Vanessa Potkin of the New York bar, admitted pro hac vice, argued the cause for appellant (Rutgers University Law School Urban Legal Clinic, attorneys; Ms. Potkin and Marcia Levy, on the brief). Kristen M. Harberg, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Ms. Harberg, of counsel and on the brief).
Before Judges Skillman, Coburn and Wells.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 23, 2003
In 2002, the Legislature enacted a statute which provides that a person convicted of a crime who is currently serving a term of imprisonment may obtain DNA testing of evidence probative of guilt or innocence. L. 2001, c. 377; N.J.S.A. 2A:84A-32a. This appeal requires us to interpret two of the conditions a convicted person must establish to obtain such DNA testing -- that"the identity of the defendant was a significant issue in the case," N.J.S.A. 2A:84A-32a(d)(3), and that"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," N.J.S.A. 2A:84A-32a(d)(5).
In March 1989, a jury found defendant guilty of felony murder, in violation of N.J.S.A. 2C:11-3a(3), and four counts of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(3) and (6). The trial court sentenced defendant to life imprisonment, with thirty years of parole ineligibility, for felony murder, and a consecutive twenty-year term, with ten years of parole ineligibility, for one count of aggravated sexual assault. The court merged defendant's other convictions.
We affirmed defendant's convictions and sentence in an unreported opinion, State v. Peterson, A-3034-89T4 (Nov. 30, 1992), and the Supreme Court denied his petition for certification, 133 N.J. 433 (1993).
In September 1994, defendant filed a petition for post-conviction relief which sought, among other things, an order for DNA testing of evidence the State had introduced at trial. The trial court denied defendant's petition. We affirmed that denial in an unreported opinion, State v. Peterson, A-1072-98T4 (Nov. 13, 2000), and the Supreme Court again denied certification, 167 N.J. 634 (2001).
In November 2001, defendant brought an action in federal district court under the Civil Rights Act (42 U.S.C.A. § 1983) seeking DNA testing of evidence introduced at his trial. On June 28, 2002, the district court temporarily stayed proceedings pending defendant's application for relief under N.J.S.A. 2A:84-32a in state court.
Defendant then filed a motion in the trial court to obtain DNA testing of the evidence found at the crime scene that had been introduced at trial. After hearing argument by counsel, the trial court concluded that defendant had not established all the conditions for post-conviction DNA testing prescribed by N.J.S.A. 2A:84A-32a, specifically the requirements that identity must have been a"significant issue" at trial, N.J.S.A. 2A:84A-32a(d)(3), and that if the DNA test results were"favorable" to defendant, there would be a"reasonable probability" a motion for new trial would be granted, N.J.S.A. 2A:84A-32a(d)(5).
Accordingly, the court entered an order denying defendant's motion, from which this appeal has been taken.
We conclude that identity was a significant issue at defendant's trial and that there is a reasonable probability a motion for new trial would be granted if the results of DNA testing were favorable. Therefore, we reverse the order denying DNA testing and remand to the trial court.
The murder and aggravated sexual assaults for which defendant stands convicted were committed sometime in the early morning hours of August 24, 1987. The victim's body, which was partially nude, was found later that day in a field near an apartment complex in Pemberton Township. An eight-inch-long stick, which had been inserted in the right side of the victim's mouth, protruded through her throat to form a bulge in the back of her neck. Another two-inch-long stick was discovered broken off inside the victim's vagina. The police also found sticks near the body which had strands of the victim's hair attached to them. In addition, the police found blood under the victim's fingernails, semen on the outside of her pants and various hair samples on her body.
After a lengthy investigation, the State charged defendant with the crime. At trial, the State presented strong evidence of defendant's guilt. This evidence included testimony by three persons with whom defendant allegedly rode to work the morning of the murder, who said that defendant described the crime to them in lurid detail only a few hours after it was committed, before the police had released any detailed information to the public. The State also presented the testimony of an inmate in the jail where defendant was incarcerated before trial, to whom defendant allegedly made statements admitting he had committed the crime. In addition, the State presented evidence that shortly after the murder, defendant had ...