STATE OF NEW JERSEY VS. JOSE SANTOS (96-09-1980, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3059-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE SANTOS,
a/k/a NELSON NIEVES,

Defendant-Appellant.
_______________________

Submitted September 20, 2021 – Decided October 13, 2021

Before Judges Messano and Accurso.

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 96-09-1980.

Jose Santos, appellant pro se.

Cary Shill, Acting Atlantic County Prosecutor, attorney
for respondent (Mario C. Formica, Special Deputy
Attorney General/Acting Deputy First Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 In 1997, a jury convicted defendant Jose Santos of murder, robbery and

related offenses, and the court sentenced defendant to life imprisonment plus a

consecutive term of twenty years, with a total of forty years of parole

ineligibility. We affirmed the convictions, remanding only to resentence

defendant on his first-degree robbery conviction to eliminate the ten-year parole

disqualifier. State v. Santos, No. A-2719-97 (App. Div. June 29, 1999). We

subsequently affirmed denial of defendant's petition for post-conviction relief.

State v. Santos, No. A-1058-04 (App. Div. Feb. 14, 2006).

In 2009, defendant filed a pro se application to have DNA testing

"performed on a hair found on the back of the victim's index finger" and "blood-

stained gloves" found in a dumpster where the murder weapons, a knife and a

pair of scissors, were found. State v. Santos, No. A-4554-12 (App. Div. Sept.

22, 2015) (slip op. at 2–3). Without conducting oral argument or an evidentiary

hearing, the judge denied the request in a one-page order that simply provided

defendant "failed to meet [the] standard set forth in N.J.S.A. 2A:84A-32a." Id.

at 3 (alteration in original).

Defendant again appealed, and we concluded the judge "failed to address

the eight statutory factors within the body of its order" and failed to "issue any

written or oral statement of reasons explaining its conclusion that the statutory

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factors were not met." Id. at 6. Not knowing whether the hair and gloves still

existed, we said that defendant was "entitled to have the State undertake a

reasonably diligent inquiry to determine if one or both samples exist." Ibid. We

vacated the order and "remanded for reconsideration and a statement of reasons

that addresse[d] all of the discrete factors under N.J.S.A. 2A:84A-32a." Id. at

7. We left "to the trial court's sound discretion . . . whether an evidentiary

hearing on remand [was] warranted." Ibid.

The State located the hair and gloves, as well as additional evidence from

the trial, including a DNA sample from the victim, clippings from his

fingernails, and the knife and scissors recovered from the dumpster. Defendant

provided a sample of his hair and a buccal swab for comparison. The New Jersey

State Police Laboratory (NJSP Lab) conducted a DNA analysis of these items in

2016 and furnished a report. 1

Defendant was excluded as a contributor to most of the blood samples

from the gloves, although two samples contained a "[m]ixture of DNA profiles

consistent with at least three contributors." The victim was the major

1
Apparently, neither defendant nor the State recognized that all the hair samples
submitted for analysis in 1996 were deemed to have come from an animal or
otherwise be "not useful for comparison." As a result, the NJSP Lab did not
perform a DNA analysis on any hair samples.
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contributor of DNA from the other blood samples, as well as those from the

knife and scissors. However, defendant's DNA profile was identified on the

victim's fingernail clippings; the report stated that DNA profile occurred in

approximately "1 in 29.8 billion of the Hispanic population."

The judge conducting our remand entered an order on December 19, 2016.

He determined no evidentiary hearing was "warranted" and our decision was

"now rendered MOOT, as DNA testing has been completed, albeit, with adverse

results for defendant."

In 2019, defendant filed a pro se motion for a new trial premised on the

results of the DNA testing. A different judge, Judge Jeffrey J. Waldman, denied

the motion, stating his reasons in a comprehensive written opinion. This appeal

followed.

Defendant argues that based on the DNA testing, Judge Waldman should

have vacated his conviction and granted him a new trial. We disagree and

affirm.

"Rule 3:20-1 and -2 provide a mechanism for seeking a new trial following

a criminal conviction." State v. Armour, 446 N.J. Super. 295, 305 (App. Div.

