On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 01-11-4562.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2008
Before Judges Wefing and Yannotti.
A grand jury returned Indictment No. 01-11-4562 against defendant, charging him with second-degree conspiracy to commit robbery and/or kidnapping, N.J.S.A. 2C:5-2; two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of first-degree kidnapping, N.J.S.A. 2C:13-1b; and one count each of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree terroristic threats, N.J.S.A. 2C:12-3; first-degree carjacking, N.J.S.A. 2C:15-2; second-degree eluding, N.J.S.A. 2C:29-2b; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3e.
Another grand jury returned Indictment No. 02-2-600, charging defendant with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.
In October 2002 defendant entered a negotiated plea of guilty to charges of conspiracy, robbery, carjacking and possession of a weapon for an unlawful purpose in the first indictment and aggravated assault and possession of a weapon for an unlawful purpose in the second indictment. In return, the State agreed to recommend a total custodial sentence not to exceed twenty years, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, to be served consecutively to the five-year sentence, with a three-year period of parole ineligibility, that defendant was then serving.
Defendant appeared before the trial court for sentencing in December 2002. On Indictment 01-11-4562, the trial court merged the conviction for conspiracy and sentenced defendant to separate terms of thirteen years in prison for robbery and for carjacking, both subject to NERA, and to four years in prison for possession of a weapon, all to be served concurrently. On Indictment 02-2-600, the trial court sentenced defendant to five years in prison for aggravated assault, subject to NERA, and a concurrent three years in prison for possession of a weapon for an unlawful purpose. The trial court directed that this sentence be served concurrently with the sentence on Indictment 01-11-4562 and that both be served concurrently to the sentence defendant was then serving. Defendant's aggregate sentence was thirteen years, subject to NERA, well below State's initial recommendation.
Defendant filed an appeal with respect to his sentence under Indictment 01-11-4562, contending it was excessive. His appeal was considered on an Excessive Sentence Oral Argument calendar, and the judgment was affirmed. State v. Nunnally, No. A-2347-03T4 (App. Div. May 24, 2004).
Thereafter, defendant filed a motion pursuant to N.J.S.A. 2A:84A-32a, for post-conviction DNA testing. Defendant sought to have testing performed on the blood-stained shirt he was wearing at the time of his arrest for the crimes charged in 01-11-4562. He argued that if the blood turned out not to be from the victim who had been stabbed in the arm during the incident, it would demonstrate that he was not involved in the crimes. The trial court denied his motions, and defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.
At the time defendant entered his guilty plea, he provided a detailed factual basis.*fn1 At the time he provided this factual basis, he was under oath. He told the court that he and another individual, known to him only as "Rock" were in the vicinity of Martin Luther King Boulevard and Court Street in Newark on the night of May 14, 2001, when they were approached by two women in a car who requested their assistance. The women explained that they had gone to Johnson Avenue to purchase narcotics but had been robbed of their money. Defendant and "Rock" got into the car and the women drove back to the scene, but the perpetrators could not be located. The women drove the two men back to where they had met them, and at that point defendant and Rock grabbed jewelry from them. Rock fled, but defendant forced his way into the car and drove off with the women in the car screaming for help. During the incident, he stabbed one of the women repeatedly in her forearm. He drove for several blocks and then got out of the car and fled on foot. The police apprehended him several blocks away, and the women immediately identified him. At the time of his apprehension and identification, he was wearing a blood-stained shirt. According to the pre-sentence report, the victim of the stabbing required sixteen stitches to close her wounds.
The statute directs that a trial court "shall not grant" a motion for post-conviction DNA testing unless it is satisfied that all of the following elements 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, ...