SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1403-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD PRATOLA,

Defendant-Appellant.

________________________

Submitted October 13, 2020 – Decided

Before Judges Hoffman and Smith.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. SGJ-2-80.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Richard Sparaco, Designated Counsel, on the 

brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (William P. Cooper-Daub, Deputy Attorney

General, of counsel and on the brief; Lila B. Leonard, 

Deputy Attorney General, on the brief).

Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE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.

November 19, 2020
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PER CURIAM

Defendant Donald Pratola appeals from an August 17, 2018 Law Division 

order denying his post-conviction motion to compel the submission of DNA 

evidence to the Combined DNA Index System (CODIS) under N.J.S.A. 2A:84A32(a). We affirm. 

On January 11, 1979, three men broke into a funeral home in Irvington 

and while attempting to commit a theft, shot and killed the funeral home's 

proprietor, Henry Rezem. In October of 1980, a grand jury returned an 

indictment, charging defendant with the murder of Mr. Rezem as well as 

attempted robbery and related crimes. 

At defendant's trial, which commenced on March 16, 1981, the State 

presented testimony from the victim's wife, Hedwig Rezem, who provided outof-court and in-court identifications of defendant. Ms. Rezem testified that on 

the morning of the murder, after hearing a "pop" and finding her husband shot, 

she observed three men fleeing the funeral home. One of the three men, whom 

Ms. Rezem identified as defendant, briefly lingered behind, and pointed a gun 

at her. Ms. Rezem stated she looked defendant in the eyes for three to four 

seconds from a distance of eighteen feet, before he turned and fled with the 

others, whom she did not see. 
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Defendant's former girlfriend, Barbara Hammed, also testified against 

him. Hammed testified that defendant had confessed his involvement in the 

murder and even showed her his means of entry into the funeral home. Hammed 

further identified the murder weapon as belonging to defendant and testified that 

defendant had shown her a pair of handcuffs in his vehicle on one occasion. The 

perpetrators had used handcuffs to restrain Mr. Rezem before shooting him. The 

State also produced a recording, obtained using a judge-sanctioned wiretap, of 

defendant telling Hammed over the phone, "that guy in the funeral home, that 

was the topper." 

Another witness, Anthony Coppolla, testified that one week before the 

murder, defendant solicited his cooperation in an armed robbery and that 

afterwards, defendant informed him it had gone poorly because the occupants 

had been found at home. Defendant also admitted various details of the crime 

to Coppolla as well as his financial motive for the crime and his intent to change 

his hairstyle to avoid being linked to a police composite of the perpetrator. 

At trial, defendant claimed Hammed fabricated her testimony as revenge 

after discovering defendant was in another relationship. He also explained that 

he had told Hammed he was involved in the crime, but had only done so to
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impress her. Both defendant and his wife testified that they were together at a 

gas station and then eating lunch at the time the crime occurred. 

At the conclusion of the trial, in March of 1981, the jury convicted 

defendant of seven charges, including murder and attempted robbery. On May 

18, 1981, the trial court sentenced defendant to life in prison with an additional 

concurrent sentence. Defendant was released on parole on June 26, 2018. 

Since 1981, defendant has made repeated attempts to vacate his 

conviction. In 2013, we reviewed defendant's then-latest application for postconviction relief (PCR), and in affirming the trial court's denial of his 

application, we noted the lengthy procedural history of defendant's attempts to 

obtain PCR. See State v. Pratola, No. A-3729-10T4 (App. Div. July 31, 2013) 

(slip op. at 1-3). We need not recount all of defendant's attempts at postconviction relief here, beyond what is relevant to this appeal. 

In 2007, defendant filed his initial motion for DNA testing under N.J.S.A. 

