, and the police placed him under arrest.
Defendant did not testify at trial. In his defense, defendant relied primarily on evidence of inconsistencies between the descriptions of the perpetrator's clothing that Wilson and the victim gave the police after the robbery and the clothes that defendant was shown wearing by the Eckerd surveillance camera and at the time of his arrest.
[State v. Armour, No. A-5690-03 (App. Div. Oct. 4, 2005) (slip op. at 1-3) (Armour I)].
We recite additional facts adduced at the trial relevant to
our analysis. The victim was employed as a nurse for
4 A-2006-14T1 approximately twenty-six years. She gave a very specific
description of defendant, including minute details of his
appearance and mannerisms. Her encounter with defendant lasted
for approximately ten minutes. During that time, the victim
observed that defendant was "thin and fairly tall. His
complexion [was] sort of an ashen gray, a gray pallor. His eyes
were sort of sunken and dark circles were around his eyes. He
was shaking." She also noted that defendant appeared to be in
his early thirties, had a thin mustache, and a "pitted" face
indicative of scarring (possibly from acne). The victim was
"scared but not overly scared" of defendant because "[h]e seemed
pathetic, and shaking." The victim was unable to tell whether
defendant was "Hispanic or light-skinned black" because of his
gray "pallor."
Wilson described the robber as a light-skinned, tall
African-American man in his thirties with a thin build. Both
the victim and Wilson testified that defendant was wearing a
hooded sweatshirt. However, the victim testified that defendant
was wearing a gray sweatshirt, and Wilson testified the
sweatshirt was "dark[.]" While working her other job at a
McDonald's, Wilson identified defendant to the police as the
same man she saw twice the previous day because he was wearing
the same clothes. Another Eckerd employee who identified
5 A-2006-14T1 defendant as the man he spoke to, which was recorded in the
video, testified that defendant was wearing "a light black, dark
navy blue type of a sweatshirt."
After defendant was arrested, he was interrogated by
Neptune Police Sergeant Michael Emmons. Emmons testified at
trial that he advised defendant of the reason for the
investigation, and that the evidence pointed to defendant as the
perpetrator who punched the victim during the robbery.
According to Emmons, defendant responded that "he never punched
a white woman in her face" despite that Emmons had not revealed
the victim's race to defendant.
Neptune Police Detective Kevin Devine, the State's expert
in the field of fingerprint examination, testified that a usable
latent fingerprint was found on the exterior of the passenger
door of the vehicle driven by the victim. The latent
fingerprint was sent to AFIS, a database of fingerprints which
includes individuals with criminal records, applicants for gun
permits, and government employees. No candidate list was
returned by State Police — meaning "the source of [the] latent
print [was] not in their database." The latent fingerprint was
also compared with the fingerprints of defendant, the victim and
her boyfriend (who owned the vehicle she was driving). Devine
testified that it was determined with 100% probability that the
6 A-2006-14T1 latent fingerprint was not a match for defendant, the victim or
her boyfriend.
II.
After the guilty verdict, the trial judge "granted the
State's motion to sentence defendant to an extended term as a
persistent offender and imposed a twenty-year sentence, subject
to parole ineligibility for [eighty-five percent] of that term,
as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2." Armour I, supra, slip op. at 1.
We affirmed the conviction but vacated the sentence and
remanded to the trial court for resentencing in conformance with
State v. Natale, 184 N.J. 458, 494-96 (2005). Armour I, supra,
slip op. at 8-10. On remand, defendant received the same
twenty-year sentence subject to NERA. The Supreme Court granted
defendant's petition for certification of our decision in Armour
I, limited to the issue of the sentence, and the matter was
"summarily remanded to the trial court for resentencing in light
of the Court's decision in State v. Pierce, 188 N.J. 155
(2006)." State v. Armour, 188 N.J. 259 (2006). Following the
second remand, defendant was again sentenced to twenty years
subject to NERA.
Defendant subsequently filed a PCR petition alleging
ineffective assistance of trial counsel. The now-defunct
7 A-2006-14T1 "Project Freedom Fund" (PFF) represented him during the PCR
proceedings. Following oral argument, the PCR judge denied the
petition in an oral opinion. Defendant appealed, contending
that both trial counsel and PCR counsel were ineffective. We
affirmed the denial in an unpublished opinion substantially for
the reasons set forth in the PCR judge's oral opinion. State v.
