                        NOT FOR PUBLICATION WITHOUT THE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-2515-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

WILSON MORALES,

        Defendant-Appellant.

________________________________

              Submitted April 26, 2017 – Decided August 25, 2017

              Before Judges Carroll and Gooden Brown.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Camden County,
              Indictment No. 05-04-1576.

              Wilson Morales, appellant pro se.

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney   for   respondent   (Jason   Magid,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant appeals from the January 20, 2016 Law Division

order denying his motion for post-conviction DNA testing and

assignment of counsel.          We affirm.
     On September 29, 2006, defendant entered a negotiated guilty

plea to first-degree aggravated manslaughter, N.J.S.A. 2C:11-

4(a)(1), and was sentenced in accordance with the plea agreement

to eighteen years imprisonment, subject to the No Early Release

Act, N.J.S.A. 2C:43-7.2.     The charges stemmed from defendant's

involvement in a robbery at a grocery store, during which the

storeowner was shot and killed.       The State's proofs included the

victim's wife's identification of defendant as one of two robbers,

defendant's girlfriend's incriminating statement and defendant's

confession.

     The victim's wife identified defendant from a photo array as

the gunman.   Defendant's girlfriend told police that she overheard

defendant and another person planning to rob a store.     Thereafter,

defendant came home one night in tears with money and a gun and

admitted to her that he had robbed and shot someone in a store.

In addition, defendant confessed to police during a custodial

interrogation that he and an associate planned the robbery but he

waited outside until he heard gunshots, at which point he entered

the store briefly to pull out his associate.         During his plea

allocution, defendant admitted that he and his associate drove to

the grocery store intending to rob it and he knew his associate

had a gun. Defendant acknowledged that his reckless actions caused

the victim's death and that he was an accomplice to the robbery.

                                  2                           A-2515-15T4
     Defendant's direct appeal was heard by the excessive sentence

panel, R. 2:9-11, which affirmed his sentence, State v. Morales,

No. A-6700-06 (App. Div. Nov. 14, 2008), and the Supreme Court

denied defendant's petition for certification.            State v. Morales,

198 N.J. 314 (2009).      Defendant filed his first petition for post-

conviction relief (PCR) on March 16, 2009 and was assigned counsel.

On May 10, 2010, that petition, which asserted, among other things,

a Brady1 violation in connection with defendant's girlfriend's

recantation and the State withholding DNA evidence, was denied by

the trial court and that denial was later affirmed on appeal.

State   v.    Morales,   No.   A-1270-10   (App.   Div.   Feb.   20,   2013).2

Thereafter, the Supreme Court denied defendant's petition for

certification.       State v. Morales, 216 N.J. 6 (2013).

     On February 27, 2015, defendant filed a pro se motion for

post-conviction DNA testing and assignment of counsel, contending

that, despite his guilty plea, testing of the ski mask found at

the scene would show that "someone else committed the crime."                 To

support      his   application,   defendant   submitted    a   certification

averring that "[he] had voluntarily submitted hair samples to the


1
  Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963).
2
  Defendant filed a second PCR petition, but that petition was
dismissed on January 9, 2012 because the appeal of defendant's
first PCR petition was pending.

                                      3                                A-2515-15T4
State for DNA testing[.]"     Defendant certified that although a

forensic analyst had sent his trial attorney "a report saying more

DNA could be performed on the mask that could exonerate [him,]"

the State "did not do a completed test of the hair that was found

on the mask[.]"    Accordingly, defendant sought "STR testing and

mitochondrial testing[.]"

     Attached to defendant's certification was a March 20, 2006

letter addressed to his trial attorney from a forensic analyst

with Orchid Cellmark who was apparently retained as a defense

expert.   The analyst reported the results of her review of the New

Jersey State Police Laboratory testing performed in the case.

While the analyst agreed with "the ultimate conclusion" of the

State Police that "no DNA was detected[,]" the analyst "believed

further testing could have been performed[,]" stating:

           Further analysis of the ski mask for trace
           evidence is a possibility. If any hairs are
           present, additional DNA can be performed. If
           the hairs have roots then STR testing can be
           performed. If there are no roots present on
           any hairs possibly collected from the mask,
           then mitochondrial testing can be utilized.

     Judge Edward J. McBride, Jr., denied defendant's motion in a

cogent and well-reasoned written opinion.     The judge carefully

analyzed N.J.S.A. 2A:84A-32a and concluded that defendant failed

to meet all the procedural and substantive requirements of the

statute, and was therefore "not entitled to either performance of

                                 4                          A-2515-15T4
post-conviction forensic DNA testing or assignment of counsel."

Judge    McBride   acknowledged     that   defendant     had   consented    to

providing hair samples for comparison to evidence collected in the

case.    Defendant had also provided a letter from a defense expert

who agreed with the test results performed by the State Police but

would have performed other tests on the hair samples, specifically

STR and mitochondrial testing.             Because defendant now sought

performance of those tests and was willing to provide supplemental

samples    to   facilitate    them,    Judge   McBride    determined      that

defendant thereby "satisfied his burdens under [N.J.S.A.] 2A:84A-

32a(a)(1)(c), (d), and (e)."

