                    NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2006-14T1

STATE OF NEW JERSEY
                                         APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                              July 19, 2016
v.
                                            APPELLATE DIVISION
RODNEY ARMOUR,

     Defendant-Appellant.
_____________________________________

         Argued April 20, 2016 – Decided July 19, 2016

         Before Judges Alvarez, Ostrer and Manahan.

         On appeal from Superior Court of New Jersey,
         Law Division, Monmouth County, Indictment
         No. 02-12-2454.

         Edward C. Bertucio argued the cause for
         appellant (Hobbie, Corrigan & Bertucio,
         P.C., attorneys; Mr. Bertucio, of counsel
         and on the brief; Elyse S. Schindel, on the
         brief).

         Monica Lucinda do Outeiro, Special Deputy
         Attorney General/Acting Assistant Prosecutor,
         argued the cause for respondent (Christopher
         J.   Gramiccioni,  Acting   Monmouth   County
         Prosecutor, attorney; Ms. do Outeiro, of
         counsel and on the brief).

     The opinion of the Court was delivered by

MANAHAN, J.A.D.

     In this case we address the standard governing a post-

conviction   request   to   retest   fingerprint   evidence      based   on
advances in fingerprint science and expansions of the New Jersey

State Police Automated Fingerprint Identification System (AFIS)

and   Integrated    Automated       Fingerprint      Identification     System

(IAFIS)   databases.     In     particular,     advances       in   fingerprint

science   and   expansions     to    include      more   offenders     in    the

databases increase the possibility that a fingerprint may match

a hitherto unidentified third party.

      Defendant Rodney Armour appeals from an order denying a

motion for post-conviction discovery sought in conjunction with

a motion for a new trial.       He argues that the motion judge erred

by rejecting his request for retesting of a latent fingerprint

taken from the outside of a motor vehicle in which a robbery

occurred, and for which defendant was convicted after a jury

trial.1

      We conclude that the statutory standard governing retesting

of DNA provides a suitable framework for assessing a request for

retesting fingerprints.        Applying that framework, the critical

factor in this case is whether there would be a "reasonable

probability" that defendant would be entitled to a new trial if

the fingerprint retesting were favorable, pursuant to N.J.S.A.

2A:84A-32a(d)(5).      After    reviewing      the    record    evidence,     we


1
  Defendant also argues that he received ineffective assistance
of post-conviction relief (PCR) counsel.



                                      2                                A-2006-14T1
further conclude that even if the latent fingerprint was tested

anew and a third party was identified, defendant would not be

entitled to a new trial in light of the substantial evidence of

guilt   and    the   lack    of     a   proffered     alibi.     Consequently,    we

affirm the motion judge's denial of defendant's motion.

                                           I.

    Defendant        was    found       guilty   by   a   jury   of   second-degree

robbery, N.J.S.A. 2C:15-1(a).              We adopt the essential facts from

our decision affirming defendant's conviction:

                   The robbery was committed around 9 p.m.
              on October 15, 2002, in a shopping center in
              Neptune. The victim drove her car to an ATM
              in the shopping center to transfer funds
              into her checking account.        As she was
              beginning   this   transaction,   a  man   she
              identified at trial as defendant got into
              her car and demanded money.         When she
              withdrew only $5 from her wallet, he said
              "[N]o, that's not enough.     Give me all of
              it."   The victim then gave defendant a $20
              bill, but he said that if she "didn't give
              him all [of her] money he was going to shoot
              [her] in the face."     The victim then asked
              defendant to allow her to complete the
              deposit into her checking account, and he
              agreed.    After the victim completed this
              transaction, defendant directed her to drive
              toward an Eckerd drug store at the south end
              of the mall. When the victim stopped at the
              drug store, defendant told her to give him
              her wallet.    The victim responded that she
              did not know the location of her wallet,
              which she had dropped during the course of
              the robbery.    When defendant was unable to
              find the wallet, he kicked the victim in the
              thigh and punched her in the jaw.        After
              assaulting the victim, defendant got out of



                                            3                              A-2006-14T1
          the car and ran behind the Eckerd towards a
          fence located behind the building.

               In addition to the victim's in-court
          identification of defendant as the robber,
          the State presented the testimony of an
          employee of the Eckerd drug store, Beverly
          Wilson, who walked up to the victim's car
          while the robbery was in progress and saw
          the   victim   struggling  with   defendant.
          Wilson, who had seen defendant in the drug
          store shortly before the robbery, and the
          victim both gave the police descriptions of
          the perpetrator shortly after the crime.
          The State also produced a videotape from an
          Eckerd surveillance camera which showed that
          defendant had been in the drug store around
          the time of the robbery.

               The   night   following   the  robbery,
          Wilson, who was working at a McDonald's that
          night, saw defendant standing in line inside
          the restaurant.   She called the police, who
          responded to the McDonald's while defendant
          was still there.       Wilson then made a
          positive identification of defendant as the
          robber, and the police placed him under
          arrest.

               Defendant did not testify at trial. In
          his defense, defendant relied primarily on
          evidence of inconsistencies between the
          descriptions of the perpetrator's clothing
          that Wilson and the victim gave the police
          after the robbery and the clothes that
          defendant was shown wearing by the Eckerd
          surveillance camera and at the time of his
          arrest.