Armour, No. A-0672-08 (App. Div. Dec. 16, 2010) (slip op. at 3-
5), certif. denied, 206 N.J. 330 (2011).
III.
Defendant next filed a motion for a new trial on July 29,
2014, seeking the entry of an order for submission of the
unidentified latent fingerprint to AFIS and IAFIS. He argued
that the latent fingerprint could belong to a culpable third
party. In support of his argument, defendant submitted an
affidavit from Michael J. Sweedo, a "forensic consultant in the
areas of fingerprint identification, crime scene analysis and
blood pattern analysis[.]"2 Defendant also sought a new trial
based upon ineffective assistance of PCR counsel, relying on
newly discovered evidence that PFF was a sham organization that
2 Sweedo is a certified latent fingerprint examiner and senior crime scene analyst. In his affidavit, he offered information regarding "significant advances" in AFIS testing as well as AFIS's connection to the IAFIS database.
8 A-2006-14T1 provided ineffective assistance of counsel and had perpetrated a
fraud on the court.3
The judge denied the motion in an oral opinion on November
21, 2014. In his decision, the judge concluded "it was not the
intention of the Legislature to include fingerprints" in the DNA
retesting protocol set forth in N.J.S.A. 2A:84A-32a. He also
reasoned that evidence potentially linking "the fingerprint
found on the passenger door of the victim's vehicle to another
person would not necessarily establish [third-party] guilt.
Although the fingerprint was located where the robber entered
the vehicle, it is reasonable to assume that there were other
people who touched the vehicle in that location." The judge
noted the victim's testimony was "clear and consistent[,]" and
3 On August 23, 2011, the Office of the Attorney General filed a complaint naming PFF and its owner and operator, Bruce S. Buccolo (collectively the PFF defendants), as defendants. The complaint averred that the PFF defendants violated the Consumer Fraud Act and Regulations Governing General Advertising Practices, and that they engaged in acts of misrepresentation and misleading advertisements to solicit clients. Specifically, the complaint alleges that the PFF defendants "cynically exploited" inmates and their families by demanding up-front payments and then performing little work (sometimes by the use of non-attorneys or disbarred attorneys) or no work at all. A final judgment by default in the amount of $2.1 million, plus additional fees and costs, was entered against the PFF defendants on October 9, 2012. Defendant's PCR was handled by an attorney, Robert F. Conley, through PFF. On or about October 7, 2013, defendant received correspondence from the Office of the Attorney General identifying defendant as a potential recipient of restitution if any assets were seized pursuant to the judgment.
9 A-2006-14T1 that the jury "was fully aware that the fingerprint on the car
did not belong to defendant, and yet they convicted him
[anyway]." The judge did not address defendant's argument
regarding ineffective assistance of counsel. This appeal
followed.
Defendant raises the following arguments on appeal:
POINT I
THE TRIAL COURT IMPROPERLY DENIED [DEFENDANT'S] MOTION REQUESTING AN ORDER FOR THE SUBMISSION OF THE UNIDENTIFIED LATENT FINGERPRINT INTO THE AFIS AND IAFIS SYSTEMS, AND THE APPELLATE DIVISION SHOULD REVERSE THE TRIAL COURT'S DECISION AND ORDER THAT THE PRINT BE SUBMITTED INTO THE AFIS AND [IAFIS] SYSTEMS.
POINT II
THE TRIAL [COURT] IMPROPERLY DENIED [DEFENDANT'S] MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE, AND THE [APPELLATE] DIVISION SHOULD REVERSE THE TRIAL COURT'S DECISION.
A. THE TRIAL COURT ERRONEOUSLY DENIED [DEFENDANT'S] ARGUMENT FOR A NEW TRIAL BASED ON THE SUBMISSION OF THE UNIDENTIFIED FINGERPRINT.
B. THE TRIAL COURT ERRONEOUSLY FAILED TO ADDRESS [DEFENDANT'S] ARGUMENT FOR A NEW TRIAL BASED ON INEFFECTIVE ASSISTANCE OF [PCR] COUNSEL.
