                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4628-15T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

C.S.,

     Defendant-Appellant.
__________________________

                    Submitted October 17, 2018 – Decided November 2, 2018

                    Before Judges Fuentes and Vernoia.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment No. 03-04-0541.

                    C.S., appellant pro se.

                    Angelo J. Onofri, Mercer County Prosecutor, attorney
                    for respondent (Jennifer M. Eugene, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM

          Defendant C.S. appeals from an order denying his motion for a new trial

and to overturn a purported illegal conviction and sentence. We affirm.
      In 2003, defendant was charged with sexual assault and endangering the

welfare of a child based on his then seven-year-old daughter's claim he vaginally

and anally penetrated her with his penis over a multi-year period. The trial

evidence included the testimony of Laura Tramontin, a New Jersey State Police

forensic scientist who was qualified as an expert in biological stain analysis. In

pertinent part, Tramontin testified she performed a "Kastle-Meyer" or "KM" test

on vaginal and anal swabs taken from the victim. She explained the testing

process and stated the results showed a "positive presumptive" indication of

blood in each swab. 1 Tramontin also tested the swabs for spermatozoa, did not

find any, and could not attribute the presumptive positive tests showing blood

to injury, infection or any other particular cause.

      In January 2004, a jury convicted defendant of two counts of second-

degree attempted aggravated sexual assault, N.J.S.A. 2C:14-2(a) and N.J.S.A.

2C:5-1 (counts one and three), first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a) (count two), and second-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4 (count four). The court sentenced defendant to an aggregate

twenty-two-year custodial term subject to the No Early Release Act (N.E.R.A),



1
   Tramontin also testified a swab taken from "an external genital specimen"
tested negative for the presence of blood.
                                                                          A-4628-15T2
                                         2
N.J.S.A. 2C:43-7.2, compliance with Megan's Law, N.J.S.A. 2C:7-1 to -19

(2004),2 and the special sentence of community supervision for life, N.J.S.A.

2C:43-6.4 (2003).3            .

      On direct appeal, we affirmed defendant's convictions, vacated the

N.E.R.A. requirements imposed on counts two and three, and remanded for

resentencing in accordance with the Supreme Court's then recent decision in

State v. Natale, 184 N.J. 458 (2005).4       State v. C.S. (C.S. I), No. A-7129-03

(App. Div. Oct. 27, 2006) (slip op. at 13). We also rejected defendant's argument

that the trial court erred by allowing Tramontin's testimony concerning "flawed



2
  Megan's law was amended in 2007, L. 2007, c. 227, and in 2009, L. 2009, c.
139, §§ 1 and 2, and is now codified at N.J.S.A. 2C:7-1 to -23.
3
   When defendant committed the offenses, N.J.S.A. 2C:43-6.4 provided for
imposition of the special sentence of community supervision for life for
defendant's conviction of offenses enumerated in subsection (a) of the statute.
N.J.S.A. 2C:43-6.4 was amended, effective on January 1, 2004, and thereafter
required imposition of the special sentence of parole supervision for life for
defendants convicted of the offenses enumerated in subsection (a). L. 2003, c.
267, § 1.
4
  Defendant was resentenced on count two to a sixteen-year custodial term with
an eight-year period of parole ineligibility. The court imposed a consecutive
six-year custodial term on count one subject to the requirements of N.E.R.A.
The court further imposed seven-year custodial terms on counts three and four
to be served concurrent to the sentence imposed on count two. The court also
sentenced defendant to compliance with Megan's Law and the special sentence
of community supervision for life.
                                                                          A-4628-15T2
                                         3
test results" that were "based on erred data that did not [coincide] with the actual

test results themselves," id. at 4, finding the argument was without sufficient

merit to warrant discussion in a written opinion, id. at 10. See also R. 2:11-

3(e)(2). The Supreme Court denied defendant's petition for certification. State

v. C.S., 189 N.J. 429 (2007).

      Defendant filed a post-conviction relief (PCR) petition, reprising his

argument that the trial court erred by admitting Tramontin's testimony

concerning the presumptive KM blood tests. The court denied the petition, and

defendant appealed, arguing the PCR court erred by rejecting his challenge to

the admission of Tramontin's testimony. Unpersuaded, we again determined the

argument lacked sufficient merit to warrant discussion in a written opinion.

