NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Francisco Villegas, who was convicted of first-degree murder and related weapons offenses after a 1995 jury trial, appeals the trial court's denial of his post-conviction motion for DNA testing under N.J.S.A. 2A:84A-32a. In particular, defendant seeks to compel the State to conduct DNA tests on hairs from a white hat retrieved from the murder victim's car, as well as on five empty beer bottles found in a truck that had been parked behind that car at the time of the victim's shooting. Because defendant's application was both procedurally and substantively deficient under the statute, we affirm the trial court's order.

We need not repeat at length the underlying facts, which are detailed in two prior unpublished opinions of this court. See State v. Villegas, No. A-6775-94 (Nov. 7, 1996) (affirming defendant's conviction on direct appeal), certif. denied, 149 N.J. 141 (1997), and State v. Villegas, No. A-4222-01 (Feb. 26, 2004) (affirming the denial of a new trial, post-conviction relief, and defendant's motion to compel certain fingerprint discovery), certif. denied, 180 N.J. 356 (2004). We summarize certain facts relevant to the present appeal.

Defendant and the murder victim, Carlos Ferreras, were acquaintances. Defendant was also acquainted with Ferreras's mother, Isabel Medrano, and his two minor sons, Charles (who was then age thirteen) and Christopher (who was then age eleven).

On the evening of October 31, 1992, defendant went to Medrano's home in Camden. When she hugged defendant upon his arrival, Medrano felt a weapon. Defendant asked Medrano to call her son, telling her that he wanted to borrow money from him. Ferreras soon arrived, and had dinner with defendant and Medrano. After dinner, defendant left the residence.

Ferreras and his sons then began to leave for his own residence in Philadelphia. Ferreras and Charles got into his Honda sedan, which was parked on the street near his mother's house. An argument then ensued between Charles and Christopher, who was still outside of the car, about which boy would ride in the front passenger seat. At that point, the assailant came up, yelled an epithet at Ferreras, and shot him multiple times. Ferreras died from the gunshot wounds. A bloody white knit cap, laced with a bullet hole, was found by the police near the Honda's passenger side door jamb.

Charles identified defendant as the assailant, telling Medrano that "Paquito" (a nickname for defendant) had shot his father. Charles also identified defendant as the shooter from a police photo array, and reaffirmed his identification at trial. Christopher, the younger brother, recalled that the shooter was wearing a white hat and white sneakers, but he saw only part of the shooter's face and could not specifically identify defendant as the shooter.

The police located a blue pickup truck parked directly behind the victim's Honda, as well as keys to the truck in a vacant lot across the street. The truck belonged to Samuel Gutierrez, whose wife had allowed defendant to borrow it at about 3:00 p.m. on the day of the shooting. According to Mrs. Gutierrez, defendant returned to her house between 7:00 and 7:30 p.m. that night. He told her that the truck had been stolen and repeatedly urged her to report its theft to the police.

The police subsequently arrested defendant, and his prosecution and trial ensued. The State's case largely hinged upon non-forensic proof, including Charles's identification of defendant as the shooter, Medrano's detection of a weapon in defendant's possession before dinner, defendant's nexus with the pickup truck, and his unusual behavior preceding and following the shooting. The State did present expert testimony from a forensic scientist from the State Police, who had examined the white cap recovered from the Honda. The expert noted the presence of what he termed as "bullet wipe" around the hole in the hat. The expert also examined hair fragments from the hat and determined some of those fragments shared the same characteristics as hair samples taken from the victim. A comparison of those fragments from the hat with defendant's own hair was inconclusive. No match was found to fingerprints taken from the Honda.

After the jury convicted defendant of all counts of the indictment, the court imposed a life sentence for the murder conviction, subject to a thirty-year parole disqualifier, plus a consecutive five-year term for the possession of a handgun without a permit.