10 A-2006-14T1 IV.
Rule 3:20-1 and -2 provide a mechanism for seeking a new
trial following a criminal conviction. Rule 3:20-2 permits a
defendant to do so "on the ground of newly-discovered evidence"
at any time. In particular, a defendant may seek a new trial
where advances in scientific methodology previously unavailable
would likely have changed the result. State v. Behn, 375 N.J.
Super. 409, 429 (App. Div.), certif. denied, 183 N.J. 591
(2005).
A trial court's ruling on a motion for a new trial "shall
not be reversed unless it clearly appears that there was a
miscarriage of justice under the law." R. 2:10-1. Similarly,
pursuant to Rule 3:20-1, the trial judge shall not set aside a
jury verdict unless "it clearly and convincingly appears that
there was a manifest denial of justice under the law." The
"semantic" difference between "miscarriage of justice" and
"manifest denial of justice under the law" is an "oversight and
should not be construed as providing for a different standard in
criminal cases at the trial level than that applicable to
appellate review and to civil cases at the trial level."
Pressler & Verniero, Current N.J. Court Rules, comment 2 on R.
3:20-1 (2016) (citing State v. Perez, 177 N.J. 540, 555 (2003);
State v. Gaikwad, 349 N.J. Super. 62, 82 (App. Div. 2002)).
11 A-2006-14T1 "[A] motion for a new trial is addressed to the sound
discretion of the trial judge, and the exercise of that
discretion will not be interfered with on appeal unless a clear
abuse has been shown."4 State v. Russo, 333 N.J. Super. 119, 137
(App. Div. 2000); see also State v. Henries, 306 N.J. Super.
512, 529 (App. Div. 1997); State v. Conway, 193 N.J. Super. 133,
172 (App. Div.), certif. denied, 97 N.J. 650 (1984); State v.
Artis, 36 N.J. 538, 541 (1962).
V.
This matter was presented to the trial court under the
rubric of a motion for a new trial pursuant to Rule 3:20-1 and -
2. In furtherance of his motion defendant sought retesting of
the latent fingerprint pursuant to N.J.S.A. 2A:84A-32a to -32d
(the DNA retesting statute), which governs post-conviction
retesting of forensic DNA evidence. We commence our discussion
4 Defendant argues that our review should be de novo. We disagree. A trial court's decision regarding N.J.S.A. 2A:84A- 32a is premised upon the court's judgment and discretion. See, e.g., N.J.S.A. 2A:84A-32a(d)(5) (requiring the trial court to evaluate the weight of evidence "in its discretion" and "whether or not it was introduced at trial" in relation to presumably favorable DNA testing). Thus, we discern no basis to deviate from the abuse of discretion standard on motions for a new trial — the relief sought by defendant. However, our review of a trial court's legal determinations, such as the motion judge's conclusion that N.J.S.A. 2A:84A-32a was inapplicable, is de novo. See State v. Reece, 222 N.J. 154, 167 (2015).
12 A-2006-14T1 by addressing the statutes that govern the testing and
cataloguing of DNA and fingerprint evidence.
Law enforcement is required to record fingerprints under
the following circumstances:
immediately upon the arrest of any person for an indictable offense, or for any of the grounds specified in paragraph (1), (2), (3) or (4) of subsection [(a)] of section 5 of [N.J.S.A. 2C:25-21] or of any person believed to be wanted for an indictable offense, or believed to be an habitual criminal, or within a reasonable time after the filing of a complaint by a law enforcement officer charging any person with an indictable offense, or upon the arrest of any person for shoplifting, pursuant to [N.J.S.A.] 2C:20-11, or upon the arrest of any person for prostitution, pursuant to [N.J.S.A.] 2C:34-1, or the conviction of any other person charged with a nonindictable offense, where the identity of the person charged is in question[.]
[N.J.S.A. 53:1-15; see generally, N.J.S.A. 53:1-13 to -20.16.]5
The collection, testing and cataloguing of DNA samples is
governed by the DNA Database and Databank Act of 1994 (the DNA
Act), N.J.S.A. 53:1-20.17 to -20.38. The DNA Act was
established to enhance law enforcement's ability to detect and
deter recidivism "for certain violent crimes" or acts of
delinquency by juveniles which, if committed by an adult, would
constitute a crime. N.J.S.A. 53:1-20.18; see also N.J.A.C.
