STATE OF NEW JERSEY v. ROBERTO SANTOS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3884-02T43884-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERTO SANTOS,

Defendant-Appellant.

____________________________________________________

 

Submitted October 31, 2006 - Decided November 29, 2006

Before Judges Coburn and Gilroy.

On appeal from the Superior Court of New Jersey,

Law Division, Hudson County, I-92-02-0328.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Ruth Bove Carlucci, Assistant

Deputy Public Defender, of counsel and on

the brief).

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent (Susan B. Gyss, Assistant

Prosecutor, on the brief).

PER CURIAM

In this appeal from the denial of post-conviction relief, defendant's only argument is that a remand is required to have the trial judge make findings of fact and determine the issues of law. After carefully reviewing the record and briefs, we are satisfied that defendant's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following comments.

Defendant was convicted in 1995 of weapons offenses and murder, and his conviction was affirmed on direct appeal. Defendant filed for post-conviction relief in 1997. It was denied, and we affirmed the conviction but remanded for a determination of whether post-trial DNA testing was in order. The evidence was found and tested pursuant to a trial court order, and the results were submitted to the court and to the parties. The report stated that no results were obtained from the testing and concluded as follows:

No conclusion can be made regarding the distal bite #1 swabs, the around distal bite #1 swabs, the medial bite #2 swabs, the around medial bite #2 swabs, or the Maria Arroyo oral swab due to an insufficient amount of amplified DNA.

On January 8, 2003, after receipt of the report and correspondence from both sides, the judge wrote the following in a letter to both parties:

The court is in receipt of the DNA analysis report from Cellmark Diagnostics prepared for the above captioned matter, and has had ample opportunity to consider its impact on your client's post-conviction relief motion.

The report states that no conclusions could be drawn from the DNA analysis, as an insufficient amount of amplified DNA existed for testing. This determination completely undermines the basis of the PCR motion, which was predicated on the discovery of exculpatory DNA evidence.

Accordingly, the motion is dismissed. Please advise Mr. Santos of the same.

The order denying post-conviction relief was entered the same day as the judge's letter, and defendant appeals from that order. Since it is clear that the judge did decide the issues in question with findings of fact and conclusions of law, and since there is no claim that those determinations were in error, we reject defendant's argument.

Affirmed.

 

(continued)

(continued)

3

A-3884-02T4

November 29, 2006