          [State v. Armour, No. A-5690-03 (App. Div.
          Oct. 4, 2005) (slip op. at 1-3) (Armour I)].

      We recite additional facts adduced at the trial relevant to

our   analysis.    The   victim   was   employed   as   a   nurse   for




                                  4                           A-2006-14T1
approximately        twenty-six     years.         She      gave     a    very    specific

description     of       defendant,      including        minute     details       of    his

appearance and mannerisms.              Her encounter with defendant lasted

for approximately ten minutes.                   During that time, the victim

observed     that       defendant      was   "thin    and      fairly      tall.         His

complexion [was] sort of an ashen gray, a gray pallor.                            His eyes

were sort of sunken and dark circles were around his eyes.                                   He

was shaking."           She also noted that defendant appeared to be in

his early thirties, had a thin mustache, and a "pitted" face

indicative of scarring (possibly from acne).                             The victim was

"scared but not overly scared" of defendant because "[h]e seemed

pathetic, and shaking."             The victim was unable to tell whether

defendant was "Hispanic or light-skinned black" because of his

gray "pallor."

      Wilson    described        the     robber      as    a   light-skinned,           tall

African-American man in his thirties with a thin build.                                 Both

the victim and Wilson testified that defendant was wearing a

hooded sweatshirt.          However, the victim testified that defendant

was   wearing       a    gray   sweatshirt,        and      Wilson       testified       the

sweatshirt     was      "dark[.]"       While     working      her   other       job    at    a

McDonald's, Wilson identified defendant to the police as the

same man she saw twice the previous day because he was wearing

the   same   clothes.           Another      Eckerd       employee       who   identified




                                             5                                     A-2006-14T1
defendant as the man he spoke to, which was recorded in the

video, testified that defendant was wearing "a light black, dark

navy blue type of a sweatshirt."

       After    defendant       was    arrested,      he       was   interrogated       by

Neptune Police Sergeant Michael Emmons.                         Emmons testified at

trial    that        he    advised    defendant      of    the       reason   for     the

investigation, and that the evidence pointed to defendant as the

perpetrator          who    punched    the       victim    during       the     robbery.

According to Emmons, defendant responded that "he never punched

a white woman in her face" despite that Emmons had not revealed

the victim's race to defendant.

       Neptune Police Detective Kevin Devine, the State's expert

in the field of fingerprint examination, testified that a usable

latent fingerprint was found on the exterior of the passenger

door    of     the    vehicle    driven      by    the     victim.        The     latent

fingerprint was sent to AFIS, a database of fingerprints which

includes individuals with criminal records, applicants for gun

permits,     and      government      employees.          No    candidate     list    was

returned by State Police — meaning "the source of [the] latent

print [was] not in their database."                  The latent fingerprint was

also compared with the fingerprints of defendant, the victim and

her boyfriend (who owned the vehicle she was driving).                            Devine

testified that it was determined with 100% probability that the




                                             6                                  A-2006-14T1
latent fingerprint was not a match for defendant, the victim or

her boyfriend.

                                               II.

       After    the    guilty    verdict,           the   trial      judge    "granted     the

State's motion to sentence defendant to an extended term as a

persistent offender and imposed a twenty-year sentence, subject

to parole ineligibility for [eighty-five percent] of that term,

as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2."      Armour I, supra, slip op. at 1.

       We affirmed the conviction but vacated the sentence and

remanded to the trial court for resentencing in conformance with

State v. Natale, 184 N.J. 458, 494-96 (2005).                           Armour I, supra,

slip    op.    at    8-10.      On    remand,        defendant       received      the    same

twenty-year sentence subject to NERA.                         The Supreme Court granted

defendant's petition for certification of our decision in Armour

I, limited to the issue of the sentence, and the matter was

"summarily remanded to the trial court for resentencing in light

of   the    Court's     decision          in   State      v.    Pierce,      188   N.J.    155

(2006)."       State v. Armour, 188 N.J. 259 (2006).                         Following the

second remand, defendant was again sentenced to twenty years

subject to NERA.

       Defendant       subsequently            filed      a    PCR    petition     alleging

ineffective         assistance       of    trial       counsel.         The    now-defunct




                                                7                                   A-2006-14T1
"Project   Freedom    Fund"     (PFF)    represented         him   during    the   PCR

proceedings.       Following oral argument, the PCR judge denied the

petition in an oral opinion.                 Defendant appealed, contending

that both trial counsel and PCR counsel were ineffective.                            We

affirmed the denial in an unpublished opinion substantially for

the reasons set forth in the PCR judge's oral opinion.                       State v.

Armour, No. A-0672-08 (App. Div. Dec. 16, 2010) (slip op. at 3-

5), certif. denied, 206 N.J. 330 (2011).

                                        III.

