NOT FOR PUBLICATION WITHOUT THE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-1831-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARWIN RODRIGUEZ-FERREIRA,
Defendant-Appellant.
__________________________
Argued June 6, 2017 — Decided July 20, 2017
Before Judges Koblitz and Sumners.
On appeal from the Superior Court of
New Jersey, Law Division, Hudson County
Indictment No. 10-10-1807.
Charles Alvarez argued the cause for appellant
(Peter R. Willis, L.L.P., attorneys; Peter R.
Willis, on the brief).
Stephanie Davis Elson, Hudson County Assistant
Prosecutor, argued the cause for respondent
(Esther Suarez, Hudson County Prosecutor,
attorney; Ms. Elson, of counsel and on the
brief).
PER CURIAM
Defendant Darwin Rodriguez-Ferreira appeals from an October
26, 2015 order denying post-conviction relief (PCR) without an
evidentiary hearing. He argues trial counsel was ineffective in
not requesting a hearing to challenge the scientific reliability
of certain DNA evidence presented by the forensic unit of New York
City's Office of the Chief Medical Examiner (NYOCME). We agree
that the evidence was sufficiently novel to raise the question of
why defense counsel did not request a pre-trial N.J.R.E. 104 Frye1
hearing and reverse and remand for an evidentiary hearing.
The trial revealed the following facts. On August 16, 2008,
at approximately 5:00 a.m., Mark Kendall left his home in Jersey
City to buy cigarettes. About thirty minutes later, Kendall's
neighbor was awoken by people arguing loudly and heard someone
say, "What you doing?" A few minutes after the commotion ended,
she peered out the window of her second-floor apartment onto the
street and saw one person lying motionless on the ground and the
shadow of a second person quickly walking across the street into
Pershing Field Park.
Kendall died in the street from multiple stab wounds. The
police investigation discovered a pair of "Nike" sandals, one in
front of Kendall's residence and another in Pershing Field.
Kendall's cell-phone was found on his person.
The police found an exchange of calls between Kendall and an
1
Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
2 A-1831-15T1
individual named "Darwin" that occurred within forty minutes of
the time Kendall was discovered wounded on the ground. Two numbers
for a "Darwin" were stored on Kendall's cell-phone contact list.
"Darwin's" number was registered to defendant's mother, with whom
defendant lived in Jersey City, a few blocks from the murder scene.
Two blocks from the scene, a bloody twelve-inch knife wrapped in
boxer shorts was found. About eight hours after Kendall was
attacked, the police discovered bloodstains on the floor of
defendant's home. The day after Kendall was killed, defendant
flew out of the country on a one-way ticket.
DNA testing of the blood on the knife, the right foot Nike
sandal, and the blood stain swabs taken from defendant's mother's
home matched Kendall's DNA profile. One of the tested bloodstain
samples from defendant's home had a mixture of DNA. "Kendall
[was] identified as the source of the major DNA profile obtained."
The minor DNA in this bloodstain sample was not attributable to
defendant.
With respect to the DNA results of the boxer shorts wrapped
around the knife, a NYOCME criminalist testified that she conducted
a "Low Copy Number" DNA test, which is conducted when the DNA
sample has a lower starting amount of DNA and "typically that's
going to be on a touched object." The criminalist explained that
she "scraped the inside waistband . . . looking for skin cells[,]"
3 A-1831-15T1
to determine its "wearer." Upon testing the skin cells, she was
able to develop a DNA profile, and concluded that defendant's DNA
profile matched as "the major contributor . . . to the sample
taken from the scrapings of the boxer shorts." Also, she tested
a blood sample from the boxer shorts, and testified it "was a
mixture of DNA from [Kendall and defendant]." She opined that
"[s]ince [she] was able to determine that there was DNA present
on the inner scrapings of the boxer shorts . . . it's possible
that [defendant] wore those boxer shorts[,]" or "[defendant] could
have just touched them or come in contact with them."
On June 3, 2011, the jury returned a verdict convicting
defendant of knowing and purposeful murder, N.J.S.A. 2C:11-3(a)(1)
and (2), fourth-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(d), and third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d). Defendant was sentenced to a thirty-
year term with a thirty-year parole disqualifier on the murder
conviction, and to a consecutive eighteen-month term on the
unlawful possession of a weapon conviction. The count for
possession of a weapon for an unlawful purpose was merged into the
count for murder.
We affirmed defendant's direct appeal, and remanded to the
trial court to articulate its reasons for imposing the consecutive
sentence. State v. Rodriguez-Ferreira, A-0855-11 (App. Div. May
4 A-1831-15T1
7), (slip op. at 7-8), certif. denied, 220 N.J. 43 (2014).
Defendant contended in his PCR petition that trial counsel
was ineffective because of counsel's failure to request a Frye
hearing challenging the testimony of the NYOCME criminalist
regarding the Low Copy Number DNA test results linking the boxer
shorts that wrapped the murder weapon to defendant.
The PCR court, which had also conducted the trial, denied
defendant's PCR petition, finding defendant was not entitled to
an evidentiary hearing because he failed to establish a prima
facie case of ineffective assistance of counsel under the test set
forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct.
