                                NOT FOR PUBLICATION WITHOUT THE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-3820-17T2

STATE OF NEW JERSEY,

                    Plaintiff-Respondent,

v.

MANUEL P. RODRIGUEZ, a/k/a
MANUEL RODRIQUEZ,

          Defendant-Appellant.
______________________________

                    Submitted December 18, 2019 – Decided December 30, 2019

                    Before Judges Haas and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment Nos. 14-07-1796
                    and 15-01-0074.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Laura B. Lasota, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Matthew E.
                    Hanley, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

       An Essex County grand jury returned an eleven-count indictment 1

charging defendant Manuel Rodriguez and his brother, Jenssy, 2 with two counts

of second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and

N.J.S.A. 2C:12-1(b)(1) (counts one and seven); three counts of second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts two, eight, and ten); three

counts of second-degree possession of a handgun for an unlawful purpose,

N.J.S.A. 2C:39-4(a) (counts three, nine, and eleven); second-degree conspiracy

to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) (count four);

first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1)

(count five); and second-degree possession of a handgun, N.J.S.A. 2C:39-5(b)

(count six). The grand jury returned a second indictment 3 charging defendant

with second-degree certain persons not to possess a handgun, N.J.S.A. 2C:39-

7(a). Prior to trial, the trial judge granted the State's motion to dismiss counts

seven through eleven of Indictment No. 15-01-0074.


1
    Indictment No. 15-01-0074.
2
   Because defendant and his brother share the same surname, we refer to
defendant's brother by his first name, Jenssy, in order to avoid confusion. In
doing so, we intend no disrespect.
3
    Indictment No. 14-07-1796.
                                                                          A-3820-17T2
                                        2
        Defendant and Jenssy were tried together on the remaining counts of this

indictment. Following the trial, the jury found defendant guilty of counts two,

three, five, and six, and not guilty of counts one and four. The jury acquitted

Jenssy of all six counts. After the verdict, defendant pled guilty to the certain

persons charge in Indictment No. 14-07-1796. Pursuant to the parties' plea

agreement on that charge, the State agreed to recommend that the judge sentence

defendant to a five-year term subject to a five-year period of parole ineligibility

to run concurrent to the sentence to be imposed under Indictment No. 15 -01-

0074.

        Prior to sentencing, defendant filed a motion seeking to compel that a

DNA test be conducted of a jacket found at the crime scene that the State had

not introduced in evidence at trial. The judge denied this motion.

        Approximately one year after the jury rendered its verdict, but still prior

to sentencing, the judge received a letter from an individual purporting to have

been the jury foreperson. Defendant filed a motion seeking to interview the

juror, and the judge denied this request.

        At sentencing, the judge merged counts two and three of Indictment No.

15-01-0074 into count five, and sentenced defendant to eighteen years in prison,

subject to an eighty-five percent period of parole ineligibility, and five years of


                                                                           A-3820-17T2
                                         3
parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2. The judge imposed a concurrent ten-year term, with a five-year

period of parole ineligibility, on count six of Indictment No. 15-01-0074; and a

concurrent five-year term, with a five-year period of parole ineligibility for the

certain persons charge under Indictment No. 14-07-1796. Thus, defendant's

aggregate term was eighteen years, subject to NERA. This appeal followed.

      On appeal, defendant raises the following contentions:

            POINT I

            THE TRIAL COURT ERRED IN DENYING
            DEFENDANT'S MOTION FOR POST-CONVICTION
            DNA TESTING OF A JACKET FOUND AT THE
            SCENE OF THE SHOOTING PURPORTED BY
            POLICE TO BELONG TO THE SUSPECT.

            POINT II

            THE TRIAL COURT ERRED IN DENYING
            DEFENDANT'S MOTION FOR LEAVE TO
            INTERVIEW A JUROR WHO, POST-VERDICT,
            SENT A LETTER TO THE TRIAL COURT
            EXPRESSING THAT THE VERDICT WAS
            "RUSHED AND WRONG" AND WHO CONTENDED
            THAT HER VOTE OF GUILT DID NOT REFLECT
            HER DETERMINATION.