State v. C.S. (C.S. II), No. A-1012-10 (App. Div. June 14, 2012) (slip op. at 7);

see also R. 2:11-3(e)(2). The Supreme Court denied defendant's petition for

certification. State v. C.S., 212 N.J. 431 (2012).

      In 2013, defendant filed a habeas corpus petition under 28 U.S.C. § 2254

in the United States District Court for the District of New Jersey, alleging in

part his trial counsel was ineffective by failing to challenge Tramontin's

testimony concerning the presumptive blood test, and the trial court erred by

allowing the testimony without a showing the KM test was scientifically


                                                                            A-4628-15T2
                                         4
reliable. Defendant argued the court should consider our decision in State v.

Pittman, where we reversed a conviction because testimony about a KM test of

blood found on the defendant's clothing did not address the test's scientific

reliability, left the jury "with the clear impression that the test was conclusive,

not presumptive," and "substantially undercut the weight of defendant's

testimony" denying involvement in the crimes. 419 N.J. Super. 584, 594-95

(App. Div. 2011).

      The District Court rejected as "meritless" defendant's claim that our

decision in Pittman constituted "'new' case law that could not have been

considered by the state courts that reviewed his case." Slaughter v. Santiago

(Slaughter I), No. 13-2383 (D.N.J. Nov. 30, 2015) (slip op. at 3). The District

Court found that because Pittman was decided on May 13, 2011, it could have

been considered on defendant's appeal of the denial of his PCR petition because

we did not affirm the denial until June 14, 2012, and the Supreme Court did not

deny defendant's petition for certification until October 25, 2012. Id. at 3-4.

The court determined that any failure of this court or the Supreme Court to

address Pittman "falls squarely on [defendant's] shoulders" because he could




                                                                           A-4628-15T2
                                        5
have relied on the decision "but he did not do so." Id. at 4. The court denied

defendant's petition.5 Id. at 6.

      The Third Circuit Court of Appeals affirmed the denial of defendant's

habeas petition. Slaughter v. Administrator, Adult Diagnostic and Treatment

Center (Slaughter II), No. 15-4040 (3d Cir. April 14, 2016) (slip op. at 1-2). The

court rejected defendant's reliance upon Pittman and in part found that, "given

the strength of the evidence" introduced against defendant at trial, "he cannot

show that he was prejudiced by counsel's alleged failures in challenging the

medical evidence."6 Id. at 2.

      In December 2015, while his appeal was pending in the Court of Appeals,

defendant filed a motion in the Law Division for a new trial under Rule 3:20-2,

asserting he was entitled to relief based on "newly discovered evidence" in the

form of our decision in Pittman.      He argued his conviction was based on

Tramontin's "false and misleading testimony" and "improperly tested and

unconfirmed scientific evidence." In a supplemental March 15, 2016 letter to



5
  The court also denied the petition because defendant failed to raise the Pittman
issue in his initial petition filed with the District Court. Id. at 4-6.
6
  The court subsequently denied defendant's petition for a rehearing en banc.
Slaughter v. Administrator, Adult Diagnostic and Treatment Center, No. 15-
4040 (3d Cir. May 23, 2016) (slip op. at 1).
                                                                          A-4628-15T2
                                        6
the court, he also asserted his N.E.R.A. sentence on count one is illegal and his

special sentence of community supervision for life violates the prohibition

against double jeopardy. The court denied defendant's motion in an April 5,

2016 letter opinion and order.

      Defendant appealed and makes the following arguments:

            POINT 1

            THE TRIAL COURT STATED THAT IT MADE ITS
            DECISION BASED UPON [THE] RECORD AND
            DECISION OF THE NEW JERSEY APPELLATE
            COURT.      THE APPELLANT STATES THAT
            DURING ITS PROCEDURAL PROCESS WHEN
            DECIDING THE APPELLANT'S CASE, THE
            APPELLATE COURT AT THAT TIME DID NOT
            HAVE [THE] BENEFIT OF STATE[] V. PITTMAN,
            419 N.J. SUPER. 584; 18 A.3D 203 (DECIDED MAY
            13, 2011) AS IT DID NOT EXIST DURING THE
            DIRECT APPEAL OR INITIAL POST CONVICTION
            RELIEF (PCR) PROCESS BEFORE THE TRIAL
            COURT.

