STATE OF NEW JERSEY v. PETER PAPASAVVAS

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PETER PAPASAVVAS,

Defendant-Appellant.

______________________________

October 27, 2016

Submitted October 17, 2016 Decided

Before Judges Nugent and Haas.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 96-06-0823.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Peter Papasavvas appeals from a June 2, 2014 order denying his motion for post-conviction DNA testing. We affirm.

This case has a lengthy procedural history. During a 1998 trial, a jury convicted defendant of capital murder, N.J.S.A. 2C:11-3(a)(1); felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree burglary, N.J.S.A. 2C:18-2; second-degree robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20-3; fourth-degree unlawful theft or receipt of a credit card, N.J.S.A. 2C:21-6(c); and the lesser-included offense of aggravated criminal sexual contact, N.J.S.A. 2C:14-3(b). In its opinion affirming defendant's convictions and death sentence, the Supreme Court described the murder's commission

On April 25, 1996, defendant broke into the home of Mildred Place who lived alone at 11 West Henry Place in Iselin. She was then age sixty-four. Defendant was fleeing from the police, who had come to his nearby home in order to question him about an unrelated matter. He and the other members of his family were in a distraught state because a brother of defendant had attempted suicide. In his hurry, defendant left dressed only in his underclothing. He hid in the basement of the victim's house, which is located four blocks from Papasavvas's residence. When Mrs. Place came home, he did not at first confront her. She spoke on the telephone at about 10:00 p.m. with a friend. The conversation lasted about fifteen minutes.

Some time thereafter, the fatal encounter took place. Because there were no witnesses to the attack, there was no direct evidence of the precise manner in which the death occurred. There was evidence of bizarre and repulsive conduct by defendant such as "very straight [scissor] cuts" of her clothing, leaving exposed her private parts. This cutting was concededly done when the victim was motionless.

The State infers that Papasavvas attacked Mrs. Place so that he could escape capture by preventing her from calling the police. Whatever may have been his motive, defendant left a trail of incriminating evidence. At 11:15 p.m., he called his home, leaving a record of that call on Mrs. Place's telephone bill. He stole her car and partied in New York with a girlfriend, using Mrs. Place's credit cards.

[State v. Papasavvas, 163 N.J.565, 578 (2000).]

The Supreme Court also recounted defendant's version of the murder, as related in psychiatric testimony

According to defendant, he planned to hide in the basement until Mrs. Place went to bed, when he planned to leave the home quietly. Mrs. Place foiled those plans when she opened the basement door and found defendant, who was still wearing only his underwear. Attempting to escape without allowing her to inform anyone that he had broken into her home but without severely injuring her, defendant put his hands around her neck, in what he described as a "sleeper hold," in order to induce unconsciousness. After the sleeper hold caused her to pass out, Mrs. Place fell down the cellar stairs. While falling down the stairs, Mrs. Place broke her neck, a severe injury that may have caused her death.

[Id. at 579-80.]

Thereafter, the Court issued a correction to its opinion

IT IS ORDERED that in respect of the majority opinion, the following paragraph is to be substituted for the last paragraph on page 579, 163 N.J. 565

Believing that Mrs. Place was feigning death when she remained motionless, defendant, hoping to frighten her into getting up, threatened to sexually assault her if she did not comply. Sexual contact was evidenced by sperm found on Mrs. Place's body during the autopsy. A tan belt retrieved from Mrs. Place's raincoat, which the State medical examiner referred to as a ligature, impeded Mrs. Place's breathing because it pushed her tongue to the side.

[State v. Papasavvas, 164 N.J. 553 (2000).]

Although the Court affirmed defendant's convictions and death sentence, in a subsequent opinion the Court vacated the death sentence following a proportionality review. State v. Papasavvas, 170 N.J. 462 (2002). Defendant was resentenced to life imprisonment with thirty years of parole ineligibility for murder, consecutive to an extended twenty-year term with ten years of parole ineligibility for burglary, and concurrent to the custodial terms on the remaining offenses that had not been merged.

In 2003, defendant filed a petition for post-conviction relief in which he alleged his trial counsel was ineffective for the following reasons

(1) trial counsel misstated in opening statement that defendant tied a belt around the victim's mouth; (2) trial counsel failed to produce the results of a polygraph test; (3) trial counsel did not establish that the police planted evidence of his semen on the victim's body by getting it from a condom they found in the trash can in his apartment; and (4) trial counsel failed to interview the victim's neighbor to prove that the body was not found in the condition described by the police.

[State v. Papasavvas, No. A-6302-03 (App. Div. Mar. 21, 2006) (slip op. at 3-4), certif. denied, 186 N.J. 608 (2006).]

