On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 83-06-0785.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2011 - Decided
Before Judges Reisner and Sabatino.
Defendant Jorge Iturralde*fn1 , pro se, appeals from a January 11, 2010 order denying his post-conviction motion for DNA testing. We affirm, substantially for the reasons stated by Judge Kracov in his opinion issued on July 11, 2010.
Defendant was convicted of felony murder in 1983.
According to the State's proofs, two masked men, one of whom was later identified as defendant, entered a bar and shot the owner in the course of a robbery. The two men then fled the scene in a car driven by Carlos Cardoza, who later testified against defendant. In addition to Cardoza's testimony, a bystander identified defendant as the shooter. Two days after the robbery, a witness discovered a stocking mask and some tape lying in the gutter of a local street and turned these items over to the police. Several hairs were found clinging to the tape. Non-DNA testing of those hairs revealed they were not a match with either defendant or Cardoza. However, at defendant's trial neither side relied on the hair pulled from the mask.
We affirmed the conviction on defendant's direct appeal. State v. Rodriguez n/k/a Iturralde, No. A-1996-83 (App. Div. June 25, 1985), certif. denied, 102 N.J. 323 (1985). In 2005, defendant filed a petition for post-conviction relief (PCR) based on the hair evidence. That first PCR was denied. On defendant's appeal, we affirmed the denial, concluding that since the items were found in the gutter, the potential for contamination was extremely high. State v. Iturralde, No. A- 2345-05 (App. Div. June 14, 2007).
Defendant then filed a second PCR petition, seeking DNA testing of the mask and the hair. See N.J.S.A. 2A:84A-32a. Judge Kracov denied the motion, concluding that defendant had not presented any legitimate basis justifying DNA testing. He reasoned that, although the State had retained the stocking mask, there was no evidence that it was in a condition that would permit reliable DNA analysis after almost thirty years in unrefrigerated storage. Further, because the mask and tape were found in the gutter two days after the crime, they might have been contaminated with hairs belonging to a third party unconnected with the crime and any DNA materials might have been washed away. Finally, in light of the trial evidence of defendant's guilt, including the testimony of Cardoza and the bystander, the absence of defendant's DNA on the mask would not establish his innocence.
On this appeal, defendant once again contends that he is entitled to DNA testing of the mask. His brief raises the following points for our consideration:
POINT I: THE TRIAL COURT'S MISUNDERSTANDING OF STATE V. PETERSON, CAUSED IT TO APPLY THE WRONG STANDARDS TO THIS PETITION, THEREBY DENYING IT IN VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS AND A FAIR TRIAL.
To justify DNA testing of evidence after conviction, a defendant must satisfy the following statutory standard:
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 ...