NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1403-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONALD PRATOLA,
Defendant-Appellant. ________________________
Submitted October 13, 2020 – Decided November 19, 2020
Before Judges Hoffman and Smith.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. SGJ-2-80.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (William P. Cooper-Daub, Deputy Attorney General, of counsel and on the brief; Lila B. Leonard, Deputy Attorney General, on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Donald Pratola appeals from an August 17, 2018 Law Division
order denying his post-conviction motion to compel the submission of DNA
evidence to the Combined DNA Index System (CODIS) under N.J.S.A. 2A:84A-
32(a). We affirm.
On January 11, 1979, three men broke into a funeral home in Irvington
and while attempting to commit a theft, shot and killed the funeral home's
proprietor, Henry Rezem. In October of 1980, a grand jury returned an
indictment, charging defendant with the murder of Mr. Rezem as well as
attempted robbery and related crimes.
At defendant's trial, which commenced on March 16, 1981, the State
presented testimony from the victim's wife, Hedwig Rezem, who provided out-
of-court and in-court identifications of defendant. Ms. Rezem testified that on
the morning of the murder, after hearing a "pop" and finding her husband shot,
she observed three men fleeing the funeral home. One of the three men, whom
Ms. Rezem identified as defendant, briefly lingered behind, and pointed a gun
at her. Ms. Rezem stated she looked defendant in the eyes for three to four
seconds from a distance of eighteen feet, before he turned and fled with the
others, whom she did not see.
A-1403-18T1 2 Defendant's former girlfriend, Barbara Hammed, also testified against
him. Hammed testified that defendant had confessed his involvement in the
murder and even showed her his means of entry into the funeral home. Hammed
further identified the murder weapon as belonging to defendant and testified that
defendant had shown her a pair of handcuffs in his vehicle on one occasion. The
perpetrators had used handcuffs to restrain Mr. Rezem before shooting him. The
State also produced a recording, obtained using a judge-sanctioned wiretap, of
defendant telling Hammed over the phone, "that guy in the funeral home, that
was the topper."
Another witness, Anthony Coppolla, testified that one week before the
murder, defendant solicited his cooperation in an armed robbery and that
afterwards, defendant informed him it had gone poorly because the occupants
had been found at home. Defendant also admitted various details of the crime
to Coppolla as well as his financial motive for the crime and his intent to change
his hairstyle to avoid being linked to a police composite of the perpetrator.
At trial, defendant claimed Hammed fabricated her testimony as revenge
after discovering defendant was in another relationship. He also explained that
he had told Hammed he was involved in the crime, but had only done so to
A-1403-18T1 3 impress her. Both defendant and his wife testified that they were together at a
gas station and then eating lunch at the time the crime occurred.
At the conclusion of the trial, in March of 1981, the jury convicted
defendant of seven charges, including murder and attempted robbery. On May
18, 1981, the trial court sentenced defendant to life in prison with an additional
concurrent sentence. Defendant was released on parole on June 26, 2018.
Since 1981, defendant has made repeated attempts to vacate his
conviction. In 2013, we reviewed defendant's then-latest application for post-
conviction relief (PCR), and in affirming the trial court's denial of his
application, we noted the lengthy procedural history of defendant's attempts to
obtain PCR. See State v. Pratola, No. A-3729-10T4 (App. Div. July 31, 2013)
(slip op. at 1-3). We need not recount all of defendant's attempts at post-
conviction relief here, beyond what is relevant to this appeal.
In 2007, defendant filed his initial motion for DNA testing under N.J.S.A.
2A:84A-32a. On April 13, 2009, Judge Robert Gardner granted the motion and
issued an order compelling the State to produce evidence and submit it for DNA
testing. Judge Gardner found defendant's application met all the required
elements to compel DNA testing under N.J.S.A. 2A:84A-32a and ordered
A-1403-18T1 4 various items of physical evidence recovered from police storage and sent to
Orchid Cellmark Laboratory (Cellmark) in Dallas, Texas.
On April 29, 2009, before any evidence was submitted to Cellmark,
defendant sent a letter to Judge Gardner requesting the order be amended to
change the testing laboratory from Cellmark to National Medical Service in
Pennsylvania, citing concerns over shipping the evidence to Dallas. The State
sent a letter objecting to defendant's request and suggesting it would consent to
sending the evidence to either the New Jersey State Police (NJSP) Forensic
Science Laboratory or to Bode Technology Group in Virginia if defendant
remained opposed to Cellmark as the testing lab. However, on May 5, 2009,
defendant consented to sending the evidence to Cellmark, pursuant to the
original order.