            POINT 2

            UNDER THE RULES OF COURT PROCEDURE,
            RULE 3:20-2 TIME FOR MAKING MOTION,
            STATE[] V. PITTMAN, 419 N.J. SUPER. 584; 18
            A.3D 203 (DECIDED MAY 13, 2011) MUST BE
            SEEN, UNDERSTOOD AND RECOGNIZED AS
            NEW[LY] DISCOVERED CASE LAW AND
            EVIDENCE THAT WAS NOT AVAILABLE TO THE
            APPELLANT WHEN HE WAS APPEALING HIS
            CONVICTION     AND    PROCLAIMING       HIS


                                                                         A-4628-15T2
                                       7
INNOCENCE IN AND AT THE STATE COURT
DIRECT AND PCR APPEAL LEVELS.

POINT 3

IN STATE[] V. PITTMAN, 419 N.J. SUPER. 584; 18
A.3D 203 (DECIDED MAY 13, 2011), THE ISSUES
OF SCIENTIFIC TESTING AND TESTIMONY
WERE VERY MUCH SIMILAR TO THOSE RAISED
IN THE APPEALS OF THE APPELLANT, YET
THEY WERE IGNORED BY THE NEW JERSEY
COURTS AND FOUND TO BE WITHOUT MERIT.

POINT 4

THE NEW JERSEY STATE COURTS IN STATE[] V.
PITTMAN, 419 N.J. SUPER. 584; 18 A.3D 203
(DECIDED MAY 13, 2011) OPENLY ADMITTED
THAT PRIOR TO PITTMAN IT HAD NO CASE LAW
ON THE ISSUE "THE STATE ADMITS THAT
[]NEW JERSEY CASE LAW IS SILENT AS TO THE
RELIABILITY OF THE PHENOLPHTHALEIN TEST
(KM TEST) FOR THE PRESENCE OF BLOOD." THE
TRIAL COURT HAD AN OBLIGATION TO
REVIEW AND ENSURE THAT STATE AND
FEDERAL CONSTITUTIONAL RIGHTS OF THE
APPELLANT [WERE] NOT VIOLATED AND THIS
COULD ONLY BE ACCOMPLISHED BY HOLDING
AN EVIDENTIARY HEARING ON THE MATTER
OF STATE V. PITTMAN.

PART 5

THERE IS NO CASE LAW SHOWING THAT THE
PHENOLPHTHALEIN TEST FOR THE PRESENCE
OF BLOOD MEETS THE STANDARDS SET FORTH
IN UNITED STATES V. FRYE, 293 F. 1013 (D.C. CIR.
1923).   THE STATE'S EXPERT WITNESS

                                                   A-4628-15T2
                       8
KNOWINGLY MADE FALSE AND MISLEADING
STATEMENTS AS TO THE ACCURACY OF THE
PHENOLPHTHALEIN TEST FOR THE PRESENCE
OF BLOOD AND NEVER MENTIONED OR GAVE
REFERENCE TO THE FACT THAT FALSE
POSITIVES OCCUR OR WHAT SUBSTANCES
COULD CAUSE FALSE POSITIVE READINGS.
THIS ISSUE WAS ALSO RAISED DURING THE
APPEAL PROCESS.[] ["]Q. OKAY, AND THE
BROWN STAIN, IS THAT FECAL MATERIAL OR
IS THAT ALSO HAVING TO DO WITH BLOOD? A.
AGAIN, THERE COULD BE FECAL MATERIAL IN
THERE,    BUT     I   FOUND    A    POSITIVE
PRESUMPTIVE FOR BLOOD, SO THERE IS BLOOD
THERE." (EMPHASIS ADDED) (SEE 5T PG. 122
LINES 2 T0 6), "Q. MISS TRAMONTIN, IN A CASE
LIKE THIS WHERE BLOOD IS FOUND, DO YOU DO
ANY FURTHER TESTING ON THE BLOOD? A. IN A
CASE LIKE THIS, THERE IS NO NEED FOR ANY
FURTHER TESTING OF THE BLOOD, CORRECT. Q.
WHY NOT? A. BECAUSE IT'S PRESUMEDD THAT
THE BLOOD WAS FROM THE VICTIM."
(EMPHASIS      ADDED)[.]   THERE     IS   NO
CONSIDERATION         OF    THIRD      PARTY
CONTAMINATION OR OF A FALSE POSITIVE AS
FINALLY STATED IN PITTMAN.