2052, 2068, 80 L. Ed. 2d 674, 698 (1984).
The court noted: "Even if trial counsel was deficient with
respect to his failure to request a Frye hearing . . . . [defendant]
has failed under prong two of Strickland, which requires a showing
that 'the deficient performance prejudiced the defense.'" The
court stated: "[Defendant] would have needed to show that had
trial counsel requested a Frye hearing, the Low Copy Number DNA
testing evidence would have been inadmissible, thereby leading to
[defendant's] acquittal."
On appeal defendant raised the following points:
POINT I: THE PCR COURT SHOULD HAVE GRANTED
THE DEFENDANT A FRYE HEARING BECAUSE TRIAL
COUNSEL'S FAILURE TO CHALLENGE THE
ADMISSIBILITY OF THE DNA TEST RESULTS OBTAINED
5 A-1831-15T1
WITH A METHOD ONLY PERFORMED IN NEW YORK
CONSTITUTED INEFFECTIVE ASSISTANCE OF
COUNSEL. AT MINIMUM, DEFENDANT'S CLAIM OF
INEFFECTIVE ASSISTANCE OF COUNSEL SHOULD NOT
HAVE BEEN DISMISSED WITHOUT AN EVIDENTIARY
HEARING.
a. High Sensitivity Analysis, also known as Low Copy
Number Testing
b. Trial Counsel's performance fell below an objective
standard of reasonableness
c. Standard DNA Analysis
d. Standard DNA Testing
e. Science behind Low Copy Number testing
f. Requirements for the Admission of Expert Testimony
g. Low copy number testing does not have general
acceptance in the pertinent scientific community
h. This Court has Ordered Similar Hearings When
Considering the Admissibility of Scientific Evidence
in Criminal Cases
To prevail on PCR, a defendant must "identify specific acts
or omissions that are outside the 'wide range of reasonable
professional assistance' and . . . show prejudice by demonstrating
'a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.'"
State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland, supra,
466 U.S. at 689, 694, 104 S. Ct. at 2065, 2068, 80 L. Ed. 2d at
694, 698). An evidentiary hearing is needed where the defendant
comes forward with facts that would, if believed, make a prima
facie showing of both deficient performance and resulting
prejudice. State v. Preciose, 129 N.J. 451, 462-63 (1992).
"[I]n order to establish a prima facie claim, a petitioner
must do more than make bald assertions that he was denied the
6 A-1831-15T1
effective assistance of counsel. He must allege facts sufficient
to demonstrate counsel's alleged substandard performance." State
v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied,
162 N.J. 199 (1999).
"As a general principle, 'counsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.'" State v. Difrisco,
174 N.J. 195, 223 (2002) (quoting State v. Martini, 160 N.J. 248,
266 (1999)). When claiming defense counsel inadequately
investigated, the defendant "must assert the facts that an
investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant
or the person making the certification." Cummings, supra, 321
N.J. Super. at 170 (citing R. 1:6-6).
The mere raising of a claim for PCR does not entitle a
defendant to an evidentiary hearing. Ibid. "A petitioner must
establish the right to such relief by a preponderance of the
credible evidence." Preciose, supra, 129 N.J. at 459.
When determining whether to grant an evidentiary hearing, the
PCR court must consider the facts in the light most favorable to
the defendant. Id. at 462-63. A hearing should be conducted if
there are disputed material facts. State v. Porter, 216 N.J. 343,
354 (2013) (quoting Rule 3:22-10(b)).
7 A-1831-15T1
Defendant relied on a comprehensive New York trial court
decision, New York v. Collins, 15 N.Y.S. 3d 564, 570-76, 587 (N.Y.
Sup. Ct. 2015), rendered a few months before this PCR decision,
where the New York court found Low Copy Number DNA testing
inadmissible after a lengthy Frye hearing. Defendant also pointed
to scholarly articles published in the scientific community
raising concerns about Low Copy Number DNA testing. Other New
York courts, before the 2015 Collins decision, have admitted Low
Copy Number DNA. See New York v. Megnath, 898 N.Y.S. 2d 408, 415
(N.Y. Sup. Ct. 2010) (admitting the evidence after a Frye hearing);
see also New York v. Garcia, 963 N.Y.S. 2d 517, 523 (N.Y. Sup. Ct.
2013) (admitting the evidence without a Frye hearing).
No reported New Jersey case has found Low Copy Number DNA
results admissible in court. At the PCR hearing on remand, defense
counsel should explain what efforts were made to investigate this
form of DNA testing and why no Frye hearing was requested. If
this explanation is unsatisfactory, the court should then hold a
Frye hearing to determine whether the evidence is admissible given
today's scientific knowledge. The Low Copy DNA results were
damning evidence linking defendant to the bloody knife found two
blocks from the scene of the murder. If the evidence is not deemed
admissible, defendant is entitled to a new trial.
8 A-1831-15T1
Reversed and remanded for a plenary PCR hearing. We do not
retain jurisdiction.
9 A-1831-15T1
STATE OF NEW JERSEY VS. DARWIN RODRIGUEZ-FERREIRA (10-10-1807, HUDSON COUNTY AND STATEWIDE)
Combined Opinion