2A:84A-32a. On April 13, 2009, Judge Robert Gardner granted the motion and 

issued an order compelling the State to produce evidence and submit it for DNA 

testing. Judge Gardner found defendant's application met all the required 

elements to compel DNA testing under N.J.S.A. 2A:84A-32a and ordered 
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various items of physical evidence recovered from police storage and sent to 

Orchid Cellmark Laboratory (Cellmark) in Dallas, Texas.

On April 29, 2009, before any evidence was submitted to Cellmark, 

defendant sent a letter to Judge Gardner requesting the order be amended to 

change the testing laboratory from Cellmark to National Medical Service in 

Pennsylvania, citing concerns over shipping the evidence to Dallas. The State 

sent a letter objecting to defendant's request and suggesting it would consent to 

sending the evidence to either the New Jersey State Police (NJSP) Forensic 

Science Laboratory or to Bode Technology Group in Virginia if defendant 

remained opposed to Cellmark as the testing lab. However, on May 5, 2009, 

defendant consented to sending the evidence to Cellmark, pursuant to the 

original order. 

On May 3, 2010, Cellmark sent the parties a report detailing the results 

of the DNA testing. It reported that three pieces of evidence produced DNA 

profiles: L-brackets, broken glass, and tape on the broken glass, all recovered 

from a broken window identified as the perpetrator's point of entry into the 

Rezem Funeral Home. The DNA profiles from all three items were "a mixture 

consistent with at least two individuals, including at least one unknown male." 

With respect to the DNA found on the L-brackets and broken glass, the victim, 
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Mr. Rezem, and defendant were excluded as possible contributors. With respect 

to the tape, Mr. Rezem was excluded, but no determination could be made as to

whether defendant was a possible contributor. 

Upon receipt of the lab report, defendant sought to have the DNA profiles 

submitted to CODIS, the national DNA databased maintained by the Federal 

Bureau of Investigation, to see whether the DNA profiles matched with any 

offenders in the CODIS database, who could then be identified as the true 

perpetrators of Mr. Rezem's murder and thus exonerate defendant. The State

opposed this request, indicating the data obtained from Cellmark could not be 

submitted to the CODIS database because Cellmark did not meet the standards 

required by National DNA Index System (NDIS) rules and because the swabbing 

contained DNA from at least three individuals, and mixtures of DNA from more 

than two individuals could not be entered into the CODIS database. According 

to the State, DNA mixtures of more than two individuals could only be compared 

with specific target suspects.

Consequently, on May 18, 2010, defendant requested Judge Gardner order 

a comparison of the entry-point DNA profiles with Reginald Curry, a suspect in 

several local crimes at the time of the murder, as well as with John DeRosa and 

Anthony Coppolla, other suspects in defendant's case. Judge Gardner ordered 
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DeRosa and Curry to submit to a buccal swab, and after testing their 

submissions, Cellmark determined the DNA comparison excluded both DeRosa 

and Curry as matches to the DNA profiles obtained from the entry-point

evidence. Because Coppolla was deceased at this point, defendant hoped to 

obtain a sample of Coppolla's daughter's DNA. However, it appears no sample 

from Coppolla's daughter was ever obtained, since at that time, defendant's 

attorney moved to withdraw defendant's DNA-related requests for relief, 

without prejudice, so she could refile following an opportunity to deal with 

personal issues and perform additional investigation. Judge Gardner granted her 

motion. 

On November 9, 2015, the New Jersey legislature amended N.J.S.A. 

2A:84A-32a, adding section subsection (l), which provides in part:

If evidence tested at a non-NDIS-participating 

laboratory pursuant to this section reveals a DNA 

profile that is not that of the eligible person or the 

victim, the court shall direct the prosecuting agency 

appearing on the motion to request that the New Jersey 

State Police Office of Forensic Services DNA 

Laboratory or other NDIS-participating laboratory 

involved in the matter submit the profile to CODIS, if 

the requirements and prerequisites for acceptance and 

submission are met, to determine whether it matches a 

DNA profile of a known individual or a DNA profile 

from an unsolved crime.
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In light of this amendment, on April 24, 2017, defendant filed an 

application to reopen his motion for DNA submission to CODIS. On June 20, 

2017, he refiled the motion, evidently because the court did not receive his initial 

motion. Judge Mark Ali heard defendant's motion on February 5, 2018 and the 

following day, ordered the Office of the Attorney General to direct the NJSP 

Office of Forensic Services DNA Laboratory to submit the DNA profiles 

obtained by Cellmark to CODIS to search for matches in the index.