     However,      the   judge     found   that   defendant     "failed     to

satisfactorily     explain,   as    required   under   [N.J.S.A.]   2A:84A-

32a(a)(1)(a), why his identity was a significant issue in the

case."    The judge explained:

            Defendant submits that "the identity of him
            [sic] is a significant issue in this case,
            because he is innocent of the crime he pled
            to."   This bald assertion, made nearly ten
            years after the [d]efendant pled guilty, is
            insufficient for several reasons.     First, a
            finding that the hair was not [d]efendant's
            would not necessarily be exculpatory given the
            other   evidence    in  the  case,   including
            [d]efendant's    inculpatory  statement,   the
            statement of his girlfriend, and the out-of-
            court identification of [d]efendant by the
            victim's wife. Second, and more importantly,
            [d]efendant pled guilty to the charge of
            aggravated manslaughter and admitted under

                                      5                              A-2515-15T4
            oath that, inter alia, he was an accomplice
            to the robbery and that he was, in fact, guilty
            of aggravated manslaughter.

       Further, the judge found that defendant "failed to explain,

as required by [N.J.S.A.] 2A:84A-32a(a)(1)(b), . . . that if the

results of such DNA testing were favorable to [d]efendant, a motion

for a new trial based upon newly discovered evidence would be

granted."      Citing the standard for a new trial motion articulated

in State v. Carter, 85 N.J. 300, 314 (1981), the judge pointed out

that "although it is arguable that such DNA evidence could be

material, . . . contrary to [d]efendant's assertions, at no point

does    [the    defense   expert]     state   that   such   evidence     would

'exonerate' [d]efendant."      Further, according to the judge, "this

evidence was known to [d]efendant and his counsel at the time of

his plea agreement."       Finally, the judge noted, "it is unlikely

that such evidence would change a jury's verdict had [d]efendant's

case gone to trial" given "all of the other highly inculpatory

evidence[.]"

       This appeal followed.        On appeal, defendant raises a single

argument for our consideration:

            POINT I

            THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S
            MOTION FOR PERFORMANCE OF FORENSIC DNA TESTING
            AND   ASSIGNMENT    OF   COUNSEL,    VIOLATING
            DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL
            RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

                                       6                               A-2515-15T4
     We defer to the factual findings of the trial court so long

as they are supported by "sufficient credible evidence present in

the record."     State v. Reece, 222 N.J. 154, 166 (2015) (quoting

State v. Locurto, 157 N.J. 463, 470-71 (1999)).           However, our

review of a trial court's legal determinations is de novo.        Reece,

supra, 222 N.J. at 167.       Defendant argues that contrary to the

judge's ruling, he "has met every requirement warranting relief"

under N.J.S.A. 2A:84A-32a.3     We disagree and affirm substantially

for the reasons expressed in Judge McBride's written opinion.           We

add only the following comments.

     N.J.S.A. 2A:84A-32a allows one convicted of a crime who is

serving a term of imprisonment to move for forensic DNA testing

of evidence probative of guilt or innocence.        State v. Peterson,

364 N.J. Super. 387, 390 (App. Div. 2003). The DNA testing statute

imposes   both   procedural   and   substantive   requirements   upon    a




3
  For the first time on appeal, defendant also seeks DNA testing
of a "bite mark on [the] victim."       We "'decline to consider
questions or issues not properly presented to the trial court when
an opportunity for such a presentation is available unless the
questions so raised on appeal go to the jurisdiction of the trial
court or concern matters of great public interest.'" Zaman v.
Felton, 219 N.J. 199, 226-27 (2014) (quoting State v. Robinson,
200 N.J. 1, 20 (2009), certif. denied, 226 N.J. 213 (2016)).
Defendant did not raise this issue before the trial judge and it
is not jurisdictional in nature, nor does it substantially
implicate the public interest.

                                    7                            A-2515-15T4
defendant seeking DNA testing.            Procedurally, a defendant must

first meet the following requirements:

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

           (b) explain in light of all the evidence, how
           if the results of the requested DNA testing
           are favorable to the defendant, a motion for
           a new trial based upon newly discovered
           evidence would be granted;

           (c) explain whether DNA testing was         done at
           any prior time, whether the defendant      objected
           to providing a biological sample           for DNA
           testing, and whether the defendant         objected
           to the admissibility of the DNA             testing
           evidence at trial. . . . ;

           (d) make every reasonable attempt to identify
           both the evidence that should be tested and
           the specific type of DNA sought; and

           (e) include consent to provide a biological
           sample for DNA testing.

           [N.J.S.A. 2A:84A-32a(a)(1).]