On May 3, 2010, Cellmark sent the parties a report detailing the results
of the DNA testing. It reported that three pieces of evidence produced DNA
profiles: L-brackets, broken glass, and tape on the broken glass, all recovered
from a broken window identified as the perpetrator's point of entry into the
Rezem Funeral Home. The DNA profiles from all three items were "a mixture
consistent with at least two individuals, including at least one unknown male."
With respect to the DNA found on the L-brackets and broken glass, the victim,
A-1403-18T1 5 Mr. Rezem, and defendant were excluded as possible contributors. With respect
to the tape, Mr. Rezem was excluded, but no determination could be made as to
whether defendant was a possible contributor.
Upon receipt of the lab report, defendant sought to have the DNA profiles
submitted to CODIS, the national DNA databased maintained by the Federal
Bureau of Investigation, to see whether the DNA profiles matched with any
offenders in the CODIS database, who could then be identified as the true
perpetrators of Mr. Rezem's murder and thus exonerate defendant. The State
opposed this request, indicating the data obtained from Cellmark could not be
submitted to the CODIS database because Cellmark did not meet the standards
required by National DNA Index System (NDIS) rules and because the swabbing
contained DNA from at least three individuals, and mixtures of DNA from more
than two individuals could not be entered into the CODIS database. According
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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-1403-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONALD PRATOLA,
Defendant-Appellant. ________________________
Submitted October 13, 2020 – Decided November 19, 2020
Before Judges Hoffman and Smith.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. SGJ-2-80.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (William P. Cooper-Daub, Deputy Attorney General, of counsel and on the brief; Lila B. Leonard, Deputy Attorney General, on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Donald Pratola appeals from an August 17, 2018 Law Division
order denying his post-conviction motion to compel the submission of DNA
evidence to the Combined DNA Index System (CODIS) under N.J.S.A. 2A:84A-
32(a). We affirm.
On January 11, 1979, three men broke into a funeral home in Irvington
and while attempting to commit a theft, shot and killed the funeral home's
proprietor, Henry Rezem. In October of 1980, a grand jury returned an
indictment, charging defendant with the murder of Mr. Rezem as well as
attempted robbery and related crimes.
At defendant's trial, which commenced on March 16, 1981, the State
presented testimony from the victim's wife, Hedwig Rezem, who provided out-
of-court and in-court identifications of defendant. Ms. Rezem testified that on
the morning of the murder, after hearing a "pop" and finding her husband shot,
she observed three men fleeing the funeral home. One of the three men, whom
Ms. Rezem identified as defendant, briefly lingered behind, and pointed a gun
at her. Ms. Rezem stated she looked defendant in the eyes for three to four
seconds from a distance of eighteen feet, before he turned and fled with the
others, whom she did not see.
A-1403-18T1 2 Defendant's former girlfriend, Barbara Hammed, also testified against
him. Hammed testified that defendant had confessed his involvement in the
murder and even showed her his means of entry into the funeral home. Hammed
further identified the murder weapon as belonging to defendant and testified that
defendant had shown her a pair of handcuffs in his vehicle on one occasion. The
perpetrators had used handcuffs to restrain Mr. Rezem before shooting him. The
State also produced a recording, obtained using a judge-sanctioned wiretap, of
defendant telling Hammed over the phone, "that guy in the funeral home, that
was the topper."
Another witness, Anthony Coppolla, testified that one week before the
murder, defendant solicited his cooperation in an armed robbery and that
afterwards, defendant informed him it had gone poorly because the occupants
had been found at home. Defendant also admitted various details of the crime
to Coppolla as well as his financial motive for the crime and his intent to change
his hairstyle to avoid being linked to a police composite of the perpetrator.
At trial, defendant claimed Hammed fabricated her testimony as revenge
after discovering defendant was in another relationship. He also explained that
he had told Hammed he was involved in the crime, but had only done so to
A-1403-18T1 3 impress her. Both defendant and his wife testified that they were together at a
gas station and then eating lunch at the time the crime occurred.
At the conclusion of the trial, in March of 1981, the jury convicted
defendant of seven charges, including murder and attempted robbery. On May
18, 1981, the trial court sentenced defendant to life in prison with an additional
concurrent sentence. Defendant was released on parole on June 26, 2018.