2016). The motion may be granted "if required in the interest of justice[,]"

pursuant to Rule 3:20-1, and, if "based on the ground of newly-discovered

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evidence," the motion "may be made at any time." R. 3:20-2. Even when

premised on the ground of newly discovered evidence, "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." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000) (State v.

Artis, 36 N.J. 538, 541 (1962)).

A defendant is entitled to a new trial based on newly discovered evidence

if the evidence is "(1) material to the issue and not merely cumulative or

impeaching or contradictory; (2) discovered since the trial and not discoverable

by reasonable diligence beforehand; and (3) of the sort that would probably

change the jury's verdict if a new trial were granted." State v. Szemple, 247 N.J.

82, 99 (2021) (quoting State v. Nash, 212 N.J. 518, 549 (2013)). "[A]ll three

prongs of that test must be satisfied before a defendant will gain the relief of a

new trial." State v. Ways, 180 N.J. 171, 187 (2004) (citing State v. Carter, 85

N.J. 300, 314 (1981)). "The defendant has the burden to establish each prong is

met." State v. Fortin, 464 N.J. Super. 193, 216 (App. Div. 2020) (quoting State

v. Smith, 29 N.J. 561, 573 (1959)).

"[P]rongs one and three are inextricably intertwined." Nash, 212 N.J. at

549. "'[E]vidence [that] would shake the very foundation of the State's case and

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almost certainly alter the earlier jury verdict' could not be categorized as 'merely

cumulative.'" Ibid. (quoting Ways, 180 N.J. at 189 (second alteration in

original)). "The power of the newly discovered evidence to alter the verdict is

the central issue, not the label to be placed on that evidence." Id. at 549–50

(quoting Ways, 180 N.J. at 191–92). We have said that when the new trial

motion is based upon post-verdict testing of trial evidence, "even the most

favorable retesting outcome . . . must be weighed against the compelling proofs

presented by the State." Armour, 446 N.J. Super. at 313 (citations omitted); see

also State v. Reldan, 373 N.J. Super. 396, 401–05 (App. Div. 2004) (affirming

denial of the defendant’s request for DNA testing because he failed to show a

reasonable probability that any favorable DNA evidence would have changed

the jury’s verdict).

Defendant contends that the DNA testing of the gloves, knife, and

scissors, which did not indicate the presence of his DNA, merited the grant of a

new trial. However, Judge Waldman correctly concluded the lack of defendant's

DNA on those items "ha[d] no probative value as it d[id] nothing to negate

[defendant's] involvement in the crime." Moreover, the positive match of

defendant's DNA to the victim's fingernail clippings yielded significant

additional inculpatory evidence if it were introduced at the time of trial.

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 Defendant explains this forensic finding by noting evidence at trial

revealed that he and a friend discovered the victim and tried to resuscitate him. 2

However, the State produced overwhelming evidence of defendant's guilt at

trial, including his confession, which defendant repeatedly contends now, as he

has in the past, was "coerced." Defendant, for example, made the same claim

when he testified before the jury, which obviously rejected the contention.

Furthermore, as Judge Waldman wrote:

Additionally, [defendant's] confession was
corroborated by other evidence presented at trial. The
murder weapons were found in the dumpster where
[defendant] said he had placed them; a mattress in the
victim’s home was moved as [defendant] said he moved
it; and the victim’s pants pockets were turned inside out
with all money removed, corroborating [defendant's]
confession of stealing [eighty-seven dollars] from the
victim. Further, [defendant's] fingerprint was found on
the bag containing the alleged murder weapons, and an
eyewitness did see [defendant] put something in the
dumpster where the murder weapon was found shortly
after the victim’s death. Therefore, even if the absence
of [defendant's] DNA on some of the evidence were
presented at trial, it would not have altered the outcome
of the jury’s verdict.

For the foregoing reasons, [defendant's] motion
fails to meet the criteria for newly discovered evidence
warranting a new trial.

2
Judge Waldman mistakenly wrote that there was no evidence at trial
supporting defendant's explanation.
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We fully concur with this reasoning. To the extent we have not specifically

addressed any other arguments raised by defendant, they lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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