NJSP refused to comply with the court's order, on the basis that Cellmark, 

rather than the State Police laboratory, tested the DNA profiles and because the 

policies and procedures of Cellmark did not comply with the necessary 

requirements for submission to CODIS. The State adopted the NJSP's position 

and claimed profiles could not be submitted to CODIS because CODIS would 

not accept them. The State also implied defendant was at fault for rendering the 

profiles unacceptable by arguing that defendant knew the policies and 

procedures of Cellmark were non-compliant and knew the risks associated with 

testing at Cellmark, yet agreed to send the evidence for testing at a noncompliant lab. On May 14, 2018, the CODIS State Administrator sent Judge Ali 

a letter explaining that the DNA profiles generated by Cellmark failed to meet 
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the requirements for submission to CODIS, therefore, the profiles could not be 

uploaded. 

Judge Ali heard arguments on defendant's motion for a new trial based on 

newly discovered evidence on August 17, 2018. He also considered whether the 

DNA profiles provided by Cellmark could be submitted to CODIS. 

At the motion hearing, defendant maintained that, since the DNA profiles 

obtained from the entry-point evidence excluded him as a contributor, 

submission to CODIS was necessary because the profiles might match to a 

known offender, which would cast doubt on defendant's identity as the murderer 

and therefore, warrant a new trial. Defendant also argued Judge Gardner's 2009 

order to test the entry-point evidence bound Judge Ali to order the DNA profiles 

be submitted to CODIS. The State responded that Judge Gardner's order was 

just that, an order to test DNA, which Cellmark tested in compliance with that 

order. Additionally, the State maintained it was impossible to upload the 

Cellmark profiles to CODIS, but argued even if it were possible, the results 

would not warrant a new trial because "there is no possible outcome of that test 

that would exculpate [defendant]."

After hearing the parties' arguments, Judge Ali denied defendant's motion 

to compel submission of DNA evidence to CODIS. In his oral decision, Judge 
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Ali noted that to compel DNA testing under N.J.S.A. 2A:84A-32a, a defendant 

must satisfy eight statutory prerequisite. The judge found defendant failed to 

meet the fifth prerequisite, which required defendant show "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." N.J.S.A. 2A:84A-32a(d)(5). Judge Ali determined 

that even if the DNA profile matched with Anthony Coppolla, who testified 

against defendant at his trial, the State's evidence would remain strong enough 

to convict defendant beyond a reasonable doubt, even without Coppolla's 

testimony. 

On appeal, defendant argues:

THE COURT ERRED IN DENYING DEFENDANT'S 

MOTION TO UPLOAD THE DNA PROFILES 

PROVIDED BY CELLMARK INTO CODIS, 

THEREBY VIOLATING DEFENDANT'S 

CONSTITUTIONAL RIGHTS TO DUE PROCESS 

AND A FAIR TRIAL, INCLUDING THE RIGHT TO 

PRESENT A DEFENSE.

In a supplemental pro se brief, defendant also raises the following arguments: 

POINT ONE

IN 2015 FORMER GOVERNOR CHRISTIE 

ORDERED ALL PERSON THAT HAVE (DNA) IN 

THEIR CASE HAVE THE RIGHT TO HAVE THERE 
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(DNA) SENT TO STATE & FEDERAL CODIS FOR 

A MATCH[;]

. . . . 