5 The fingerprinting statutes do not address DNA testing.
13 A-2006-14T1 13:81-1.1(b) ("It is the goal of the DNA Act to assist
[f]ederal, [s]tate, and local criminal justice and law
enforcement agencies in the identification, detection or
exclusion of individuals who are the subjects of criminal
investigations or prosecution. Identification, detection and
exclusion may be facilitated by the DNA analysis of biological
evidence left by the perpetrator of a crime and recovered from
the crime scene.").
In pertinent part, N.J.S.A. 53:1-20.20(g) states "[e]very
person convicted or found not guilty by reason of insanity of a
crime shall have a blood sample drawn or other biological sample
collected for purposes of DNA testing." Once the DNA samples
are drawn and their identification characteristics recorded,
they are "stored and maintained in the State DNA databank[,]"
and are also "forwarded to the [Federal Bureau of Investigation
(FBI)] for inclusion in [the FBI's Combined DNA Index System]."
N.J.S.A. 53:1-20.21; see also N.J.S.A. 53:1-20.19; State v.
O'Hagen, 189 N.J. 140, 148-49 (2007). The record of the
identification characteristics are "stored and maintained in the
State DNA database . . . ." Ibid.
The procedures for the "submission, identification,
analysis and storage of DNA samples and typing results of DNA
samples submitted under the [DNA Act]" are regulated pursuant to
14 A-2006-14T1 N.J.A.C. 13:81-1.1 to -7.1 (the regulations). N.J.A.C. 13:81-
1.1; N.J.A.C. 13:81-1.3 ("These rules apply to the DNA samples
taken from offenders for offenses covered in N.J.S.A. 53:1-
20.20."). "Offender[s]" obligated to submit DNA samples in
accordance with the regulations include "persons, including
juveniles, who meet the criteria [set forth] in N.J.S.A. 53:1-
20.20 . . . ." N.J.A.C. 13:81-1.2; N.J.A.C. 13:81-1.4(a)(8)
("The obligation to submit a DNA sample shall be imposed upon
. . . [p]ersons who are convicted on or after September 22,
2003[,] of crimes . . . .").
The DNA retesting statute was enacted in 2001 and amended
in 2015 without the inclusion of fingerprint testing. L. 2001,
c. 377, § 1, § 3; L. 2015, c. 127, § 1, § 2, § 3. An initial
draft of an Assembly bill on DNA retesting contemplated
fingerprint testing in addition to DNA testing. Assembly No. A-
2178 (March 6, 2000). However, the fingerprint testing language
was not included in later bills introduced in both the Assembly
and Senate. Senate No. S-1920 (December 4, 2000); Assembly No.
A-3996 (December 6, 2001); Senate No. S-1365 (February 27,
2014); Assembly No. 1678 (pre-filed for introduction in the 2014
session). No explanation for the removal of fingerprint testing
from the original bill was offered in the statements attached to
the subsequent bills or the legislation enacted in L. 2001, c.
15 A-2006-14T1 377, § 1.6 Senate Judiciary Committee, Statement to S-1920 (June
28, 2001); Assembly Judiciary Committee, Statement to S-1920
[First Reprint] (December 13, 2001); Assembly Judiciary
Committee, Statement to A-3996 (December 13, 2001).
We have previously recognized the qualitative differences
between fingerprint and DNA evidence. A.A. ex rel. B.A. v.
Attorney Gen. of N.J., 384 N.J. Super. 67, 96-97 (App. Div.
2006), aff’d, 189 N.J. 128 (2007); State v. O'Hagen, 380 N.J.
Super. 133, 146-47 (App. Div. 2006), aff’d, supra, 189 N.J. at
165. Nevertheless, the DNA Act notes "a compelling parallel
between the taking of DNA and fingerprinting," N.J.S.A. 53:1-
20.18, and the regulations require the submission of
fingerprints in addition to DNA by a qualifying offender,
N.J.A.C. 13.81-2.1(c), (e), and (f). The regulations also
govern the analysis and storage of DNA samples obtained and
tested pursuant to the DNA retesting statute. N.J.A.C. 13:81-
7.1.
Considering the legislative and regulatory commonality
regarding retesting of DNA and fingerprints in conjunction with
the absence of a fingerprint retesting statute, we are guided in
6 We note that the original bill introduced by the Assembly was "modeled after an existing Illinois law[,]" Assembly No. A-2178 (March 6, 2000), while the subsequent version enacted as L. 2001, c. 377, § 1 was "modeled after a recently enacted law in California." Senate No. S-1920 (December 4, 2000).