    If    the    defendant    meets   the   procedural   requirements    of

N.J.S.A. 2A:84A-32a(a)(1), then the defendant is entitled to a

hearing pursuant to N.J.S.A. 2A:84A-32a(b), wherein the trial

court    shall    determine    whether      the   following   substantive

requirements 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

                                      8                           A-2515-15T4
         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 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 required 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 [the] defendant's burden to establish that all of the

elements necessary for DNA testing have been fulfilled."      State

                               9                            A-2515-15T4
v. Armour, 446 N.J. Super. 295, 311 (App. Div. 2016), certif.

denied, 228 N.J. 239 (2016).

      Defendant argues he has satisfied the statutory criteria

because his identity was a significant issue in the case and he

asserts the judge applied an incorrect standard by relying on the

State's overwhelming evidence.       We disagree.     The proofs necessary

to   establish   whether    the   identity    of    the    defendant    was    a

"significant issue" in the case were analyzed in Peterson, supra,

364 N.J. Super. at 394. In Peterson, we explained N.J.S.A. 2A:84A-

32a(d)(3)   "does   not    specify   that    the    identification     of   the

defendant as the perpetrator must have been established by any

particular form of evidence."           Id. at 395.       Additionally, "the

strength of evidence against a defendant is not a relevant factor

in determining whether his identity as the perpetrator was a

significant issue."       Id. at 396.     Rather,

            [t]he underlying objective of N.J.S.A. 2A:84A-
            32a--to provide an opportunity for exoneration
            of an innocent person through the testing of
            evidence by a highly reliable scientific
            methodology that was not available at the
            original trial--may be served in any case
            where there is a genuine question concerning
            the identity of the perpetrator. Therefore,
            we conclude that the requirement of N.J.S.A.
            2A:84A-32a(d)(3) that "identity" must have
            been a "significant issue" at defendant's
            trial before post-conviction DNA testing will
            be ordered does not turn on the form of
            evidence the State relied upon to prove the
            perpetrator's identity.

                                     10                                A-2515-15T4
          [Id. at 395.]

     Here, we conclude defendant's motion was properly denied

because defendant failed to "explain why the identity of the

defendant was a significant issue in the case[.]" N.J.S.A. 2A:84A-

32a(a)(1)(a).   Likewise, defendant failed to "explain in light of

all the evidence, how if the results of the requested DNA testing

[were] favorable to [him], a motion for a new trial based upon

newly discovered evidence would be granted[.]"    N.J.S.A. 2A:84A-

32a(a)(1)(b).   In this regard, to meet the standard for "a new

trial based on newly discovered evidence, . . . defendant must

show that the evidence is . . . 'material . . . and not merely

cumulative[,] . . . impeaching[,] or contradictory[;] . . . and

. . . that [the evidence] would probably change the jury's verdict

if a new trial were granted.'"    Peterson, supra, 364 N.J. Super.

at 398 (quoting Carter, supra, 85 N.J. at 314).        Further, as

relevant here, defendant must show that the evidence was discovered

after he pled guilty "and was not discoverable by reasonable

diligence beforehand[.]"   State v. Ways, 180 N.J. 171, 187 (2004)

(quotation and citation omitted).

     We have construed the analysis of the "new trial" standard

in the context of the DNA testing statute to "not require a

defendant to prove the DNA results will be favorable, rather it


                                 11                         A-2515-15T4
must only be established that there is a reasonable probability

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

to   the   defendant."      Armour,   supra,       446   N.J.   Super.   at   312

(quotation    and   citations   omitted).          However,     in   determining

whether there exists a reasonable probability that a new trial

would be granted, we may consider the extent and nature of the

State's proofs and "[a] defendant cannot compel the State to

release the evidence for DNA testing where the evidence . . . was

overwhelming    and   the    defendant       did   not    present    a   defense

. . . that would be consistent with the explanation the DNA

[testing] results might supply."           State v. Reldan, 373 N.J. Super.

396, 402-03 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005).

      Simply stated, we cannot draw the connection suggested by

defendant that a favorable outcome in connection with the testing

of the ski mask would exonerate him.           Even if the DNA of a person

other than defendant was found on the ski mask, there is no

reasonable probability that the discovery of such proof would

establish his entitlement to a new trial.                   In Peterson, the

challenged forensic evidence was used to identify the defendant

as the perpetrator (i.e., hairs found on or near the victim, semen

found on the outside of the victim's clothing and blood found

under the victim's fingernails).           Id. at 392.    There, the identity

of the murderer was likely and almost certainly the person whose

                                      12                                 A-2515-15T4
DNA was found at the crime scene.    Ibid. Here, the evidence sought

to be tested is immaterial to the issue of defendant's identity

as the perpetrator and would not constitute grounds for a new

trial.   Even the most favorable retesting outcome must be weighed

against the State's compelling proofs and would be overshadowed

by the probative evidence of defendant's guilt. For those reasons,

we agree with Judge McBride that defendant has not made the

necessary showing pursuant to N.J.S.A. 2A:84A-32a(a)(1)(a) and

(b).

       Affirmed.




                                13                           A-2515-15T4