    Defendant next filed a motion for a new trial on July 29,

2014,    seeking    the   entry    of   an     order   for    submission      of   the

unidentified latent fingerprint to AFIS and IAFIS.                          He argued

that the latent fingerprint could belong to a culpable third

party.     In   support    of     his   argument,      defendant     submitted      an

affidavit from Michael J. Sweedo, a "forensic consultant in the

areas of fingerprint identification, crime scene analysis and

blood pattern analysis[.]"2             Defendant also sought a new trial

based upon ineffective assistance of PCR counsel, relying on

newly discovered evidence that PFF was a sham organization that




2
  Sweedo is a certified latent fingerprint examiner and senior
crime scene analyst.   In his affidavit, he offered information
regarding "significant advances" in AFIS testing as well as
AFIS's connection to the IAFIS database.



                                         8                                   A-2006-14T1
provided ineffective assistance of counsel and had perpetrated a

fraud on the court.3

     The judge denied the motion in an oral opinion on November

21, 2014.    In his decision, the judge concluded "it was not the

intention of the Legislature to include fingerprints" in the DNA

retesting protocol set forth in N.J.S.A. 2A:84A-32a.               He also

reasoned    that   evidence   potentially   linking    "the   fingerprint

found on the passenger door of the victim's vehicle to another

person   would     not   necessarily   establish   [third-party]    guilt.

Although the fingerprint was located where the robber entered

the vehicle, it is reasonable to assume that there were other

people who touched the vehicle in that location."              The judge

noted the victim's testimony was "clear and consistent[,]" and

3
  On August 23, 2011, the Office of the Attorney General filed a
complaint naming PFF and its owner and operator, Bruce S.
Buccolo (collectively the PFF defendants), as defendants.    The
complaint averred that the PFF defendants violated the Consumer
Fraud   Act   and  Regulations  Governing   General  Advertising
Practices, and that they engaged in acts of misrepresentation
and misleading advertisements to solicit clients. Specifically,
the complaint alleges that the PFF defendants "cynically
exploited" inmates and their families by demanding up-front
payments and then performing little work (sometimes by the use
of non-attorneys or disbarred attorneys) or no work at all.    A
final judgment by default in the amount of $2.1 million, plus
additional fees and costs, was entered against the PFF
defendants on October 9, 2012.   Defendant's PCR was handled by
an attorney, Robert F. Conley, through PFF. On or about October
7, 2013, defendant received correspondence from the Office of
the Attorney General identifying defendant as a potential
recipient of restitution if any assets were seized pursuant to
the judgment.



                                       9                           A-2006-14T1
that the jury "was fully aware that the fingerprint on the car

did   not    belong   to   defendant,        and    yet   they   convicted      him

[anyway]."      The   judge    did    not    address      defendant's     argument

regarding    ineffective      assistance       of   counsel.       This     appeal

followed.

      Defendant raises the following arguments on appeal:

                                     POINT I

            THE    TRIAL    COURT    IMPROPERLY   DENIED
            [DEFENDANT'S] MOTION REQUESTING AN ORDER FOR
            THE SUBMISSION OF THE UNIDENTIFIED LATENT
            FINGERPRINT INTO THE AFIS AND IAFIS SYSTEMS,
            AND THE APPELLATE DIVISION SHOULD REVERSE
            THE TRIAL COURT'S DECISION AND ORDER THAT
            THE PRINT BE SUBMITTED INTO THE AFIS AND
            [IAFIS] SYSTEMS.

                                     POINT II

            THE    TRIAL    [COURT]  IMPROPERLY    DENIED
            [DEFENDANT'S] MOTION FOR A NEW TRIAL BASED
            ON   NEWLY   DISCOVERED EVIDENCE,   AND   THE
            [APPELLATE] DIVISION SHOULD REVERSE THE
            TRIAL COURT'S DECISION.

                 A. THE TRIAL COURT ERRONEOUSLY
                 DENIED [DEFENDANT'S] ARGUMENT FOR
                 A   NEW    TRIAL  BASED   ON   THE
                 SUBMISSION   OF  THE  UNIDENTIFIED
                 FINGERPRINT.

                 B.    THE TRIAL COURT ERRONEOUSLY
                 FAILED TO ADDRESS [DEFENDANT'S]
                 ARGUMENT FOR A NEW TRIAL BASED ON
                 INEFFECTIVE ASSISTANCE OF [PCR]
                 COUNSEL.




                                        10                                A-2006-14T1
                                              IV.

      Rule 3:20-1 and -2 provide a mechanism for seeking a new

trial following a criminal conviction.                        Rule 3:20-2 permits a

defendant to do so "on the ground of newly-discovered evidence"

at any time.         In particular, a defendant may seek a new trial

where advances in scientific methodology previously unavailable

would likely have changed the result.                        State v. Behn, 375 N.J.

Super.     409,    429    (App.       Div.),       certif.    denied,      183     N.J.   591

(2005).

      A trial court's ruling on a motion for a new trial "shall

not   be   reversed       unless      it    clearly    appears      that    there     was    a

miscarriage of justice under the law."                        R. 2:10-1.         Similarly,

pursuant to Rule 3:20-1, the trial judge shall not set aside a

jury verdict unless "it clearly and convincingly appears that

there was a manifest denial of justice under the law."                                    The

"semantic"        difference         between       "miscarriage      of    justice"       and

"manifest denial of justice under the law" is an "oversight and

should not be construed as providing for a different standard in

criminal    cases        at    the    trial    level    than       that    applicable       to

appellate     review          and    to    civil    cases     at   the     trial    level."