16 A-2006-14T1 our analysis by application of the DNA retesting statute. In re
Petition of Smith, 114 N.J. Super. 421, 433 (App. Div.) ("The
absence of statutory guidance . . . necessitates a practical
approach to the problem. In this respect we are guided by the
actions of the Legislature in other related areas."), certif.
denied, 59 N.J. 263 (1971); see also, Groh v. Groh, 439 N.J.
Super. 186, 189-95 (Law Div. 2014) (applying divorce law to
adjudicate dissolution of a civil union where the New Jersey
Civil Union Act was silent on the no-fault ground of
irreconcilable differences); Filgueiras v. Newark Pub. Sch., 426
N.J. Super. 449, 468-75 (App. Div.) (applying federal Civil
Rights Act where the New Jersey Civil Rights Act was silent on
an issue implicating substantive due process), certif. denied,
212 N.J. 460 (2012); Casey v. Brennan, 344 N.J. Super. 83, 106
(App. Div.) (noting that "we frequently look to Delaware law for
guidance or assistance" when considering corporate law issues of
first impression), certif. denied, 170 N.J. 389 (2001). We are
mindful that the motion judge concluded the DNA retesting
statute was inapplicable. Notwithstanding, we may "affirm the
trial court's decision on grounds different from those relied
upon by the trial court." State v. Heisler, 422 N.J. Super.
399, 416 (App. Div. 2011).
17 A-2006-14T1 N.J.S.A. 2A:84A-32a(a) states that "[a]ny eligible person
may make a motion before the trial court that entered the
judgment of conviction for the performance of forensic DNA
testing." Both the DNA retesting statute and the regulations
specifically contemplate the retesting of DNA recorded and
retained pursuant to the DNA Act. N.J.S.A. 2A:84A-32a(k);
N.J.A.C. 13:81-1.1(a).7 "The [DNA retesting] statute applies
broadly to any individual who was convicted of a crime and is
currently serving a sentence." State v. Reldan, 373 N.J. Super.
396, 402 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005).
The motion shall not be granted unless, following a hearing, the
defendant establishes the following:
(1) the evidence to be tested is available and in a condition that would permit the DNA testing that is requested in the motion;
(2) the evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect;
(3) the identity of the defendant was a significant issue in the case;
7 We note parenthetically that defendant is subject to the requirements of the DNA Act and the concomitant regulations because his conviction qualifies him as both a "person" and as an "offender" required to submit a DNA sample pursuant to N.J.S.A. 53:1-20.20(g), as well as N.J.A.C. 13:81-1.2, -1.3 and -1.4(a)(8).
18 A-2006-14T1 (4) the eligible person has made a prima facie showing that the evidence sought to be tested is material to the issue of the eligible person’s identity as the offender;
(5) 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;
(6) the evidence sought to be tested meets either of the following conditions:
(a) it was not tested previously; (b) it was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the offender or have a reasonable probability of contradicting prior test results;
(7) the testing requested employs a method generally accepted within the relevant scientific community; and
(8) the motion is not made solely for the purpose of delay.
[N.J.S.A. 2A:84A-32a(d).]
It is defendant's burden to establish that all of the elements
necessary for DNA testing have been fulfilled. See State v.
Peterson, 364 N.J. Super. 387, 392-93 (App. Div. 2003) (holding
that the DNA retesting statute "sets forth eight conditions a
19 A-2006-14T1 convicted person must establish to be entitled to such
testing[.]").
Here, the viability of the latent fingerprint and its
availability for accepted scientific testing via AFIS and IAFIS
is not at issue. See N.J.S.A. 2A:84A-32a(d)(1), (2), and (7).
The State does not challenge defendant's assertions that the
AFIS database has expanded since the time the latent fingerprint
was tested, or that the latent fingerprint was never submitted
for IAFIS testing. See N.J.S.A. 2A:84A-32a(d)(6). Nor does the
State oppose defendant's application based on allegations of
delay, see N.J.S.A. 2A:84A-32a(d)(8), or any other procedural
infirmity, see N.J.S.A. 2A:84A-32a(a). Defendant has professed
his innocence throughout the course of these proceedings. He
challenged the eyewitness identifications at trial. Therefore,
while the proofs at trial were substantial, defendant has made a
prima facie showing that the latent fingerprint is at least
material to the issue of defendant's identity as the robber.