On direct appeal, defendant raised numerous contentions of error, none of which we found to have merit. After the Supreme Court denied his petition for certification, defendant moved for post-conviction relief ("PCR"). In his PCR application, defendant mainly contended that another individual, Eloiso Colon, had allegedly confessed to the murder while on his deathbed. After an extensive hearing that included testimony from several witnesses, Judge Frank Lario, a different judge than had presided over defendant's trial, dismissed the PCR petition. Judge Lario found Colon's deathbed confession lacking in probative value, and also noted numerous inconsistencies in the allegedly-exonerating proofs tendered by defendant. In addition, Judge Lario rejected defendant's argument that he was deprived in various respects of the effective assistance of trial counsel. The judge also denied defendant's request that the State be compelled to obtain fingerprints from Colon's buried corpse. As noted, we affirmed Judge Lario's denial of PCR relief.

Thereafter, in January 2006, defendant filed a pro se motion with the trial court to compel the State to perform DNA testing on five empty beer bottles1 that had been found in the blue pickup truck. At the same time, defendant renewed his request for an analysis of Colon's fingerprints.2 Defendant accompanied his notice of motion with a short certification, in which he maintained his innocence and reiterated that Colon had confessed to the shooting before his death. In a subsequent letter brief submitted by his public defender, defendant expanded his DNA testing request to include the hairs from the bloody white hat that had been recovered from the Honda.

The State acknowledged that it continues to possess the white hat and the bottles, although it does not have a DNA sample from Colon. The State opposed defendant's request for DNA testing, asserting that his application did not meet the procedural and substantive requirements of the applicable statute, N.J.S.A. 2A:84A-32a.

After considering the parties' submissions and the oral arguments of counsel, the trial court denied defendant's motion for DNA testing. In his bench opinion dated July 24, 2009, Judge John T. Kelley3 detailed why defendant's application failed to meet the requirements of the statute. As a preliminary matter, the judge noted that defendant had not provided a verified petition attesting to all of the elements required under N.J.S.A. 2A:84A-32a(a)(1). Beyond that, the judge ruled that defendant had not demonstrated an entitlement to DNA testing under the substantive criteria of N.J.S.A. 2A:84A-32a(d), either as to the hat or the beer bottles. In particular, the judge concluded that defendant had not demonstrated that the evidence sought to be tested was material to the perpetrator's identity, as required under subsection (d)(4) of the statute. The judge also found that defendant had not shown, as required under subsection (d)(5), that if the testing produced the results that defendant hoped for, such proof would be sufficiently exculpatory to warrant a new trial.

Judge Kelley recognized that there was testimony4 at trial that the shooter had worn a white hat or cap. Even so, the judge found no need to test the only cap that was recovered from the crime scene because that cap —— which had a bullet hole and contained fragments of the victim's hair —— clearly had been worn by the victim. The judge found it immaterial that defendant also may have been wearing a white cap that day. He rejected defendant's claims regarding the cap as "speculation on speculation[.]"

Likewise, Judge Kelley discerned no reason to test the beer bottles found in the pickup truck. The truck, which defendant had borrowed that afternoon, was found parked right behind the victim's Honda after the shooting. Defendant wanted the empty bottles tested because he hoped that they might contain the DNA of one or more other individuals who had consumed the beer in the truck. As Judge Kelley pointed out, "if another person's DNA was found on the bottles, it only means that another individual drank from the bottles at some undisclosed time. It would not be material to the issue of the identity of the perpetrator."

Judge Kelley was unpersuaded by defendant's theories attempting to link, through DNA testing, the bloody hat and the empty bottles to Colon. As he noted, Judge Lario had already conducted an extensive evidentiary hearing concerning Colon's supposed confession, and found that confession lacking in credibility. In particular, Judge Kelley referred to Judge Lario's prior findings concerning the discrepancies in Colon's assertions, Colon's potential bias having been raised with defendant, the delay in the confession being proffered after Colon's death, the disparity in size between Colon and defendant, and other problems with the confession's admissibility and probative significance. Judge Kelley noted that these "same credibility issues that Judge Lario found at the hearing on the previous motion would still be present," even if Colon's DNA was discovered through the requested testing.