Pressler & Verniero, Current N.J. Court Rules, comment 2 on R.

3:20-1 (2016) (citing State v. Perez, 177 N.J. 540, 555 (2003);

State v. Gaikwad, 349 N.J. Super. 62, 82 (App. Div. 2002)).




                                               11                                   A-2006-14T1
       "[A]   motion   for   a    new   trial    is   addressed    to   the   sound

discretion     of   the   trial     judge,      and   the   exercise     of   that

discretion will not be interfered with on appeal unless a clear

abuse has been shown."4          State v. Russo, 333 N.J. Super. 119, 137

(App. Div. 2000); see also State v. Henries, 306 N.J. Super.

512, 529 (App. Div. 1997); State v. Conway, 193 N.J. Super. 133,

172 (App. Div.), certif. denied, 97 N.J. 650 (1984); State v.

Artis, 36 N.J. 538, 541 (1962).

                                         V.

       This matter was presented to the trial court                     under the

rubric of a motion for a new trial pursuant to Rule 3:20-1 and -

2.     In furtherance of his motion defendant sought retesting of

the latent fingerprint pursuant to N.J.S.A. 2A:84A-32a to -32d

(the    DNA   retesting      statute),        which   governs     post-conviction

retesting of forensic DNA evidence.               We commence our discussion




4
  Defendant argues that our review should be de novo.         We
disagree.   A trial court's decision regarding N.J.S.A. 2A:84A-
32a is premised upon the court's judgment and discretion. See,
e.g., N.J.S.A. 2A:84A-32a(d)(5) (requiring the trial court to
evaluate the weight of evidence "in its discretion" and "whether
or not it was introduced at trial" in relation to presumably
favorable DNA testing).   Thus, we discern no basis to deviate
from the abuse of discretion standard on motions for a new trial
— the relief sought by defendant.     However, our review of a
trial court's legal determinations, such as the motion judge's
conclusion that N.J.S.A. 2A:84A-32a was inapplicable, is de
novo. See State v. Reece, 222 N.J. 154, 167 (2015).



                                         12                               A-2006-14T1
by    addressing     the    statutes     that    govern    the    testing      and

cataloguing of DNA and fingerprint evidence.

       Law enforcement is required to record fingerprints under

the following circumstances:

            immediately upon the arrest of any person
            for an indictable offense, or for any of the
            grounds specified in paragraph (1), (2), (3)
            or (4) of subsection [(a)] of section 5 of
            [N.J.S.A.    2C:25-21]  or   of  any   person
            believed to be wanted for an indictable
            offense, or believed to be an habitual
            criminal, or within a reasonable time after
            the   filing   of   a  complaint  by  a   law
            enforcement officer charging any person with
            an indictable offense, or upon the arrest of
            any person for shoplifting, pursuant to
            [N.J.S.A.] 2C:20-11, or upon the arrest of
            any person for prostitution, pursuant to
            [N.J.S.A.] 2C:34-1, or the conviction of any
            other person charged with a nonindictable
            offense, where the identity of the person
            charged is in question[.]

            [N.J.S.A. 53:1-15; see           generally,   N.J.S.A.
            53:1-13 to -20.16.]5

       The collection, testing and cataloguing of DNA samples is

governed by the DNA Database and Databank Act of 1994 (the DNA

Act),    N.J.S.A.     53:1-20.17    to      -20.38.       The    DNA    Act    was

established to enhance law enforcement's ability to detect and

deter    recidivism    "for    certain      violent   crimes"     or    acts   of

delinquency by juveniles which, if committed by an adult, would

constitute    a    crime.     N.J.S.A.      53:1-20.18;   see    also   N.J.A.C.

5
    The fingerprinting statutes do not address DNA testing.



                                       13                               A-2006-14T1
13:81-1.1(b)        ("It    is    the    goal       of    the    DNA    Act    to     assist

[f]ederal,      [s]tate,         and     local        criminal     justice         and     law

enforcement         agencies      in    the        identification,         detection        or

exclusion      of    individuals        who     are      the    subjects      of    criminal

investigations or prosecution.                     Identification, detection and

exclusion may be facilitated by the DNA analysis of biological

evidence left by the perpetrator of a crime and recovered from

the crime scene.").

      In pertinent part, N.J.S.A. 53:1-20.20(g) states "[e]very

person convicted or found not guilty by reason of insanity of a

crime shall have a blood sample drawn or other biological sample

collected for purposes of DNA testing."                         Once the DNA samples

are   drawn    and    their      identification           characteristics          recorded,

they are "stored and maintained in the State DNA databank[,]"

and are also "forwarded to the [Federal Bureau of Investigation

(FBI)] for inclusion in [the FBI's Combined DNA Index System]."

N.J.S.A.      53:1-20.21;        see    also    N.J.S.A.        53:1-20.19;        State    v.

O'Hagen,      189    N.J.   140,       148-49      (2007).        The   record       of    the

identification characteristics are "stored and maintained in the

State DNA database . . . ."              Ibid.