See N.J.S.A. 2A:84A-32a(d)(3) and (4).
We construe our decision to be rooted in an analysis of
N.J.S.A. 2A:84A-32a(d)(5), which does not require a defendant to
"prove the DNA results will be favorable, rather it must only be
established that there is a reasonable probability that a new
trial would be granted if the DNA results are favorable to the
20 A-2006-14T1 defendant." Reldan, supra, 373 N.J. Super. at 402 (citing
Peterson, supra, 364 N.J. Super. at 396-97). Thus, the
"reasonable probability" requirement set forth in subsection
(d)(5) "applies only to the grant of a new trial in the event
the results of DNA testing are favorable." State v. DeMarco,
387 N.J. Super. 506, 517 (App. Div. 2006) (quoting Peterson,
supra, 364 N.J. Super. at 396-97).
In that vein, where a new trial is sought premised on the
discovery of "new" evidence, the evidence must be: (1) material
to the issue and not merely cumulative, impeaching or
contradictory; (2) discovered after the trial and not reasonably
discoverable prior thereto; and (3) of a nature as to probably
have affected the jury's verdict. State v. Carter, 85 N.J. 300,
314 (1981); see also State v. Ways, 180 N.J. 171, 187-93 (2004).
In light of our analysis of N.J.S.A. 2A:84A-32a(a) and N.J.S.A.
2A:84A-32a(d) (excluding subsection (d)(5)), it is
uncontroverted that the issue presented here regarding the
latent fingerprint is "material[,]" and that given the
undisputed advances in AFIS and IAFIS the results would not have
been reasonably discovered prior to or during trial. Ibid.
Given the difficulty of anticipating the outcome of a DNA
(or fingerprint) test, "the trial court should postulate
whatever realistically possible test results would be most
21 A-2006-14T1 favorable to defendant in determining whether he [or she] has
established that 'favorable' DNA testing 'would raise a
reasonable probability . . . a motion for a new trial . . .
would be granted[.]'" DeMarco, supra, 387 N.J. Super. at 517
(quoting Peterson, supra, 364 N.J. Super. at 397 (emphasis
removed)). "DNA test results that not only tended to exculpate
defendant but to implicate someone else would be evidence of
'the sort that would probably change the jury's verdict if a new
trial were granted.'" Peterson, supra, 364 N.J. Super. at 398-
99 (quoting Carter, supra, 85 N.J. at 314).
There is a possibility that retesting the latent
fingerprint could produce the fingerprint of an individual with
physical characteristics similar to those of defendant, who was
in the area of the robbery at the time it occurred, and who
could be identified as an individual within the criminal milieu
with a history of robbery or related offenses. There is no
burden on defendant to demonstrate the likelihood of such a
favorable result. Reldan, supra, 373 N.J. Super. at 402;
Demarco, supra, 387 N.J. Super. at 517. Even were we to
contemplate such a hypothetical outcome of retesting here, for
the reasons stated below we conclude there is no reasonable
probability that defendant could establish his entitlement to a
new trial.
22 A-2006-14T1 To be sure, in the absence of deliberate judicial review of
the trial record which produced the conviction, the ease with
which to conjure a favorable outcome would result in retesting
in every case involving unidentified fingerprints. In Reldan we
addressed this in the context of the DNA retesting statute by
noting, "[a] defendant cannot compel the State to release the
evidence for DNA testing where the evidence at trial was
overwhelming and the defendant did not present a defense or
alibi that would be consistent with the explanation the DNA
[testing] results might supply." Reldan, supra, 373 N.J. Super.
at 402-03 (App. Div. 2004); compare Peterson, supra, 364 N.J.
Super. at 396 (holding that the strength of the State's proofs
is not a relevant factor for consideration where the
perpetrator's identity was at issue).
