State of New Jersey v. Rodney Armour

NOT FOR PUBLICATION WITHOUT THE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