            POINT III

            DEFENDANT'S SENTENCE IS MANIFESTLY
            EXCESSIVE AND MUST BE REDUCED.


                                                                          A-3820-17T2
                                        4
      After reviewing the record in light of these contentions, we affirm.

                                        I.

      The parties are fully familiar with the evidence presented at trial.

Therefore, we need only recite the most salient facts related to the issues raised

on appeal.

      At approximately 10:00 p.m. on November 9, 2013, the victim was

walking home from a restaurant. As she did so, the victim saw defendant and

Jenssy walking toward her. The victim knew Jenssy well and had been friends

with him for several years. While the victim did not know defendant personally,

she knew defendant was Jenssy's brother and went by nickname "Pito."

      Jenssy walked by the victim first, and the two exchanged hellos. The

victim then began to cross the street, and saw defendant moving across the street

toward her. Defendant told the victim to "come here" three times, but she

refused to do so. The victim looked back at defendant after he spoke to her the

third time, and saw he had taken out a handgun. Defendant shot the victim in

the neck, and she began to run toward her apartment house. As she ran, the

victim continued to hear gunshots.

      When she got to the house, a neighbor let the victim into his apartment,

and she called the police. When the officers responded, they found the victim


                                                                          A-3820-17T2
                                        5
on the floor of the apartment. She was bleeding profusely and gasping for air.

A medical trauma expert testified the victim had five bullet wounds to her neck

and right shoulder, and that these wounds were "very serious and potentially life

threatening[.]"

      The police recovered twenty-four shell casings at the scene which were

identical to each other and were fired from the same handgun. The police also

found a bullet fragment and a dark-colored jacket. The police later discovered

there was a surveillance video of the entire incident. Because of that, the police

did not submit jacket for DNA analysis, or offer it in evidence at trial.

      Although the victim could not speak for approximately one month after

the shooting, she was able to communicate with detectives in writing and by

responding to yes or no questions. The victim reported that defendant and

Jenssy were her assailants, and later identified photographs of the two men. The

victim also pointed out defendant and Jenssy at trial.

                                        II.

      In Point I of his brief, defendant argues that the judge abused her

discretion by denying his post-verdict, pre-sentence motion to require DNA

testing of the jacket the police seized at the crime scene, but did not introduce

in evidence. This contention lacks merit.


                                                                            A-3820-17T2
                                        6
      In support of his motion, defendant relied upon N.J.S.A. 2A:84A-32a,

which permits "'any person who was convicted of a crime and is currently

serving a term of imprisonment'[4] to make a motion for DNA testing." State v.

Hogue, 175 N.J. 578, 584 (2003) (alteration in original) (quoting N.J.S.A.

2A:84A-32a). However, the trial court "shall not grant the motion . . . unless"

the defendant has 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, replaced or
                  altered in any material aspect;

            (3)   the identity of the defendant was a significant
                  issue in the case;

            (4)   the eligible person has made a prima facie
                  showing that the evidence sought to be tested is
                  material to the issue of the eligible person's
                  identity as the offender;
            (5)   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

4
  Although defendant had been convicted prior to filing his motion, he had not
yet been sentenced. Therefore, N.J.S.A. 2A:84A-32a is not strictly applicable.
However, because the State does not specifically raise this argument in
opposition to defendant's appeal, we will address defendant's contention on this
point.
                                                                        A-3820-17T2
                                       7
                  would be granted. The court in its discretion may
                  consider any evidence whether or not it was
                  introduced at trial;

            (6)   the evidence sought to be tested meets either of
                  the following conditions:

                  (a)    it was not tested previously;

                  (b)    it was tested previously, but the requested
                         DNA test would provide results that are
                         reasonably more discriminating and
                         probative of the identity of the offender or
                         have a reasonable probability of
                         contradicting prior test results;

            (7)   the testing requested employs a method generally
                  accepted within the relevant scientific
                  community; and

            (8)   the motion is not made solely for the purpose of
                  delay.

            [N.J.S.A. 2A:84A-32a(d).]

"It is defendant's burden to establish that all of the elements necessary for DNA

testing have been fulfilled." State v Armour, 446 N.J. Super. 295, 311 (App.