Since 1981, defendant has made repeated attempts to vacate his
conviction. In 2013, we reviewed defendant's then-latest application for post-
conviction relief (PCR), and in affirming the trial court's denial of his
application, we noted the lengthy procedural history of defendant's attempts to
obtain PCR. See State v. Pratola, No. A-3729-10T4 (App. Div. July 31, 2013)
(slip op. at 1-3). We need not recount all of defendant's attempts at post-
conviction relief here, beyond what is relevant to this appeal.
In 2007, defendant filed his initial motion for DNA testing under N.J.S.A.
2A:84A-32a. On April 13, 2009, Judge Robert Gardner granted the motion and
issued an order compelling the State to produce evidence and submit it for DNA
testing. Judge Gardner found defendant's application met all the required
elements to compel DNA testing under N.J.S.A. 2A:84A-32a and ordered
A-1403-18T1 4 various items of physical evidence recovered from police storage and sent to
Orchid Cellmark Laboratory (Cellmark) in Dallas, Texas.
On April 29, 2009, before any evidence was submitted to Cellmark,
defendant sent a letter to Judge Gardner requesting the order be amended to
change the testing laboratory from Cellmark to National Medical Service in
Pennsylvania, citing concerns over shipping the evidence to Dallas. The State
sent a letter objecting to defendant's request and suggesting it would consent to
sending the evidence to either the New Jersey State Police (NJSP) Forensic
Science Laboratory or to Bode Technology Group in Virginia if defendant
remained opposed to Cellmark as the testing lab. However, on May 5, 2009,
defendant consented to sending the evidence to Cellmark, pursuant to the
original order.
On May 3, 2010, Cellmark sent the parties a report detailing the results
of the DNA testing. It reported that three pieces of evidence produced DNA
profiles: L-brackets, broken glass, and tape on the broken glass, all recovered
from a broken window identified as the perpetrator's point of entry into the
Rezem Funeral Home. The DNA profiles from all three items were "a mixture
consistent with at least two individuals, including at least one unknown male."
With respect to the DNA found on the L-brackets and broken glass, the victim,
A-1403-18T1 5 Mr. Rezem, and defendant were excluded as possible contributors. With respect
to the tape, Mr. Rezem was excluded, but no determination could be made as to
whether defendant was a possible contributor.
Upon receipt of the lab report, defendant sought to have the DNA profiles
submitted to CODIS, the national DNA databased maintained by the Federal
Bureau of Investigation, to see whether the DNA profiles matched with any
offenders in the CODIS database, who could then be identified as the true
perpetrators of Mr. Rezem's murder and thus exonerate defendant. The State
opposed this request, indicating the data obtained from Cellmark could not be
submitted to the CODIS database because Cellmark did not meet the standards
required by National DNA Index System (NDIS) rules and because the swabbing
contained DNA from at least three individuals, and mixtures of DNA from more
than two individuals could not be entered into the CODIS database. According
to the State, DNA mixtures of more than two individuals could only be compared
with specific target suspects.
Consequently, on May 18, 2010, defendant requested Judge Gardner order
a comparison of the entry-point DNA profiles with Reginald Curry, a suspect in
several local crimes at the time of the murder, as well as with John DeRosa and
Anthony Coppolla, other suspects in defendant's case. Judge Gardner ordered
A-1403-18T1 6 DeRosa and Curry to submit to a buccal swab, and after testing their
submissions, Cellmark determined the DNA comparison excluded both DeRosa
and Curry as matches to the DNA profiles obtained from the entry-point
evidence. Because Coppolla was deceased at this point, defendant hoped to
obtain a sample of Coppolla's daughter's DNA. However, it appears no sample
from Coppolla's daughter was ever obtained, since at that time, defendant's
attorney moved to withdraw defendant's DNA-related requests for relief,
without prejudice, so she could refile following an opportunity to deal with
personal issues and perform additional investigation. Judge Gardner granted her
motion.
On November 9, 2015, the New Jersey legislature amended N.J.S.A.
2A:84A-32a, adding section subsection (l), which provides in part:
If evidence tested at a non-NDIS-participating laboratory pursuant to this section reveals a DNA profile that is not that of the eligible person or the victim, the court shall direct the prosecuting agency appearing on the motion to request that the New Jersey State Police Office of Forensic Services DNA Laboratory or other NDIS-participating laboratory involved in the matter submit the profile to CODIS, if the requirements and prerequisites for acceptance and submission are met, to determine whether it matches a DNA profile of a known individual or a DNA profile from an unsolved crime.