      The     procedures         for     the        "submission,        identification,

analysis and storage of DNA samples and typing results of DNA

samples submitted under the [DNA Act]" are regulated pursuant to




                                              14                                    A-2006-14T1
N.J.A.C. 13:81-1.1 to -7.1 (the regulations).                     N.J.A.C. 13:81-

1.1; N.J.A.C. 13:81-1.3 ("These rules apply to the DNA samples

taken    from    offenders     for   offenses     covered    in   N.J.S.A.     53:1-

20.20.").        "Offender[s]"       obligated    to    submit    DNA    samples    in

accordance      with     the   regulations     include      "persons,     including

juveniles, who meet the criteria [set forth] in N.J.S.A. 53:1-

20.20 . . . ."            N.J.A.C. 13:81-1.2; N.J.A.C. 13:81-1.4(a)(8)

("The obligation to submit a DNA sample shall be imposed upon

. . . [p]ersons who are convicted on or after September 22,

2003[,] of crimes . . . .").

    The DNA retesting statute was enacted in 2001 and amended

in 2015 without the inclusion of fingerprint testing.                      L. 2001,

c. 377, § 1, § 3; L. 2015, c. 127, § 1, § 2, § 3.                        An initial

draft    of     an     Assembly   bill    on     DNA    retesting       contemplated

fingerprint testing in addition to DNA testing.                   Assembly No. A-

2178 (March 6, 2000).          However, the fingerprint testing language

was not included in later bills introduced in both the Assembly

and Senate.          Senate No. S-1920 (December 4, 2000); Assembly No.

A-3996    (December       6,   2001);    Senate   No.    S-1365     (February      27,

2014); Assembly No. 1678 (pre-filed for introduction in the 2014

session).       No explanation for the removal of fingerprint testing

from the original bill was offered in the statements attached to

the subsequent bills or the legislation enacted in L. 2001, c.




                                          15                                A-2006-14T1
377, § 1.6      Senate Judiciary Committee, Statement to S-1920 (June

28,    2001);    Assembly      Judiciary    Committee,       Statement    to    S-1920

[First     Reprint]       (December      13,      2001);      Assembly    Judiciary

Committee, Statement to A-3996 (December 13, 2001).

       We have previously recognized the qualitative differences

between fingerprint and DNA evidence.                       A.A. ex rel. B.A. v.

Attorney Gen. of N.J., 384 N.J. Super. 67, 96-97 (App. Div.

2006), aff’d, 189 N.J. 128 (2007); State v. O'Hagen, 380 N.J.

Super. 133, 146-47 (App. Div. 2006), aff’d, supra, 189 N.J. at

165.     Nevertheless, the DNA Act notes "a compelling parallel

between the taking of DNA and fingerprinting," N.J.S.A. 53:1-

20.18,     and     the      regulations         require      the     submission        of

fingerprints      in     addition   to     DNA    by    a    qualifying   offender,

N.J.A.C.     13.81-2.1(c),       (e),    and     (f).       The    regulations     also

govern the analysis and storage of DNA                      samples obtained and

tested pursuant to the DNA retesting statute.                       N.J.A.C. 13:81-

7.1.

       Considering       the    legislative       and     regulatory     commonality

regarding retesting of DNA and fingerprints in conjunction with

the absence of a fingerprint retesting statute, we are guided in

6
  We note that the original bill introduced by the Assembly was
"modeled after an existing Illinois law[,]" Assembly No. A-2178
(March 6, 2000), while the subsequent version enacted as L.
2001, c. 377, § 1 was "modeled after a recently enacted law in
California." Senate No. S-1920 (December 4, 2000).



                                           16                                  A-2006-14T1
our analysis by application of the DNA retesting statute.                   In re

Petition of Smith, 114 N.J. Super. 421, 433 (App. Div.) ("The

absence of statutory guidance . . . necessitates a practical

approach to the problem.           In this respect we are guided by the

actions of the Legislature in other related areas."), certif.

denied, 59 N.J. 263 (1971); see also, Groh v. Groh, 439 N.J.

Super. 186, 189-95 (Law Div. 2014) (applying divorce law to

adjudicate dissolution of a civil union where the New Jersey

Civil     Union    Act    was     silent    on   the     no-fault     ground    of

irreconcilable differences); Filgueiras v. Newark Pub. Sch., 426

N.J.    Super.    449,   468-75    (App.    Div.)   (applying   federal     Civil

Rights Act where the New Jersey Civil Rights Act was silent on

an issue implicating substantive due process), certif. denied,

212 N.J. 460 (2012); Casey v. Brennan, 344 N.J. Super. 83, 106

(App. Div.) (noting that "we frequently look to Delaware law for

guidance or assistance" when considering corporate law issues of

first impression), certif. denied, 170 N.J. 389 (2001).                   We are

mindful    that    the   motion     judge    concluded    the   DNA    retesting

statute was inapplicable.           Notwithstanding, we may "affirm the

trial court's decision on grounds different from those relied

upon by the trial court."            State v. Heisler, 422 N.J. Super.

399, 416 (App. Div. 2011).




