STATE OF NEW JERSEY v. JOSE SANTOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE SANTOS,

Defendant-Appellant.

________________________________

September 22, 2015

Submitted September 16, 2015 - Decided

Before Judges Sabatino and Accurso.

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

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

JamesP. McClain,Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jose Santos, who was convicted of murder and other offenses at a 1997 jury trial, appeals the trial court's April 10, 2013 order denying his motion seeking DNA testing pursuant to N.J.S.A. 2A:84A-32a. For the reasons that follow, we vacate the trial court's order and remand for further consideration of defendant's application and for a detailed statement of reasons addressing the pertinent statutory factors.

The relevant background is as follows, consistent with this court's 1999 unpublished opinion rejecting defendant's direct appeal from his judgment of conviction and our subsequent 2006 opinion upholding the denial of his petition for post-conviction relief.1 See State v. Santos, No. A-2719-97 (App. Div. June 29), certif. denied, 162 N.J. 198 (1999) and State v. Santos, No. A-1058-04 (App. Div. Feb. 14), certif. denied, 186 N.J. 608 (2006). The indictment charged defendant with murder and other offenses relating to the attack and repeated stabbing of an eighty-one-year-old victim at the victim's apartment in Atlantic City on May 9, 1996. There were no eyewitnesses that saw the stabbing.

The testimony did show that defendant and two friends were in the building after the stabbing and then walked to a flower shop. An employee of the flower shop observed defendant leave the group, bend down to do "something with his sock" and place an object into a dumpster across the street. The dumpster was later searched and a bag was found containing the scissors used to stab the victim as well as bloodstained gloves. Defendant thereafter gave an incriminating statement to the police, which was admitted at his trial.

The jury found defendant guilty of murder, robbery and several other charged offenses. The trial court imposed an aggregate custodial term of life imprisonment plus twenty years, with forty years of parole ineligibility. On direct appeal, we upheld defendant's conviction and the aggregate sentence, although we vacated a ten-year parole disqualifier on the robbery conviction. Santos, supra, A-2719-97 at 5-6.

Defendant subsequently filed a pro se application with the trial court in 2009, pursuant to N.J.S.A. 2A:84A-32a, to have DNA testing performed on a hair found on the back of the victim's index finger as well as on the gloves found in the dumpster. It took several years before the trial court issued a ruling.

On April 10, 2013, without conducting oral argument or an evidentiary hearing, the trial court issued a one-page order denying the motion "because [d]efendant has failed to meet [the] standard set forth in N.J.S.A. 2A:84A-32a." The trial court evidently did not amplify its reasons beyond that conclusory statement.

The Public Defender appointed counsel to represent defendant on the present appeal, who argues that the trial court should have authorized the DNA testing. The State opposes the request, although it does not divulge whether or not the gloves and the hair sample still exist or, if they do, whether they have been contaminated to a degree that such testing would be fruitless.

The applicable statute, N.J.S.A. 2A:84A-32a, was enacted in 2001 in light of the emergence of DNA technology that may provide important additional evidence of guilt or innocence in appropriate instances of criminal cases that have resulted in convictions. The statute delineates eight discrete requirements that a defendant must establish in order to warrant such post-conviction testing

(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 result 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 it was 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).]

See also State v. DeMarco, 387 N.J. Super. 506, 514-22 (App. Div. 2006) (applying the statutory factors and remanding the matter for DNA testing of the biological samples that remained available); State v. Peterson, 364 N.J. Super. 387, 392-99 (App. Div. 2003) (similarly applying the statutory factors and remanding for testing). One of the key factors is number five, i.e., whether there is a "reasonable probability" that a motion for a new trial would be granted if the DNA results proved to be favorable to the defendant. See, e.g., State v. Reldan, 373 N.J. Super. 396, 401-05 (App. Div. 2004) (denying the defendant's request because he failed to show a reasonable probability that favorable DNA test results would have changed the jury's verdict), certif. denied, 182 N.J. 628 (2005).

In the present instance, the trial court failed to address the eight statutory factors within the body of its order. Moreover, the trial court did not apparently issue any written or oral statement of reasons explaining its conclusion that the statutory factors were not met. We cannot cure the omission of such reasons on appeal, nor is it appropriate for us to guess at what the motion judge thought was fatal to defendant's application. See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4, at 100 (2015) (emphasizing that the Rule "requires findings to be made on all motions decided by written orders appealable as of right," and the "critical importance of that function"); see also Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 611-12 (App. Div. 1984).

We are mindful that if the gloves and hair sample no longer exist, defendant's request for DNA testing becomes academic. Nevertheless, defendant is entitled to have the State undertake a reasonably diligent inquiry to determine if one or both samples exist. We do note that defense counsel at trial did attempt to show on cross-examination of the State's investigator that the color of the hair in the sample taken from the victim was lighter than that of defendant's own hair. That particular difference, if it is true, is something that the trial court should take into account in analyzing the various statutory factors.

The trial court's order is consequently vacated and the matter is remanded for reconsideration and a statement of reasons that addresses all of the discrete factors under N.J.S.A. 2A:84A-32a. Counsel shall furnish the trial court promptly with courtesy copies of the appellate briefs and appendix. We defer to the trial court's sound discretion as to whether an evidentiary hearing on remand is warranted. The remand shall be completed within four months of this opinion. We do not retain jurisdiction.

1 The petition dealt with other issues and did not concern a request for DNA testing.