A-1403-18T1 7 In light of this amendment, on April 24, 2017, defendant filed an
application to reopen his motion for DNA submission to CODIS. On June 20,
2017, he refiled the motion, evidently because the court did not receive his initial
motion. Judge Mark Ali heard defendant's motion on February 5, 2018 and the
following day, ordered the Office of the Attorney General to direct the NJSP
Office of Forensic Services DNA Laboratory to submit the DNA profiles
obtained by Cellmark to CODIS to search for matches in the index.
NJSP refused to comply with the court's order, on the basis that Cellmark,
rather than the State Police laboratory, tested the DNA profiles and because the
policies and procedures of Cellmark did not comply with the necessary
requirements for submission to CODIS. The State adopted the NJSP's position
and claimed profiles could not be submitted to CODIS because CODIS would
not accept them. The State also implied defendant was at fault for rendering the
profiles unacceptable by arguing that defendant knew the policies and
procedures of Cellmark were non-compliant and knew the risks associated with
testing at Cellmark, yet agreed to send the evidence for testing at a non-
compliant lab. On May 14, 2018, the CODIS State Administrator sent Judge Ali
a letter explaining that the DNA profiles generated by Cellmark failed to meet
A-1403-18T1 8 the requirements for submission to CODIS, therefore, the profiles could not be
uploaded.
Judge Ali heard arguments on defendant's motion for a new trial based on
newly discovered evidence on August 17, 2018. He also considered whether the
DNA profiles provided by Cellmark could be submitted to CODIS.
At the motion hearing, defendant maintained that, since the DNA profiles
obtained from the entry-point evidence excluded him as a contributor,
submission to CODIS was necessary because the profiles might match to a
known offender, which would cast doubt on defendant's identity as the murderer
and therefore, warrant a new trial. Defendant also argued Judge Gardner's 2009
order to test the entry-point evidence bound Judge Ali to order the DNA profiles
be submitted to CODIS. The State responded that Judge Gardner's order was
just that, an order to test DNA, which Cellmark tested in compliance with that
order. Additionally, the State maintained it was impossible to upload the
Cellmark profiles to CODIS, but argued even if it were possible, the results
would not warrant a new trial because "there is no possible outcome of that test
that would exculpate [defendant]."
After hearing the parties' arguments, Judge Ali denied defendant's motion
to compel submission of DNA evidence to CODIS. In his oral decision, Judge
A-1403-18T1 9 Ali noted that to compel DNA testing under N.J.S.A. 2A:84A-32a, a defendant
must satisfy eight statutory prerequisite. The judge found defendant failed to
meet the fifth prerequisite, which required defendant show "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." N.J.S.A. 2A:84A-32a(d)(5). Judge Ali determined
that even if the DNA profile matched with Anthony Coppolla, who testified
against defendant at his trial, the State's evidence would remain strong enough
to convict defendant beyond a reasonable doubt, even without Coppolla's
testimony.
On appeal, defendant argues:
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO UPLOAD THE DNA PROFILES PROVIDED BY CELLMARK INTO CODIS, THEREBY VIOLATING DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL, INCLUDING THE RIGHT TO PRESENT A DEFENSE.
In a supplemental pro se brief, defendant also raises the following arguments:
POINT ONE
IN 2015 FORMER GOVERNOR CHRISTIE ORDERED ALL PERSON THAT HAVE (DNA) IN THEIR CASE HAVE THE RIGHT TO HAVE THERE
A-1403-18T1 10 (DNA) SENT TO STATE & FEDERAL CODIS FOR A MATCH[;]
....
POINT TWO
ON FEBRUARY 24, 2010, DEFENDANT PRATOLA APPEARED IN COURT BEFORE JUDGE ROBERT GARDNER, J.S.C. IN ESSEX COUNTY FOR A CONFERENCE HEARING ON THE (DNA) THAT WAS FOUND AT THE SCENE OF THE CRIME ON JANUARY 11, 1979[.]
N.J.S.A. 2A:84A-32a imposes certain requirements upon a defendant who
seeks to have DNA testing conducted after he has been convicted of a crime.