On appeal, defendant's attorney raises the following argument:

In a supplemental pro se brief, defendant raises similar points:

In his pro se reply brief defendant raises these additional arguments:

The applicable statute, N.J.S.A. 2A:84A-32a, which was enacted in 2001 — several years after defendant's trial and conviction — imposes certain requirements upon a defendant who seeks to have DNA testing conducted after he has been convicted of a crime. At the outset, the statute imposes the following procedural obligations on the moving defendant:

As Judge Kelley correctly recognized, defendant did not submit a verified motion containing all of these necessary elements. His pro se certification accompanying the motion omitted many of the material facets required by the statute, including the explanations called for under subsections (a)(1) and (a)(2). When the judge pointed out these deficiencies at the outset of oral argument, defendant's counsel offered no explanation for permitting them. Nor does defendant attempt to justify this deficiency in his briefs on appeal.

We recognize that defendant's counsel did present a substantive argument for performing the DNA testing in his letter brief to the motion judge. However, that unverified submission from an attorney does not fulfill the requirements of the statute, which contemplates that the convicted person establish his entitlement to relief "under penalty of perjury[.]" N.J.S.A. 2A:84A-32a(a); cf. R. 1:6-6 (disfavoring submissions from counsel tendered in lieu of sworn affidavits from clients). Nor does the letter brief include defendant's consent to provide a biological sample of his own, as required under N.J.S.A. 2A:84A-32a(a)(1)(e), although we presume that he would be amenable to do so.6 Consequently, defendant's motion was procedurally deficient, and subject to rejection on that basis alone.

In any event, like the trial court, we proceed to the substantive aspects of defendant's motion for sake of completeness. The applicable portion of the statute in this respect is subsection (d), which prescribes as follows:

Significantly, the statute does not compel DNA testing to be performed by the State just because such testing might not be inconvenient or burdensome. Instead, the statute directs that the court "shall not grant" a motion to obtain such testing unless "all of" the elements of subsections (d)(1) through (8) have been fulfilled. N.J.S.A. 2A:84A-32a(d). In many instances, as here, the pivotal factors lie under subsection (d)(4), i.e., a significant dispute over identity that could be resolved by the testing, and subsection (d)(5), i.e., whether a new trial would be granted if the DNA results turn out to be "favorable" to the defense. See, e.g., State v. Peterson, 364 N.J.Super. 387, 394-97 (App. Div. 2003).

As we noted in Peterson:

The court "should postulate whatever realistically possible test results would be most favorable to defendant in determining whether he has established that `favorable' DNA testing `would raise a reasonable probability [that] a motion for new trial based upon newly discovered evidence would be granted[.]'" Ibid. (quoting N.J.S.A. 2A:84A-32a(d)(5)) (emphasis added); see also State v. DeMarco, 387 N.J.Super. 506, 513-14 (App. Div. 2006) (applying the "reasonable probability" standard); State v. Reldan, 373 N.J.Super. 396, 404 (App. Div. 2004) (same), certif. denied, 182 N.J. 628 (2005).

Applying these statutory requirements here, we concur with the trial court's rejection of defendant's arguments for testing the hat and bottles, substantially for the cogent reasons expressed in Judge Kelley's bench opinion. Even if the DNA of a person other than defendant or the victim were found on these items, there is not a "reasonable probability" that the discovery of such proof would warrant a new trial.

The white hat taken from the Honda's passenger side door jamb was clearly worn by the victim, as evidenced by the bullet hole. If another person's DNA were found on the hat, a surmise that Judge Kelley regarded as "speculation on speculation," it would not refute the other considerable proof that defendant was the shooter, including Charles's direct observation. The victim could have allowed some one else to wear or come into contact with the hat at a previous time. The absence of defendant's DNA on the hat would not in any way rule out that he was the shooter.

Similarly, there is no reasonable likelihood that a finding of DNA from other persons on the empty beer bottles would affect the proofs of defendant's guilt in any material way. At best, it would only mean that some other person or persons participated in the consumption of the beer, or at least the handling of the beer bottles, at some point in time. The fact that the owner of the truck stated that he himself had not left any bottles in the truck does not affect the evidential analysis.7

The order denying defendant's application under N.J.S.A. 2A:84A-32a is consequently affirmed.8