                                       17                                A-2006-14T1
      N.J.S.A. 2A:84A-32a(a) states that "[a]ny eligible person

may   make   a    motion    before      the       trial   court   that     entered   the

judgment     of   conviction      for       the    performance     of    forensic    DNA

testing."        Both the DNA retesting statute and the regulations

specifically       contemplate        the     retesting     of    DNA    recorded    and

retained     pursuant      to   the    DNA     Act.       N.J.S.A.      2A:84A-32a(k);

N.J.A.C. 13:81-1.1(a).7           "The [DNA retesting] statute applies

broadly to any individual who was convicted of a crime and is

currently serving a sentence."                State v. Reldan, 373 N.J. Super.

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

The motion shall not be granted unless, following a hearing, the

defendant establishes the following:

             (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;




7
  We note parenthetically that defendant is subject to the
requirements of the DNA Act and the concomitant regulations
because his conviction qualifies him as both a "person" and as
an "offender" required to submit a DNA sample pursuant to
N.J.S.A. 53:1-20.20(g), as well as N.J.A.C. 13:81-1.2, -1.3 and
-1.4(a)(8).



                                             18                                A-2006-14T1
         (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   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.     See State v.

Peterson, 364 N.J. Super. 387, 392-93 (App. Div. 2003) (holding

that the DNA retesting statute "sets forth eight conditions a




                              19                        A-2006-14T1
convicted   person    must     establish    to     be     entitled    to     such

testing[.]").

    Here,    the   viability    of   the   latent       fingerprint    and    its

availability for accepted scientific testing via AFIS and IAFIS

is not at issue.      See N.J.S.A. 2A:84A-32a(d)(1), (2), and (7).

The State does not challenge defendant's assertions that the

AFIS database has expanded since the time the latent fingerprint

was tested, or that the latent fingerprint was never submitted

for IAFIS testing.    See N.J.S.A. 2A:84A-32a(d)(6).             Nor does the

State   oppose   defendant's   application       based    on   allegations    of

delay, see N.J.S.A. 2A:84A-32a(d)(8), or any other procedural

infirmity, see N.J.S.A. 2A:84A-32a(a).            Defendant has professed

his innocence throughout the course of these proceedings.                      He

challenged the eyewitness identifications at trial.                  Therefore,

while the proofs at trial were substantial, defendant has made a

prima facie showing that the latent fingerprint is                    at least

material to the issue of defendant's identity as the robber.

See N.J.S.A. 2A:84A-32a(d)(3) and (4).

    We construe our decision to be rooted in an analysis of

N.J.S.A. 2A:84A-32a(d)(5), which 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 favorable to the




                                     20                                A-2006-14T1
defendant."      Reldan,      supra,       373    N.J.     Super.       at     402   (citing

Peterson,     supra,    364       N.J.     Super.    at        396-97).         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."                         State v. DeMarco,

387 N.J. Super. 506, 517 (App. Div. 2006) (quoting Peterson,

supra, 364 N.J. Super. at 396-97).

      In that vein, where 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.                 State v. Carter, 85 N.J. 300,

314 (1981); see also State v. Ways, 180 N.J. 171, 187-93 (2004).

In light of our analysis of N.J.S.A. 2A:84A-32a(a) and N.J.S.A.

2A:84A-32a(d)        (excluding            subsection            (d)(5)),            it     is

uncontroverted       that    the    issue        presented       here     regarding        the

latent      fingerprint      is     "material[,]"          and      that        given      the

undisputed advances in AFIS and IAFIS the results would not have

been reasonably discovered prior to or during trial.                           Ibid.

      Given the difficulty of anticipating the outcome of a DNA

(or   fingerprint)       test,      "the     trial       court     should        postulate

whatever     realistically        possible        test    results       would        be   most




                                            21                                       A-2006-14T1
favorable to defendant in determining whether he [or she] has

established    that      'favorable'       DNA      testing       'would       raise     a

reasonable probability . . . a motion for a new trial . . .

would be granted[.]'"          DeMarco, supra, 387 N.J. Super. at 517

(quoting    Peterson,       supra,   364   N.J.      Super.    at     397   (emphasis

removed)).    "DNA test results that not only tended to exculpate

defendant but to implicate someone else would be evidence of

'the sort that would probably change the jury's verdict if a new

trial were granted.'"          Peterson, supra, 364 N.J. Super. at 398-

99 (quoting Carter, supra, 85 N.J. at 314).

    There     is     a      possibility       that        retesting      the      latent

fingerprint could produce the fingerprint of an individual with

physical characteristics similar to those of defendant, who was

in the area of the robbery at the time it occurred, and who

could be identified as an individual within the criminal milieu

with a history of robbery or related offenses.                           There is no

burden on defendant to demonstrate the likelihood of such a

favorable    result.        Reldan,    supra,       373    N.J.    Super.      at    402;

Demarco,    supra,    387    N.J.    Super.    at    517.         Even   were       we   to

contemplate such a hypothetical outcome of retesting here, for

the reasons stated below we conclude there is no reasonable

probability that defendant could establish his entitlement to a

new trial.




