STATE OF NEW JERSEY v. JOHN P. VODRAZKA, a/k/a JOHN P VODRASKA, ANTHONY JOHNSON JOHNNY JOHNSON, J VODRASKA ANTHONY VODRASKA, and JOHN VODRASKA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4379-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN P. VODRAZKA, a/k/a JOHN P.

VODRASKA, ANTHONY JOHNSON,

JOHNNY JOHNSON, J. VODRASKA,

ANTHONY VODRASKA, and JOHN VODRASKA.

Defendant-Appellant.

_____________________________________

December 12, 2012

Submitted August 13, 2012 - Decided

Before Judges Sapp-Peterson and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-09-1654.

Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Megan B. Kelly, Assistant Prosecutor, on the brief).

PER CURIAM

On June 30, 2010, defendant pled guilty, as part of a negotiated plea agreement, to first-degree robbery, N.J.S.A. 2C:15-1(a)(2) (Count Two). In exchange, the State agreed to dismiss the remaining six counts of the indictment. The State also agreed to recommend, for sentencing purposes, that the offense be treated as a second-degree crime for which defendant would be sentenced to a five-year custodial term, subject to an eighty-five-percent, No Early Release Act (NERA), N.J.S.A. 2C:43-7.1, period of parole ineligibility, concurrent to any parole violation. Prior to sentencing, however, the court permitted defense counsel to move to dismiss the indictment based upon the statute of limitations.

In seeking dismissal of the indictment, defense counsel argued that the prosecution of the indictment was barred because pursuant to N.J.S.A. 2C:1-6(b)(1), "[a] prosecution for a crime must be commenced within five years after it is committed." The trial court rejected this argument, concluding that N.J.S.A. 2C:1-6(c), rather than N.J.S.A. 2C:1-6(b)(1), was the controlling statutory provision and therefore defendant's prosecution was within that section's time period. We affirm.

The salient facts are not in dispute. The armed robbery for which defendant pled guilty occurred on September 5, 2003. The victims did not immediately report the incident after their assailants fled because the assailants threatened to kill them if they called the police. However, a neighbor, in the early morning hours of the next day, reported to police that she observed two sets of coveralls, one pair of work gloves, and two masks in the rear parking lot of the victims' apartment complex. In addition to the items identified by the witness, police also recovered a gun in one of the coveralls and a kitchen knife in a cellar window. No fingerprints were found on any of the items recovered. The masks were sent to the State Police Lab for DNA testing, and two different genetic profiles were identified. The samples were entered into the Combined DNA Index System ("CODIS").

On April 19, 2007, the State Police Lab notified the Hudson County Prosecutor's Office of a case-to-offender match between the specimen found on one of the masks and defendant's DNA profile. Defendant's brother, Jason, subsequently pled guilty to the robbery and also implicated his brother. He agreed to testify on behalf of the State at his brother's trial, which did not take place in light of defendant's guilty plea.

Prior to the 2003 robbery, defendant was convicted of a drug offense in 1999 and received a five-year custodial sentence, which included a two-year period of parole ineligibility. In 2006, defendant was also convicted of possession of a controlled dangerous substance. At that time, he was ordered to provide a DNA swab.

On appeal, defendant contends the State was in possession of his DNA as early as 1999, following his drug conviction and incarceration, and no later than 2006, following his second drug conviction. As such, because the State was in possession of defendant's DNA for five years and five days prior to August 13, 2008, the date the grand jury indicted defendant for armed robbery and other offenses arising out of this incident, defendant's prosecution is barred pursuant to N.J.S.A. 2C:1-6(b)(1). We disagree.

Prior to its amendment in 2003, N.J.S.A. 53:1-20.20 required only those persons convicted of committing certain sexual offenses, or those persons convicted of murder, manslaughter or second-degree aggravated assault or the attempt to commit these offenses, to have a blood sample drawn for purposes of DNA testing. Following the 2003 amendment, the class of offenders for whom DNA testing is mandated was expanded. As the Legislature expressed: "It is therefore in the best interest of the State of New Jersey to establish a DNA database and a DNA databank containing blood or other biological samples submitted by every person convicted or found not guilty by reason of insanity of a crime." N.J.S.A. 53:1-20.18.

Generally, under N.J.S.A. 2C:1-6(b)(1), a defendant's prosecution must be "commenced within five years after it [was] committed." N.J.S.A. 2C:1-6(c) provides that time, for purposes of calculating when the statute of limitations of criminal prosecutions commences,

starts to run on the day after the offense is committed, except that when the prosecution is supported by physical evidence that identifies the actor by means of DNA testing or fingerprint analysis, time does not start to run until the State is in possession of both the physical evidence and the DNA or fingerprint evidence necessary to establish the identification of the actor by means of comparison to the physical evidence.

Here, the competent, credible evidence before the trial court established that the State was first in possession of the physical evidence and DNA evidence necessary to identify defendant in 2006, when he was ordered, pursuant to his judgment of conviction, to provide a DNA sample. Thus, the time commenced, for purposes of prosecuting defendant for the robbery, at that time.

Defendant's claim to the contrary is both unsupported by the law and the record. In the brief submitted on defendant's behalf, it is claimed that defendant's trial "counsel averred that [defendant] was swabbed for a DNA exemplar in relation to his 1999 conviction. As such, [defendant]'s DNA profile should have been in the state database upon the amendment of N.J.S.A. 53:1-20.20(g), which was effective September 22, 2003, almost two years before the robbery."

Trial counsel's brief, submitted in support of the motion to dismiss the indictment, never "averred" defendant was swabbed for a DNA exemplar in connection with the 1999 conviction. Rather, trial counsel contended defendant claimed he submitted to DNA testing in connection with the 1999 conviction. Beyond this contention set forth in the brief, there was no accompanying certification from defendant attesting to having submitted to DNA testing.

Nor was the motion supported with a copy of the 1999 judgment of conviction evidencing a court order directing that defendant submit to DNA testing. Additionally, addressing the suggestion that upon his re-incarceration for a parole violation, defendant would have or should have been subjected to DNA testing because N.J.S.A. 53:1-20.20(g) had been amended by that time, there are no records presented from the Department of Corrections (DOC) reflecting that defendant was subjected to DNA testing during his period of re-incarceration; and, if such testing did occur, the record is devoid of any evidence of defendant's attempt to secure documentation from the DOC confirming that such testing took place.

Likewise, defendant's reliance upon that portion of the amended statute requiring DNA testing of those persons who are not incarcerated be undertaken at a prison or jail to support the claim that even if not incarcerated at the time the statute was amended, he was required to have been subjected to DNA testing, is misplaced. N.J.S.A. 53:1-20.22 merely designates the locations where the DNA samples are to be taken for persons subject to N.J.S.A. 53:1-20.20, whether confined or not confined. It creates no separate substantive basis for submitting to DNA testing.

The deficiencies in the record defendant presented are so inadequate, a remand for further proceedings is not warranted. When defendant's claims are measured against the undisputed evidence that he was first ordered to undergo DNA testing in connection with his 2006 conviction, we find no error in the trial judge's conclusion that defendant's prosecution was not time-barred.