Before Judges Stern, Kestin and Steinberg.
The opinion of the court was delivered by: Stern, P.J.A.D.
Submitted February 24, 2000
On appeal from the Superior Court of New Jersey, Law Division, Union County.
We affirm the order denying "defendant's motion to compel the State to release  evidence" retained by the prosecutor for purposes of post-judgment DNA testing, substantially for the reasons expressed by Judge William L'E. Wertheimer in his oral opinion of October 30, 1998, as supplemented herein.
In this prosecution, tried as a capital case in 1988, the proofs indicated that defendant failed a stipulated polygraph examination and then gave oral and written confessions. Defendant did not testify at trial and asserted an intoxication defense. Defendant was convicted of two counts of felony murder and two counts of aggravated manslaughter by causing the deaths of his girlfriend's young children, and of related offenses including aggravated sexual assault of one of the children.
The trial judge merged the aggravated manslaughter, child abuse (N.J.S.A. 9:6-3) and possession of a weapon for unlawful purpose convictions into the convictions for felony murder, and sentenced defendant to two consecutive sentences of life imprisonment with thirty years before parole eligibility, and to a consecutive sentence of twenty years imprisonment with ten years before parole eligibility for the aggravated sexual assault.
On defendant's direct appeal in 1991 we merged the aggravated sexual assault conviction into one of the felony murders, vacated the merger of the child abuse convictions, *fn1 affirmed the felony murder and child abuse convictions, ordered the imposition of concurrent sentences for the child abuse, and upheld the sentences for felony murder aggregating two life sentences with sixty years before parole eligibility.
Following unsuccessful petitions for certification and post-conviction relief, defendant filed the present application in May 1997 to compel the State "to turn over any DNA evidence or any rape test kit obtained from the victim to defendant's counsel or his designated expert in the area of DNA testing so that DNA testing may be done on it." Defendant sought "to conduct a DNA test of the semen on the victim[']s panties." Although the prosecutor stated at the hearing that he did not know if the requested evidence "necessarily exists, *fn2 he proceeded on the assumption defendant was correct in having asserted in his brief that "the panties . . . are [still] in storage in the Union County Prosecutor's Office." *fn3 The briefs before us do not suggest otherwise.
As defendant does not technically seek post-conviction relief, we do not hold the application for DNA testing was time barred. See R. 3:22-12. Nor do we hold that this case is procedurally barred by the denial of defendant's prior petition for post-conviction relief based on ineffective assistance of counsel for, among other things, not seeking a DNA test. See R. 3:22-4, -5. See also, e.g., Cooper v. United States, 199 F.3d 898, 900-01 (7th Cir. 1999) (counsel cannot be found ineffective for the failure to request DNA testing of a hair sample when any test result would prove nothing material to the trial); La Fevers v. Gibson, 182 F.3d 705, 722 (10th Cir. 1999) (counsel cannot be found ineffective "for failing to request DNA testing" when such a test "would have been frivolous because even favorable DNA test results would not make a difference in this case"). Compare State v. Velez, __ N.J. Super. __ (App. Div. 2000), where defendant's pro se petition for post-conviction relief asserted both a claim of ineffective assistance of trial and appellate counsel and, independently, that "he was entitled to newly developed DNA testing of the semen samples that had yielded inconclusive results respecting their source." Slip op. at 6.
Because defendant asserts that a scientifically improved DNA test might provide evidence which could not have previously been developed and that the test results could therefore support a motion for new trial based on newly-discovered evidence which "may be made at any time," R. 3:20-2, we hold only that this defendant has not shown enough to compel testing of whatever evidence may remain available at this late date. This is particularly true in light of the overwhelming evidence of defendant's participation in the crime and the nature of the defense. Compare State v. Velez, supra, __ N.J. Super. at __; slip. op. at 11, remanding after denial of PCR to consider request for new DNA testing where evidence of DNA testing introduced at trial was inconclusive and "the prosecutor heavily relied upon the inconclusive DNA findings in arguing that the jury could not rule [defendant] out as suspect"; State v. Thomas, 245 N.J. Super. 428, 432-34 (App. Div. 1991), appeal dismissed, 130 N.J. 588 (1992), in which on defendant's direct appeal we ordered that a DNA test be conducted because a request therefor was made before sentencing in a case premised on identification evidence which "was not strong," and reliable DNA evidence had only recently become available and admissible at trial. See also, e.g., the most recent 1999 cases dealing with post-conviction DNA testing, People v. Savory, 722 N.E.2d 220, 224 (Ill. App. Ct. 1999) (defendant is not entitled to obtain DNA testing post-conviction under Illinois statute unless "the scientific testing [has] 'the potential to produce new, non-cumulative evidence materially relevant to the defendant's assertion of actual innocence'"); People v. Dunn, 713 N.E.2d 568, 571-72 (Ill. App. Ct. 1999) (requiring a defendant to present "a prima facie case for such testing" when post-conviction relief petition "is still pending under review"); Jenner v. Dooley, 590 N.W.2d 463, 472 (S.D. 1999) (holding that to be entitled to DNA testing post-conviction, a petitioner must prove that the scientific test is "scientifically reliable" and "admissible" at trial, that "a favorable result using the latest scientific procedures would most likely produce an acquittal in a new trial," and that permitting the testing will not impose "an unreasonable burden on the State").
According to the proofs at defendant's trial, after defendant was told he failed the stipulated polygraph test he started talking "gibberish" and muttered: "work all week, get paid, want to go out, have to baby-sit for the kids, mother goes to bingo, left alone, no time to go out," *fn4 and then said the following while in "a trance-like state":
Talking to Shy, kids making noise, told them to shut off, hung up the phone, told them to shut off, started beating them, Tyrone said he was going to call mommy. Grabbed them both by the throat, stop screaming, started saying, Tyrone, Tina, wake up, they didn't respond. Fuck up, you really fuck up now. Madman. Hid the bodies, bring them downstairs, want speedy trial, needs help, get drunk, act crazy, have to piece things together, losing control, things got bad, committed a violent crime, Margaret please come home, can't come home. What are you all doing? All fucked up. Committed a crime, can't get rid of them, got all fucked up, can't call police.
Thereafter, Miranda warnings were administered and defendant gave the following statement following waiver of his rights:
I hung up the phone and I started beating them. They said, "I am going to call mommy. Mommy will leave you, anyway she don't like you." They were both saying it. Started beating more. I don't know what happened, telling Tina I messed up. I beat them and grabbed them before they ran out of the house. I grabbed them by the ...