                                        22                                      A-2006-14T1
      To be sure, in the absence of deliberate judicial review of

the trial record which produced the conviction, the ease with

which to conjure a favorable outcome would result in retesting

in every case involving unidentified fingerprints.               In Reldan we

addressed this in the context of the DNA retesting statute by

noting, "[a] defendant cannot compel the State to release the

evidence     for    DNA   testing   where     the   evidence    at   trial    was

overwhelming and the defendant              did not present a defense or

alibi that would be consistent with the explanation the DNA

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

at 402-03 (App. Div. 2004); compare Peterson, supra, 364 N.J.

Super. at 396 (holding that the strength of the State's proofs

is    not    a     relevant   factor    for     consideration        where    the

perpetrator's identity was at issue).

      In this matter, consistent with our holding in Reldan, even

the   most   favorable     retesting   outcome      and   the   "vagaries"      of

eyewitness identification, United States v. Wade, 388 U.S. 218,

228, 87 S. Ct. 1926, 1933, 18 L. Ed. 2d 1149, 1158 (1967), State

v. Henderson, 208 N.J. 208 (2011), must be weighed against the

compelling proofs presented by the State.             These proofs include:

two    reliable       in-court      identifications;        video      evidence

corroborating the witnesses' testimony, authenticated by a third

witness who also interacted with defendant; and a statement made




                                       23                               A-2006-14T1
by defendant during the police investigation.                     Significantly,

the jury was presented with testimony favorable to defendant

that the latent fingerprint was not his — yet that testimony was

not sufficient to produce reasonable doubt in the jurors' minds.

Finally, defendant did not present a viable defense or alibi

"that would be consistent with the explanation the [fingerprint

retesting]      results     might    supply."     Reldan,      supra,    373    N.J.

Super.   at    403.8        Instead,   his    defense   focused    on    purported

inconsistencies        in   the    witnesses'   description     of   defendant's

clothing.      Armour I, supra, slip op. at 3.

    Notwithstanding the known risk of mistaken identification,

see, e.g., Wade, supra, 388 U.S. at 228, 87 S. Ct. at 1933, 18

L. Ed. 2d at 1158, Henderson, supra, 208 N.J. at 208, both the

victim     and     Wilson         provided    comprehensive       and     detailed

descriptions of defendant's appearance and behavior.                    The victim

was an experienced nurse.            She was characterized by the State at

oral argument as the "ideal" witness, who provided a detailed

physical      description     of    defendant    based,   in   part,     upon   her

professional background.            Wilson was able to identify defendant

from her observations of him on the date of the incident and her

8
  A defendant may assert an alibi pursuant to Rule 3:12-2.
Although a defendant has no obligation to assert an alibi, in
the context of a claim for retesting forensic evidence, we adopt
the view expressed in Reldan that the failure to assert or
present an alibi defense is an appropriate consideration.



                                         24                               A-2006-14T1
recall of his appearance when she identified him the following

day.     The trial judge also instructed the jury regarding cross-

racial      identification.          See      Model    Jury     Charge       (Criminal),

"Identification:          In-Court      and     Out-of-Court          Identifications"

(2012); State v. Cromedy, 158 N.J. 112, 132 (1999), modified,

Henderson,       supra,    208   N.J.   at    299.         Juries     are    presumed    to

understand and follow instructions.                   State v. Feaster, 156 N.J.

1, 65 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149

L. Ed. 2d 306 (2001); see also State v. Muhammad, 145 N.J. 23,

52 (1996).

       In    Peterson,     supra,    364      N.J.    Super.     at      396,   which    we

construe narrowly and limited to its facts, we held that "the

strength of the evidence against a defendant is not a relevant

factor      in   determining     whether      his     [or    her]     identity    as    the

perpetrator was a significant issue."                       Therefore, we held that

DNA test results that not only tended to exculpate defendants

but to inculpate another person would be evidence that would

probably change the jury's verdict.                    However, in Peterson the

identity of the murderer was likely (and almost certainly) the

person whose DNA was found at the crime scene. See id. at 392.

In   Reldan,      supra,   373   N.J.      Super.     at     404,   we      distinguished

Peterson by noting that the evidence in Peterson "could not only

exculpate        the   defendant,    but      implicate       another."          We    also




                                           25                                    A-2006-14T1
pointed to the defendant's failure to provide an alibi, which

would have been evidence that "could serve to exculpate the

defendant and potentially change the jury's verdict."                       Ibid.

      Here, similar to Reldan, even if resubmitting the latent

fingerprint for further testing produced a favorable result, it

would not constitute grounds for a new trial as, standing alone,

it   would   neither       exculpate      defendant     nor     inculpate     another

person.      The     latent    fingerprint       at   issue     was   not    the    sole

evidence linking the robber to the crime.                  Nor was it a crucial

piece of evidence, save for the original test result which was

favorable to defendant.          It should not be overlooked that during

trial   there      was    no   argument    raised     by   defendant        about   the

importance      of       the   latent     fingerprint      in     regard      to    its

inculpating a third party.              Thus, we hold defendant has failed

to satisfy both the test set forth in N.J.S.A. 2A:84A-32a(d)(5)

and, by extension, the test in Carter, supra, 85 N.J. at 314.