POINT 6

THE FACT THAT THE ALLEGED POSITIVE
[PRESENCE]  OF     BLOOD    FROM      THE
PHENOLPHTHALEIN TEST WAS IN DIRECT
CONFLICT WITH THE MEDICAL REPORT
ENTERED INTO EVIDENCE BY THE STATE'S
PROSECUTOR AT THE APPELLANT'S TRIAL
SHOWS A CONFLICT IN THE STATE'S CASE. THE
MEDICAL REPORT STATED NO BLOOD
PRESENT, FURTHER NO WITNESS WAS

                                               A-4628-15T2
                     9
INTRODUCED BY THE STATE THAT COULD
STATE WHERE THE ALLEGED BLOOD CAME
FROM.

POINT 7

The Imposition OF [N.J.S.A.] 2C:43-7.2 (N.E.R.A.)
Rendered Defendant's Sentence Illegal[.]

POINT 8

COMMUNITY SUPERVISION FOR LIFE IS
PUNITIVE IN NATURE AND THUS IS
CONSIDERED A SECOND SENTENCE WHICH
VIOLATES THE PETITIONER'S RIGHTS UNDER
THE UNITED STATES AND NEW JERSEY
CONSTITUTIONS, NEW JERSEY CIVIL RIGHTS
LAW AND NEW JERSEY [STATE] LAW AGAINST
DISCRIMINATION    FOR     THOSE   WITH
DIAGNOSED MENTAL, PSYCHOLOGICAL OR
PSYCHIATRIC DISABILITIES.

POINT 9

[N.J.S.A.] 2C:14-2a IS UNCONSTITUTIONAL IN
ITS FORMER AND PRESENT FORM BECAUSE, IT
IS BIAS, DISCRIMINATES AND DOES NOT
ALLOW A DEFENDANT TO PUT FORTH A
REASONABLE DEFENSE WITHOUT VIOLATING
HIS OR HER 5 TH AMENDMENT RIGHTS AGAINST
SELF[-]INCRIMINATION, FURTHER IT CREATES
BIAS     AND     DISCRIMINATION    BETWEEN
ALLEGED VICTIMS BECAUSE UNDER THE LAW
IT     AUTOMATICALLY       CREATES     TWO
DIFFERENT       TIERS   OF   VICTIMS   AND
SENTENCES, DUE TO THE AGE OF THE
ALLEGED VICTIM (I.E. THOSE UNDER THE AGE
OF THIRTEEN YEARS OF AGE AND THOSE

                                                    A-4628-15T2
                      10
            ALLEGED VICTIMS WHO ARE THIRTEEN YEARS
            OF AGE AND ABOVE) IN VIOLATION OF THE
            EQUAL PROTECTION CLAUSE OF THE 14 TH
            AMENDMENT.

            POINT 10

            [N.J.S.A.] 2C:14-2a IS UNCONSTITUTIONAL IN
            ITS FORMER AND PRESENT FORM, BECAUSE, IT
            HAS TWO SEPARATE AND DISTINCTLY
            DIFFERENT        MEANINGS     FOR    WHAT
            PENETRATION IS STATED TO BE AND MEAN IN
            A SEXUAL ASSAULT, I.E. THE ANAL MEANING
            IS DIRECT AND CONCISE IN HOW IT DEFINES
            WHAT PENETRATION IS STATED TO BE AND
            THE MEANING FOR WHAT CONSTITUTES
            VAGINAL PENETRATION IS VAGUE AND
            AMBIGUOUS.

            POINT 11

            [N.J.S.A.] 2C:5-1/2C:14-2a IS A LESSER INCLUDED
            OFFENSE OF [N.J.S.A.] 2C:14-2a(1) AND SHOULD
            HAVE BEEN MERGED WITH [THE GREATER] OF
            THE TWO OFFENSES, INSTEAD OF BECOMING A
            SEPARATE CONSECUTIVE SENTENCE THUS
            RENDERING THE DEFENDANT'S SENTENCE
            ILLEGAL AND VIOLATING HIS FEDERAL AND
            STATE CONSTITUTIONAL RIGHTS UNDER 1ST,
            4TH, 5TH, 6TH, 8TH AND 14 TH AMENDMENTS AND
            ARTICLE 1§1, 7, 10, 11, 12, 14 AND 18 OF THE
            NEW JERSEY CONSTITUTION[.]