Div. 2016) (citing State v. Peterson, 364 N.J. Super. 387, 392-93 (App. Div.

2003)).

      N.J.S.A. 2A:84A-32a(d)(5) "does not require a defendant to 'prove the

DNA results will be favorable, rather it must only be established that there is a

reasonable probability that a new trial would be granted if the DNA results are

                                                                         A-3820-17T2
                                        8
favorable to the defendant.'" Ibid. (quoting State v. Reldan, 373 N.J. Super. 396,

402 (App. Div. 2004)). "Thus, the 'reasonable probability' requirement set forth

in subsection (d)(5) 'applies only to the grant of a new trial in the event the

results of DNA testing are favorable.'" Armour, 446 N.J. Super. at 311-12

(quoting State v. DeMarco, 387 N.J. Super. 506, 517 (App. Div. 2006)).

      As for whether favorable DNA test results would likely result in the grant

of a motion for a new trial, the same standards apply as for any newly discovered

evidence. Peterson, 364 N.J. Super. at 398. As we have held:

            [W]here a new trial is sought premised on the discovery
            of "new" evidence, the evidence must be: (1) material
            to the issue and not merely cumulative, impeaching or
            contradictory; (2) discovered after the trial and not
            reasonably discoverable prior thereto; and (3) of a
            nature as to probably have affected the jury's verdict.

            [Armour, 446 N.J. Super. at 312 (citation omitted).]

      Applying these principles, the trial judge properly concluded that

defendant failed to demonstrate there was a "reasonable probability that a new

trial would be granted if the DNA results [were] favorable to . . . defendant."

Id. at 311. As the judge found, the State did not rely on the jacket to tie

defendant to the crimes involved in this case.        Instead, it presented the

uncontradicted testimony of the victim, who named defendant as her assailant



                                                                          A-3820-17T2
                                        9
in the hospital after the shooting, picked him out of a photo array, and identified

him again at the trial.

      Under these circumstances, the lack of defendant's DNA on the jacket

would not have affected the jury's verdict. Indeed, all it would prove would be

that the jacket, which the State did not even introduce in evidence, did not

belong to defendant.      Because DNA testing "would neither exculpate . . .

defendant nor inculpate another person[,]" the judge correctly denied

defendant's motion to require such testing. Id. at 315. Therefore, we reject

defendant's contention on this point.

                                        III.

      In Point II of his brief, defendant argues that the judge erred by denying

his motion for leave to interview a juror. We disagree.

      One year and two days after the jury rendered its verdict, an individual

purporting to have been the jury foreperson sent a handwritten letter to the judge.

The letter stated:

             I was the number one juror in the Manuel and Jenssy
             Rodriguez case . . . Jenssy Rodriguez was found not
             guilty and Manuel Rodriguez was found guilty[.] My
             judg[]ment to find Manuel guilty was wrong[,] I feel
             like both brothers should have been [found] not guilty.
             I say that because of the lack of evidence in the case
             and the eyewitness picked a man she said she only saw
             once or twice before. The State . . . had us try a case

                                                                           A-3820-17T2
                                        10
            with no motive. As the number one juror I felt like our
            decision was rushed and wrong, most of the jurors
            wanted to let both brothers go. My decision of guilty
            on Manuel . . . has bothered me since the case started
            and I'm hoping my letter makes a difference for his
            future. If I had to try this case again[,] I would find
            Manuel "Not Guilty." Please take this letter into
            consideration for a retrial or an acquittal.

      The judge denied defendant's motion to interview the juror because

"[a]bsent any outside taint, a change of heart is insufficient for the [c]ourt to

investigate the thorough process which induced a particular juror to join in a

particular verdict." The judge explained that

            [t]he record is also void of any indication that [the
            juror] was overborne by improper actions of any of the
            other jurors. A court should not investigate the thought
            process, which included a particular . . . juror to join a
            verdict, particularly when there is nothing in the record
            indicating that the juror voted for a guilty verdict
            merely because his or her will was overborne by
            improper actions by other jurors.

We discern no basis for disturbing this reasoned determination.