The applicable portion of the statute in this respect is subsection (d), which
provides as follows:
The court shall not grant the motion for DNA testing unless, after conducting a hearing, it determines that all of the following have been established:
(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;
A-1403-18T1 11 (3) the identity of the defendant was a significant issue in the case;
(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.
A-1403-18T1 12 [N.J.S.A. 2A:84A-32a(d) (emphasis added).]
Significantly, the statute does not compel DNA testing to be performed
by the State just because such testing might not be inconvenient or burdensome.
Instead, the statute directs that the court "shall not grant" a motion to obtain such
testing unless "all of" the elements of subsections (d)(1) through (8) have been
satisfied. N.J.S.A. 2A:84A-32a(d). In many instances, as here, the pivotal
factor lies under subsection (d)(5), i.e., whether a new trial would be granted if
the DNA results turn out to be "favorable" to the defense. See, e.g., State v.
Peterson, 364 N.J. Super. 387, 394-97 (App. Div. 2003).
As we noted in Peterson:
[T]here may be a variety of 'favorable' results of DNA testing, some of which would not raise a sufficient question concerning the integrity of the jury verdict to require a new trial, but others of which would raise such serious doubt concerning the fairness of the trial and a convicted person's guilt that a new trial would be required.
[Id. at 397.]
The court "should postulate whatever realistically possible test results
would be most favorable to defendant in determining whether he has established
that 'favorable' DNA testing 'would raise a reasonable probability [that] a motion
for new trial based upon newly discovered evidence would be granted[.]'" Ibid.
A-1403-18T1 13 (quoting N.J.S.A. 2A:84A-32a(d)(5)); see also State v. DeMarco, 387 N.J.
Super. 506, 513-14 (App. Div. 2006) (applying the "reasonable probability"
standard); State v. Reldan, 373 N.J. Super. 396, 404 (App. Div. 2004) (same).
Having considered the arguments advanced on appeal, in light of the
record and the applicable law, we reject defendant's arguments and claims of
error. We concur with Judge Ali's conclusion that defendant failed to "meet the
'reasonable probability' standard" required by N.J.S.A. 2A:84A-32a(d)(5) to
compel submission of DNA evidence to CODIS.
There would be little to no doubt cast on defendant's conviction even if
the DNA profiles were submitted to CODIS and matched with another
individual. At defendant's trial, the State presented evidence showing defendant
was one of three accomplices who attempted to burglarize the victim's place of
business. The two other perpetrators were never identified, and one or both of
those individuals' DNA could match the profiles found on the entry-point
evidence. However, such a match would not exonerate defendant as his
conviction did not depend on him being identified as the individual who literally
broke the window to enter the funeral home. Rather, the basis for defendant's
conviction was Ms. Rezem's eyewitness identification of defendant at the crime
scene, the testimony of two of defendant's acquaintances who claimed defendant
A-1403-18T1 14 confessed his involvement in the robbery and murder to them, and a recording
of defendant stating "that guy in the funeral home, that was the topper." Thus,
determining the identity of other persons who potentially conducted the physical
breaking into the funeral home would be immaterial to the State's proof of
defendant's involvement and would not in any way rule out that defendant was
the one who shot Mr. Rezem.
Likewise, as Judge Ali explained, even if submission of the DNA profiles
to CODIS revealed the DNA of one of the State's witnesses, Anthony Coppolla,
to be on the entry-point evidence, such a match would not materially undermine
the proofs of defendant's guilt. Both Ms. Rezem's testimony describing
defendant pointing a gun at her immediately after shooting her husband and
Hammed's testimony recounting defendant's admissions to her and connecting
defendant to the murder weapon and handcuffs amounted to overwhelming
evidence of defendant's guilt. Neither the omission of Coppolla's testimony nor
the addition of evidence suggesting Coppolla was one of the three accomplices
involved in the robbery would change the jury's verdict in defendant's trial,
given the other evidence implicating defendant and the fact that defendant's
accomplices were never identified.
A-1403-18T1 15 Any match of the entry-point DNA profiles to an offender in CODIS
would not raise a sufficient question concerning the integrity of the jury verdict
and therefore would not raise a reasonable probability that a motion for a new
trial would be granted based upon the CODIS results constituting newly
discovered evidence.
We find no basis exists to interfere with Judge Ali's denial of defendant's
motion to submit the Cellmark DNA profiles to CODIS. Any of defendant's
arguments not specifically addressed lack sufficient merit to warrant discussi on
in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-1403-18T1 16