      We first consider defendant's contention he is entitled to a new trial based

on purported newly discovered evidence. More particularly, he contends he is

entitled to a new trial based on our decision in Pittman. He argues Tramontin's

                                                                          A-4628-15T2
                                      11
testimony did not establish the scientific validity of the KM test results under

our holding in Pittman and, as a result, his conviction rests on Tramontin's

unreliable and inadmissible tests and testimony.

      To obtain a new trial based on "newly discovered evidence," a defendant

must show that the new evidence is '(1) material to the issue and not merely

cumulative or impeaching or contradictory; (2) discovered since the trial and not

discoverable by reasonable diligence beforehand; and (3) of the sort that would

probably change the jury's verdict if a new trial were granted.'" State v. Smith,

224 N.J. 36, 49 (2016) (quoting State v. Nash, 212 N.J. at 518, 549 (2013)).

Defendant argues our decision in Pittman constitutes "newly discovered

evidence," but "a change in the law by judicial decision subsequent to trial does

not constitute newly discovered evidence-in fact, the judicial decision is not

'evidence' at all." State v. Kaiser, 80 N.J. Super. 176, 180 (App. Div. 1963).

The decision merely sets forth our determination there was insufficient evidence

supporting admission of the KM tests based on the applicable legal principles

and the evidence and circumstances presented in that case. Pittman, 419 N.J.

Super. at 592-93.

      Moreover, our decision in Pittman was founded on "principles of law

governing admissibility of scientific test results in criminal trials" that were well


                                                                             A-4628-15T2
                                        12
established prior to defendant's 2004 trial, id. at 592, and which were

discoverable by reasonable diligence before his trial, see State v. Ways, 180 N.J.

171, 192 (2004) (finding newly discovered evidence permitting the grant of a

new trial "must not have been discoverable earlier through the exercise of

reasonable diligence"). In Pittman, we summarized those controlling principles

by citation to only pre-1998 case law. 419 N.J. Super. at 592. Thus, the

principles supporting our conclusion the KM tests results were not admissible

in Pittman were available to defendant when his case was tried in 2004, during

the direct appeals of his conviction and denial of his PCR petition, and while his

habeas petition was litigated. In fact, defendant relied on those principles to

challenge the court's admission of Tramontin's testimony on his direct appeals,

and we found defendant's challenges to be without merit sufficient to warrant

discussion in a written opinion. C.S. I, slip op. at 10; C.S. II, slip op. at 7.

      Even assuming our decision in Pittman constituted "newly discovered

evidence," defendant's claim is unavailing because he has not demonstrated that

barring Tramontin's testimony "'would probably change the jury's verdict if a

new trial were granted.'" Smith, 224 N.J. at 49 (2016) (citations omitted). Based

on our review of the record, we are convinced that had Tramontin's testimony

been barred as defendant contends it should have been, there is no probability


                                                                             A-4628-15T2
                                        13
the jury's verdict would have changed. The evidence against defendant was

overwhelming, and Tramontin's testimony was of little consequence because,

although she explained the KM test presumptively showed blood in the vaginal

and anal swabs, she acknowledged its presence could result from causes other

than a sexual assault. As the Court of Appeals found when it affirmed the denial

of defendant's habeas petition, he cannot demonstrate prejudice resulting from

Tramontin's testimony because of the strength of the other trial evidence against

him. Slaughter II, slip op. at 2.

      In sum, defendant offers no evidence satisfying the standard for a new

trial based on newly discovered evidence, see Smith, 224 N.J. at 49, and

provides nothing more than a reprisal of arguments that were rejected on his

direct appeals and by the federal courts on his habeas petition. The arguments

are without sufficient merit to warrant further discussion in a written opinion.

R. 2:11-3(e)(2).

      Defendant also asserts the N.E.R.A. requirements of his sentence and his

special sentence of community supervision for life are illegal.          We have

considered the contention, and it is without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2).

      Affirmed.


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                                         14
