July 31, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DONALD PRATOLA, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. SGJ-2-80.
Joseph E. Krakora, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).
Before Judges Yannotti and Hoffman.
Defendant appeals from the January 14, 2011 Law Division order denying his application for post-conviction relief (PCR). We affirm.
In 1981, defendant was convicted of murder, attempted robbery and related charges. Defendant appealed and we affirmed. State v. Pratola, No. A-4570-80 (App. Div. Oct. 21, 1982). Over the span of more than three decades, defendant has repeatedly attempted to set his conviction aside. The underlying facts of this case have been discussed on multiple occasions and need not be repeated here. In a 1999 opinion in defendant's appeal from an order denying his motion for a new trial and petition for PCR, we summarized the lengthy procedural history of this case:
[B]etween 1982 and 1988, defendant made numerous attempts in state and federal courts to overturn his conviction, but was unsuccessful.
In 1990, defendant filed pro se another motion for a new trial. This motion was supplemented and expanded by defense counsel. After a four-day hearing, the judge granted the motion and ordered a new trial. However, we reversed and reinstated defendant's conviction. State v. Pratola, No. A-181-93 (App. Div. March 24, 1994). Thereafter, defendant unsuccessfully sought federal habeas corpus relief again. In January 1996 and October 1996, defendant moved again for a new trial alleging newly discovered evidence. These motions were denied by Judge Betty J. Lester
Defendant filed yet another motion for a new trial alleging newly discovered evidence. He also moved for reconsideration of the denial of his motion alleging ineffective assistance of counsel. . . .
. . . .
The latest motion for a new trial was denied.
[State v. Pratola, No. A-4214-97 (App. Div. Dec. 23, 1999) (slip op. at 2-3).]
In his most recent attempt to overturn his conviction, defendant moved before the Law Division (1) for a new trial based on allegedly newly discovered exculpatory evidence that he claimed was not made known to him by his trial attorney; and (2) for dismissal of the indictment because the murder weapon is no longer available for DNA testing. Following oral argument, the motion judge issued an oral decision denying defendant's motions.
On appeal, defendant raises the following points for our consideration:
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY BECAUSE OF HIS FAILURE TO USE THE EVIDENCE THAT WAS IN HIS POSSESSION AT THE TIME OF THE TRIAL BUT NOT DISCLOSED TO THE DEFENDANT AT THE TIME OF THE TRIAL.
DEFENDANT'S CONVICTION SHOULD BE VACATED AND A NEW TRIAL ORDERED BECAUSE OF EVIDENCE THAT WAS WITHHELD FROM DEFENDANT AND NOT AVAILABLE TO HIM AT THE TRIAL.
DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED.
DEFENDANT'S CONVICTION SHOULD BE VACATED AND THE INDICTMENT SHOULD BE DISMISSED BECAUSE THE STATE FAILED TO PRESERVE OR RETAIN THE MURDER WEAPON SO THAT IT COULD BE TESTED FOR DNA EVIDENCE.
THE INTERESTS OF JUSTICE REQUIRE THAT DEFENDANT'S PETITION NOT BE TIME BARRED BY Rule 3:22-12(a).
Rule 3:22-4 DOES NOT BAR DEFENDANT FROM ALLEGING INEFFECTIVE ASSISTANCE OF COUNSEL IN THIS MOTION.
We have carefully reviewed the record and conclude that defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Robert H. Gardner in his oral opinion of January 14, 2011. We briefly add the following comments.
We first note that we agree with the motion judge that defendant's claims are procedurally barred under both Rule 3:22-12(a) and Rule 3:22-4. Defendant's motions are time-barred by Rule 3:22-12(a), as they were filed far beyond the five-year limitation period provided in the rule. Defendant has not shown that his failure to previously raise the issues was due to excusable neglect, or that the refusal to entertain the issues would result in a fundamental injustice.
Defendant's motions are also barred by Rule 3:22-4 because the issues could have been raised in prior proceedings in this case. In his three prior petitions for PCR, defendant never raised the issues that he raised in the motions subject to appeal. Defendant could have discovered the factual basis for his claims if he had exercised reasonable diligence.
Even if defendant's motions were not procedurally barred, we agree with the motion judge that defendant's claims lack substantive merit. Defendant contends that in 2010, he was provided with exculpatory documentary evidence obtained from discovery materials from the original trial, which allegedly raises doubt that he was the person who murdered the victim during the robbery. According to defendant, he received ineffective assistance of counsel due to his attorney's failure to disclose this information to him and failure to use it at trial. We disagree.
Defendant is Caucasian. The subject discovery materials included statements provided to the police indicating that three males —— either black or Hispanic —— were seen running from the crime scene. However, there was an abundance of incriminating evidence adduced at trial such that this evidence is not exculpatory. See State v. Fritz, 105 N.J. 42, 58 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)) (to establish a claim of ineffective assistance of counsel, the defendant must show counsel's performance was objectively deficient, and the defendant suffered such prejudice due to the deficient performance that there is "a reasonable probability" that it "materially contributed to the defendant's conviction"). The murder victim's wife identified defendant as the person who shot and killed her husband. Moreover, following the murder, defendant told his girlfriend that he shot the victim. Finally, the evidence is inconsistent with defendant's trial defense that the crime was committed by two Caucasian men.
Next, defendant contends that the indictment should be dismissed because the murder weapon is no longer available for DNA testing. According to defendant, the weapon would have tested negative for his DNA if the State had preserved it. Again, we disagree. There is no evidence in the record to show bad faith on the part of the State in failing to preserve the weapon. See George v. City of Newark, 384 N.J.Super. 232, 243 (App. Div. 2006) (quoting Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 337, 102 L.Ed.2d 281, 289 (1988)) ("Without bad faith on the part of the State, 'failure to preserve potentially useful evidence does not constitute a denial of due process of law.'"). Further, defendant's argument that DNA testing on the murder weapon would have exonerated him is pure conjecture.