      Our courts have long recognized a privilege against disclosure of a jury's

deliberations in order to maintain the secrecy that ensures free communication

and independence in the jury room. State v. Athorn, 46 N.J. 247, 250-51 (1966).

To protect the confidentiality of jury deliberations, Rule 1:16-1 prohibits the

parties and any attorney from interviewing jurors, "[e]xcept by leave of court


                                                                         A-3820-17T2
                                       11
granted on good cause[.]" "More than a mere possibility of a tainted verdict

must exist to satisfy the good cause requirement." State v. Young, 181 N.J.

Super. 463, 469 (App. Div. 1982).

      Three reasons support this strong policy against overturning jury verdicts

based on the details of deliberations. First, "disappointed litigants would be

encouraged to tamper with jurors, to harass them and to employ fraudulent

practices in an effort to induce them to repudiate their decisions." Athorn, 46

N.J. at 250. Second, adopting a contrary policy would be tantamount to "an

open invitation . . . to any disgruntled juror who might choose to destroy a

verdict to which he had previously assented." Ibid. Third, the general refusal

to subject jurors to interrogation over their reasons for joining the verdict seeks

to foster open, honest, and vigorous deliberations. State v. Difrisco, 174 N.J.

195, 241 (2002).

      Generally speaking, the courts have recognized two exceptions to the rule

that evidence from jury deliberations will not warrant a new trial. First, if it

appears that racial or religious bigotry infected deliberations, a new trial is

warranted. State v. Koedatich, 112 N.J. 225, 288 (1988). Second, a new trial

may be granted "when a juror misinforms his or her colleagues in the jury room




                                                                           A-3820-17T2
                                       12
about the facts of the case based on his personal knowledge of facts not in

evidence." Ibid.

      "[C]alling back jurors for interrogation after they have been discharged is

an extraordinary procedure which should be invoked only upon a strong showing

that a litigant may have been harmed by jury misconduct." Ibid. The strictness

with which this rule is applied is demonstrated by the facts of Athorn. There,

the juror asserted several improprieties. He stated other jurors harassed him

when he refused to vote guilty, that he was confused by the trial judge's

instructions, and that he was tricked into voting guilty. Athorn, 46 N.J. at 249-

50.

      The Supreme Court reversed the trial court's order calling the jurors back

for questioning, concluding that "even if [the juror's allegations] were to be

substantiated," there would not be a sufficient basis to overturn the verdict. Id.

at 250.   The Court reasoned that the case did not fall into one of the

aforementioned exceptions, and thus offered "no reason for departing from the

general rule" against inquiring about the content of jury deliberations. Id. at

252. Additionally, there was no evidence that the repudiating juror's will was

overborne by improper actions on the part of the rest of the jury. Id. at 253.




                                                                          A-3820-17T2
                                       13
      We concur with the trial judge's application of these principles in the case

at hand. Assuming for the sake of argument that the individual who sent the

letter to the judge had been the foreperson of the jury, she failed to ide ntify any

outside influence or juror misconduct that may have affected the jury's

deliberations. Instead, the individual merely stated she would now reach a

different verdict if permitted to consider the case for a second time. Under

Athorn and its progeny, this was clearly insufficient to warrant the extraordinary

relief defendant sought.    Therefore, the judge correctly denied defendant's

motion for leave to interview the juror.

                                        IV.

      Finally, defendant asserts in Point III of his brief that his sentence was

excessive. We disagree.

      Trial judges have broad sentencing discretion as long as the sentence is

based on competent credible evidence and fits within the statutory framework.

State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider

"any relevant aggravating and mitigating factors" that "are called to the court's

attention[,]" and "explain how they arrived at a particular sentence." State v.

Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297

(2010)). "Appellate review of sentencing is deferential," and we therefore avoid


                                                                            A-3820-17T2
                                        14
substituting our judgment for the judgment of the trial court. Id. at 65; State v.

O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

      We are satisfied the judge made findings of fact concerning aggravating

and mitigating factors that were based on competent and reasonably credible

evidence in the record and applied the correct sentencing guidelines enunciated

in the Code. Accordingly, we discern no basis to second-guess the sentence.

      Affirmed.




                                                                          A-3820-17T2
                                       15