In this matter, consistent with our holding in Reldan, even
the most favorable retesting outcome and the "vagaries" of
eyewitness identification, United States v. Wade, 388 U.S. 218,
228, 87 S. Ct. 1926, 1933, 18 L. Ed. 2d 1149, 1158 (1967), State
v. Henderson, 208 N.J. 208 (2011), must be weighed against the
compelling proofs presented by the State. These proofs include:
two reliable in-court identifications; video evidence
corroborating the witnesses' testimony, authenticated by a third
witness who also interacted with defendant; and a statement made
23 A-2006-14T1 by defendant during the police investigation. Significantly,
the jury was presented with testimony favorable to defendant
that the latent fingerprint was not his — yet that testimony was
not sufficient to produce reasonable doubt in the jurors' minds.
Finally, defendant did not present a viable defense or alibi
"that would be consistent with the explanation the [fingerprint
retesting] results might supply." Reldan, supra, 373 N.J.
Super. at 403.8 Instead, his defense focused on purported
inconsistencies in the witnesses' description of defendant's
clothing. Armour I, supra, slip op. at 3.
Notwithstanding the known risk of mistaken identification,
see, e.g., Wade, supra, 388 U.S. at 228, 87 S. Ct. at 1933, 18
L. Ed. 2d at 1158, Henderson, supra, 208 N.J. at 208, both the
victim and Wilson provided comprehensive and detailed
descriptions of defendant's appearance and behavior. The victim
was an experienced nurse. She was characterized by the State at
oral argument as the "ideal" witness, who provided a detailed
physical description of defendant based, in part, upon her
professional background. Wilson was able to identify defendant
from her observations of him on the date of the incident and her
8 A defendant may assert an alibi pursuant to Rule 3:12-2. Although a defendant has no obligation to assert an alibi, in the context of a claim for retesting forensic evidence, we adopt the view expressed in Reldan that the failure to assert or present an alibi defense is an appropriate consideration.
24 A-2006-14T1 recall of his appearance when she identified him the following
day. The trial judge also instructed the jury regarding cross-
racial identification. See Model Jury Charge (Criminal),
"Identification: In-Court and Out-of-Court Identifications"
(2012); State v. Cromedy, 158 N.J. 112, 132 (1999), modified,
Henderson, supra, 208 N.J. at 299. Juries are presumed to
understand and follow instructions. State v. Feaster, 156 N.J.
1, 65 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149
L. Ed. 2d 306 (2001); see also State v. Muhammad, 145 N.J. 23,
52 (1996).
In Peterson, supra, 364 N.J. Super. at 396, which we
construe narrowly and limited to its facts, we held that "the
strength of the evidence against a defendant is not a relevant
factor in determining whether his [or her] identity as the
perpetrator was a significant issue." Therefore, we held that
DNA test results that not only tended to exculpate defendants
but to inculpate another person would be evidence that would
probably change the jury's verdict. However, in Peterson the
identity of the murderer was likely (and almost certainly) the
person whose DNA was found at the crime scene. See id. at 392.
In Reldan, supra, 373 N.J. Super. at 404, we distinguished
Peterson by noting that the evidence in Peterson "could not only
exculpate the defendant, but implicate another." We also
25 A-2006-14T1 pointed to the defendant's failure to provide an alibi, which
would have been evidence that "could serve to exculpate the
defendant and potentially change the jury's verdict." Ibid.
Here, similar to Reldan, even if resubmitting the latent
fingerprint for further testing produced a favorable result, it
would not constitute grounds for a new trial as, standing alone,
it would neither exculpate defendant nor inculpate another
person. The latent fingerprint at issue was not the sole
evidence linking the robber to the crime. Nor was it a crucial
piece of evidence, save for the original test result which was
favorable to defendant. It should not be overlooked that during
trial there was no argument raised by defendant about the
importance of the latent fingerprint in regard to its
inculpating a third party. Thus, we hold defendant has failed
to satisfy both the test set forth in N.J.S.A. 2A:84A-32a(d)(5)
and, by extension, the test in Carter, supra, 85 N.J. at 314.
Defendant also argues that State v. Velez, 329 N.J. Super.