POINT TWO

ON FEBRUARY 24, 2010, DEFENDANT PRATOLA 

APPEARED IN COURT BEFORE JUDGE ROBERT 

GARDNER, J.S.C. IN ESSEX COUNTY FOR A 

CONFERENCE HEARING ON THE (DNA) THAT 

WAS FOUND AT THE SCENE OF THE CRIME ON 

JANUARY 11, 1979[.]

N.J.S.A. 2A:84A-32a imposes certain requirements upon a defendant who 

seeks to have DNA testing conducted after he has been convicted of a crime. 

The applicable portion of the statute in this respect is subsection (d), which 

provides as follows: 

The court shall not grant the motion for DNA testing 

unless, after conducting a hearing, it determines that all 

of the following 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 it has not been substituted, 

tampered with, replaced or altered in any 

material aspect;
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(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 

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

added).]

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 

satisfied. N.J.S.A. 2A:84A-32a(d). In many instances, as here, the pivotal 

factor lies under 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:

[T]here may be a variety of 'favorable' results of DNA 

testing, some of which would not raise a sufficient 

question concerning the integrity of the jury verdict to 

require a new trial, but others of which would raise such 

serious doubt concerning the fairness of the trial and a 

convicted person's guilt that a new trial would be 

required.

[Id. at 397.]

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.
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(quoting N.J.S.A. 2A:84A-32a(d)(5)); 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).

Having considered the arguments advanced on appeal, in light of the 

record and the applicable law, we reject defendant's arguments and claims of 

error. We concur with Judge Ali's conclusion that defendant failed to "meet the 

'reasonable probability' standard" required by N.J.S.A. 2A:84A-32a(d)(5) to 

compel submission of DNA evidence to CODIS. 

There would be little to no doubt cast on defendant's conviction even if

the DNA profiles were submitted to CODIS and matched with another 

individual. At defendant's trial, the State presented evidence showing defendant 

was one of three accomplices who attempted to burglarize the victim's place of 

business. The two other perpetrators were never identified, and one or both of 

those individuals' DNA could match the profiles found on the entry-point 

evidence. However, such a match would not exonerate defendant as his 

conviction did not depend on him being identified as the individual who literally 

broke the window to enter the funeral home. Rather, the basis for defendant's 

conviction was Ms. Rezem's eyewitness identification of defendant at the crime 

scene, the testimony of two of defendant's acquaintances who claimed defendant 
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confessed his involvement in the robbery and murder to them, and a recording 

of defendant stating "that guy in the funeral home, that was the topper." Thus, 

determining the identity of other persons who potentially conducted the physical 

breaking into the funeral home would be immaterial to the State's proof of 

defendant's involvement and would not in any way rule out that defendant was 

the one who shot Mr. Rezem. 

Likewise, as Judge Ali explained, even if submission of the DNA profiles 

to CODIS revealed the DNA of one of the State's witnesses, Anthony Coppolla, 

to be on the entry-point evidence, such a match would not materially undermine

the proofs of defendant's guilt. Both Ms. Rezem's testimony describing 

defendant pointing a gun at her immediately after shooting her husband and 

Hammed's testimony recounting defendant's admissions to her and connecting

defendant to the murder weapon and handcuffs amounted to overwhelming 

evidence of defendant's guilt. Neither the omission of Coppolla's testimony nor 

the addition of evidence suggesting Coppolla was one of the three accomplices 

involved in the robbery would change the jury's verdict in defendant's trial, 

given the other evidence implicating defendant and the fact that defendant's 

accomplices were never identified. 
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Any match of the entry-point DNA profiles to an offender in CODIS 

would not raise a sufficient question concerning the integrity of the jury verdict

and therefore would not raise a reasonable probability that a motion for a new 

trial would be granted based upon the CODIS results constituting newly 

discovered evidence. 

We find no basis exists to interfere with Judge Ali's denial of defendant's 

motion to submit the Cellmark DNA profiles to CODIS. Any of defendant's 

arguments not specifically addressed lack sufficient merit to warrant discussion 

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

Affirmed.