In our opinion affirming the trial court's denial of defendant's PCR petition, we noted "[h]is trial attorney was faced with overwhelming evidence not only that the defendant murdered the victim, but also that he did so in a particularly heinous and cruel manner." Id. (slip op. at 5). We concluded that "[b]y focusing upon the issues of purpose or intent and producing psychiatric testimony, trial counsel's objective obviously was to avoid a conviction for capital murder. While these efforts were not successful at trial, counsel hardly can be faulted for this strategy." Ibid.

In June 2013, defendant sought the Middlesex County Prosecutor's consent to have two ligatures, belts that had been tied around the victim's face, tested for DNA. The Prosecutor refused to consent to the testing. Accordingly, in January 2010, defendant filed the motion for post-conviction DNA testing, which is the subject of this appeal. Defendant sought relief under N.J.S.A. 2A:84A-32a, which provides in pertinent part

d. The court shall not grant the motion for DNA testing unless, after conducting a hearing, it determines that all of the following have been established

(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;

(4) the convicted person has made a prima facie showing that the evidence sought to be tested is material to the issue of the convicted person's identity as the offender;

(5) the requested DNA testing 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 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).]

Following briefing and oral argument, Judge Diane Pincus issued a comprehensive written opinion and denied defendant's application. Judge Pincus determined, among other things, defendant's identity was not a significant issue at trial, N.J.S.A. 2A:84A-32a(d)(3); defendant had failed to establish a prima facie showing the belts he sought to have tested were material to his identity as the perpetrator, N.J.S.A. 2A:84A-32a(d)(4); and the requested DNA testing would not raise a reasonable probability that if the results were favorable to defendant, a motion for a new trial based upon newly discovered evidence would be granted, N.J.S.A. 2A:84A-32a(d)(5). This appeal followed.

On appeal, defendant argues

POINT ONE

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. DEFENDANT PRESENTED A PRIMA FACIE CASE THAT HIS IDENTITY WAS A SIGNIFICANT ISSUE AT THE TIME OF TRIAL.

B. DEFENDANT PRESENTED A PRIMA FACIE CASE THAT THE EVIDENCE TO BE TESTED WAS MATERIAL TO THE ISSUE OF HIS IDENTITY AS THE OFFENDER.

C. DEFENDANT PRESENTED A PRIMA FACIE CASE THAT THE DNA TESTING, IF THE RESULTS WERE FAVORABLE TO THE DEFENDANT, WOULD RESULT IN A MOTION FOR A NEW TRIAL BEING GRANTED.

In his supplemental pro se brief, defendant argues

POINT ONE

GIVEN THE CIRCUMSTANCES OF THE DEFENDANT'S CASE, HE HAS ESTABLISHED THE CONDITIONS FOR THE PERFORMANCE OF FORENSIC DNA TESTING OF THE BELT LIGATURES AS SET FORTH IN N.J.S.A. 2A:84A-32A ET SEQ., AND THEREFORE, IS ENTITLED TO SUCH TESTING AS A MATTER OF LAW.

A. TIME OF DEATH SUPPORTS DNA TESTING.

B. BELTS WERE TIED PRE-MORTEM AND CONTRIBUTED TO THE DEATH.

C. SERIAL KILLER, NOT DEFENDANT, WAS SOUGHT IN THE AREA ON THE MORNING OF THE MURDER.

D. PAPASAVVAS ALWAYS ADAMANTLY MAINTAINED HE DID NOT TIE THE BELTS ON THE VICTIM.

E. OBJECTIVES OF N.J.S.A. 2A:84A-32A.

F. EACH CRITERIA OF N.J.S.A. 2A:84A-32A(1)(D) HAS BEEN MET.

G. DEFENDANT AND THE STATE AGREE ON PERTINENT FACTORS.

H. POST-CONVICTION DNA TESTING HAS LED TO NUMEROUS EXONERATIONS.

I. DEFENDANT WILL PAY FOR DNA TESTING.

J. THE LOWER COURT ABUSED ITS DISCRETION.

We affirm, substantially for the reasons given by Judge Pincus in her thorough and thoughtful opinion. Judge Pincus carefully considered each of defendant's arguments, properly analyzed them under N.J.S.A. 2A:84A-32a and applicable precedent, and provided cogent explanations for her conclusions. We discern nothing in the record suggesting Judge Pincus misapplied her discretion. State v. Armour, 446 N.J. Super. 295, 306 n.4 (App. Div. 2016). Defendant's arguments to the contrary, as well as the remaining arguments in his brief and supplemental brief, are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.