      Defendant also argues that State v. Velez, 329 N.J. Super.

128 (App. Div. 2000), decided prior to the enactment of the DNA

retesting statute, furnishes a basis for retesting as well.                           In

Velez we reversed an order denying a PCR petition and remanded

for DNA testing.          Id. at 136-37.        We noted "the objective of the

criminal justice system is the fair conviction of the guilty and

the protection of the innocent.                The system fails if an innocent




                                          26                                  A-2006-14T1
person is convicted."         Id. at 137.       By contrast here defendant

sought retesting of the latent fingerprint by motion for a new

trial.       Accordingly,     our   analysis    is     premised    on    the    tests

promulgated in N.J.S.A. 2A:84A-32a(d) and Carter, supra, 85 N.J.

at 314.      Again, by application of those tests, we conclude Velez

does not provide a basis for retesting.

      There are no limitations on the amount of applications that

may be filed under the DNA retesting statute.                   Nevertheless, we

recognize the important public interest regarding finality and

repose.      See, e.g., First Union Nat. Bank v. Penn Salem Marina,

Inc., 190 N.J. 342, 352 (2007); Olivieri v. Y.M.F. Carpet, Inc.,

186   N.J.    511,   521-22    (2006);   Cherry        Hill    Manor    Assocs.   v.

Faugno,   182    N.J.   64,   74    (2004);    State    v.    Burgess,    298   N.J.

Super. 254 (App. Div. 1997), aff’d, 154 N.J. 181 (1998); State

v. Cupe, 289 N.J. Super. 1, 13 (App. Div.), certif. denied, 144

N.J. 589 (1996); Velasquez v. Franz, 123 N.J. 498, 505 (1991);

Zaccardi v. Becker, 88 N.J. 245, 262 (1982) (Schreiber, J.,

concurring and dissenting); Hodgson v. Applegate, 31 N.J. 29, 43

(1959).      Given the nature of the expanding pool of fingerprint

entries   in    AFIS    and   IAFIS,   without       the     requisite   predicate

demonstration pursuant to Carter, supra, 85 N.J. at 314 (as well

as N.J.S.A. 2A:84A-32a), defendants could endlessly seek post-

conviction retesting.          This would occur in the absence of a




                                        27                                 A-2006-14T1
deliberative judicial analysis contemplating that evidence which

resulted    in    conviction       versus       that     potential      evidence          which

defendant    argues     could      result       in   a   new    trial.         Should      the

judicial analysis result in a determination antithetical to a

defendant’s      request,     as   here,     it      would     promote    finality         and

repose.

       Similar to Velez, supra, 329 N.J. Super. at 137, "[w]e

offer no view" as to defendant's innocence or guilt.                                 Rather,

our    decision    is    limited      to        whether      retesting        the        latent

fingerprint "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."

N.J.S.A. 2A:84A-32a(d)(5); see also Carter, supra, 85 N.J. at

314.    After thoughtful attention to the trial record, including

the substantial and compelling proofs presented, the exculpatory

testimony involving the same latent fingerprint and no assertion

by defendant of an alibi, we hold that retesting would not raise

a reasonable probability that a motion for a new trial based

upon newly discovered evidence would be granted.

       In   reaching    our    decision         we   acknowledge,        as     a    general

proposition,      the   difficulty         of    making        an    abstract       decision

regarding     hypothetical         test      results.               Pursuant        to     that

acknowledgement, our decision is predicated upon, and limited




                                            28                                       A-2006-14T1
to, our finding that even a favorable outcome of retesting would

be overshadowed by the probative evidence of defendant's guilt.

      Further, it is not our intent to establish a bright-line

rule where retesting of fingerprints is, or is not, required.

We recognize that such a rule could produce an unfair result

when, unlike here, there is a rational relationship between the

request and evidence that might have played a material role in

the conviction.9

                                           VI.

      Finally,    with       respect   to    defendant's           claim      that     he   was

provided ineffective assistance of PCR counsel relative to his

motion for a new trial, we defer these claims to a PCR petition.

See   R.   3:22-12(a)(2)         (permitting          the    filing     of    a    second     or

subsequent PCR petition if that petition alleges the ineffective

assistance       of        PCR    counsel,        subject          to        certain        time

restrictions);        R.    3:22-4(b).           Although        defendant         relies     on

matters in the record in making his ineffective assistance of

counsel claim, there are extensive proofs outside the record,

particularly      as       it    pertains        to    Conley's         performance         and

defendant's      interaction        with     him,           as   well    as       defendant's




9
  In light of our decision, we conclude that no hearing pursuant
to N.J.S.A. 2A:84A-32a, including testimony from Sweedo, was
required.



                                            29                                       A-2006-14T1
interaction   with   the   PFF   and     Buccolo.10    Thus,   defendant's

ineffective   assistance    claim      is   better    suited   for    a    PCR

petition.

     Affirmed.




10
   As a corollary, although the October 7, 2013 correspondence
from the Office of the Attorney General addressed to defendant
identifies him as a "consumer" and claimant for restitution, it
is unclear whether defendant ever qualified as a recipient or
whether any restitution was received.



                                    30                               A-2006-14T1