128 (App. Div. 2000), decided prior to the enactment of the DNA
retesting statute, furnishes a basis for retesting as well. In
Velez we reversed an order denying a PCR petition and remanded
for DNA testing. Id. at 136-37. We noted "the objective of the
criminal justice system is the fair conviction of the guilty and
the protection of the innocent. The system fails if an innocent
26 A-2006-14T1 person is convicted." Id. at 137. By contrast here defendant
sought retesting of the latent fingerprint by motion for a new
trial. Accordingly, our analysis is premised on the tests
promulgated in N.J.S.A. 2A:84A-32a(d) and Carter, supra, 85 N.J.
at 314. Again, by application of those tests, we conclude Velez
does not provide a basis for retesting.
There are no limitations on the amount of applications that
may be filed under the DNA retesting statute. Nevertheless, we
recognize the important public interest regarding finality and
repose. See, e.g., First Union Nat. Bank v. Penn Salem Marina,
Inc., 190 N.J. 342, 352 (2007); Olivieri v. Y.M.F. Carpet, Inc.,
186 N.J. 511, 521-22 (2006); Cherry Hill Manor Assocs. v.
Faugno, 182 N.J. 64, 74 (2004); State v. Burgess, 298 N.J.
Super. 254 (App. Div. 1997), aff’d, 154 N.J. 181 (1998); State
v. Cupe, 289 N.J. Super. 1, 13 (App. Div.), certif. denied, 144
N.J. 589 (1996); Velasquez v. Franz, 123 N.J. 498, 505 (1991);
Zaccardi v. Becker, 88 N.J. 245, 262 (1982) (Schreiber, J.,
concurring and dissenting); Hodgson v. Applegate, 31 N.J. 29, 43
(1959). Given the nature of the expanding pool of fingerprint
entries in AFIS and IAFIS, without the requisite predicate
demonstration pursuant to Carter, supra, 85 N.J. at 314 (as well
as N.J.S.A. 2A:84A-32a), defendants could endlessly seek post-
conviction retesting. This would occur in the absence of a
27 A-2006-14T1 deliberative judicial analysis contemplating that evidence which
resulted in conviction versus that potential evidence which
defendant argues could result in a new trial. Should the
judicial analysis result in a determination antithetical to a
defendant’s request, as here, it would promote finality and
repose.
Similar to Velez, supra, 329 N.J. Super. at 137, "[w]e
offer no view" as to defendant's innocence or guilt. Rather,
our decision is limited to whether retesting the latent
fingerprint "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."
N.J.S.A. 2A:84A-32a(d)(5); see also Carter, supra, 85 N.J. at
314. After thoughtful attention to the trial record, including
the substantial and compelling proofs presented, the exculpatory
testimony involving the same latent fingerprint and no assertion
by defendant of an alibi, we hold that retesting would not raise
a reasonable probability that a motion for a new trial based
upon newly discovered evidence would be granted.
In reaching our decision we acknowledge, as a general
proposition, the difficulty of making an abstract decision
regarding hypothetical test results. Pursuant to that
acknowledgement, our decision is predicated upon, and limited
28 A-2006-14T1 to, our finding that even a favorable outcome of retesting would
be overshadowed by the probative evidence of defendant's guilt.
Further, it is not our intent to establish a bright-line
rule where retesting of fingerprints is, or is not, required.
We recognize that such a rule could produce an unfair result
when, unlike here, there is a rational relationship between the
request and evidence that might have played a material role in
the conviction.9
VI.
Finally, with respect to defendant's claim that he was
provided ineffective assistance of PCR counsel relative to his
motion for a new trial, we defer these claims to a PCR petition.
See R. 3:22-12(a)(2) (permitting the filing of a second or
subsequent PCR petition if that petition alleges the ineffective
assistance of PCR counsel, subject to certain time
restrictions); R. 3:22-4(b). Although defendant relies on
matters in the record in making his ineffective assistance of
counsel claim, there are extensive proofs outside the record,
particularly as it pertains to Conley's performance and
defendant's interaction with him, as well as defendant's
9 In light of our decision, we conclude that no hearing pursuant to N.J.S.A. 2A:84A-32a, including testimony from Sweedo, was required.
29 A-2006-14T1 interaction with the PFF and Buccolo.10 Thus, defendant's
ineffective assistance claim is better suited for a PCR
petition.
Affirmed.
10 As a corollary, although the October 7, 2013 correspondence from the Office of the Attorney General addressed to defendant identifies him as a "consumer" and claimant for restitution, it is unclear whether defendant ever qualified as a recipient or whether any restitution was received.
30 A-2006-14T1