SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2737-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID AMODIO, 

Defendant-Appellant.

_____________________________

Submitted June 6, 2017 – Decided

Before Judges Yannotti and Sapp-Peterson.

On appeal from Superior Court of New Jersey, 

Law Division, Camden County, Indictment No. 

01-12-3700.

David Amodio, appellant pro se. 

Mary Eva Colalillo, Camden County Prosecutor, 

attorney for respondent (Nancy P. Scharff, 

Assistant Prosecutor, of counsel and on the 

brief).

PER CURIAM

Defendant David Amodio appeals from an order of the Law 

Division dated January 25, 2016, which denied his motion to vacate 

an order entered on December 9, 2015, denying his second petition 

for post-conviction relief (PCR) without prejudice. We affirm. 

NOT FOR PUBLICATION WITHOUT THE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.

June 26, 2017
2 A-2737-15T1

We briefly summarize the relevant facts and procedural 

history. A Camden County grand jury charged defendant with firstdegree murder of Kollin Pimental (Kollin), N.J.S.A. 2C:11-3(a)(1)

or (2) (count one); first-degree murder of Lisa Pimental (Lisa), 

N.J.S.A. 2C:11-3(a)(1) or (2) (count two); first-degree felony 

murder of Kollin, N.J.S.A. 2C:11-3(a)(3) (count three); firstdegree felony murder of Lisa, N.J.S.A. 2C:11-3(a)(3) (count four); 

first-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) (count 

five); third-degree hindering his own apprehension or prosecution, 

N.J.S.A. 2C:29-3(b)(1) (count six); and fourth-degree contempt of 

a domestic violence restraining order, N.J.S.A. 2C:29-9(b) (count 

seven). 

Defendant was tried before a jury. We summarized the evidence 

presented at trial in our opinion on defendant's direct appeal. 

State v. Amodio, 390 N.J. Super. 313, 318-22 (App. Div.), certif. 

denied, 192 N.J. 477 (2007). As we noted in that opinion, the 

evidence showed that shortly after midnight on October 29, 2000,

a fire was reported at a home in Sicklerville, where defendant had 

been living with Lisa and Kollin, her son by a previous marriage. 

Id. at 318. Defendant was found on the ground nearby. Id. at 319. 

His clothes were on fire. Ibid.

Lisa and Kollin's burned bodies were found in the first-floor 

kitchen, and parts of a broken hammer were found near Lisa's body. 
3 A-2737-15T1

Ibid. The Camden County medical examiner determined that Lisa did 

not die of asphyxiation due to fire, but rather from a depressed 

skull fracture that caused bleeding and bruising to the brain. 

Ibid. The medical examiner also determined that Kollin died of 

smoke inhalation and thermal burns. Ibid.

 An investigation was conducted as to the cause of the fire.

Id. at 320. The investigators determined that an accelerant and 

open flame had been used to start the fire, which began on the 

first floor and traveled to the second floor. Ibid. Tests performed 

on defendant's clothing revealed a residue of gasoline. Ibid. 

Kollin's blood was found on defendant's socks and pants, and Lisa's 

blood was found on defendant's pants and left sneaker. Ibid. 

Defendant testified that on September 29, 2000, he moved into 

the Sicklerville home with Lisa and Kollin. Id. at 321. Several 

weeks later, defendant and Lisa had a dispute, and Lisa obtained 

a domestic violence restraining order, which precluded defendant 

from having any contact with her. Ibid. The restraining order 

later was extended to November 27, 2000. Id. at 322.

On the morning of October 28, 2000, defendant gave Lisa money 

for a car payment, purchased new tries for her car, and helped 

Lisa and Kollin decorate the house for Halloween. Ibid. After they 

had dinner, Lisa brought Kollin upstairs to bed. Ibid. According

to defendant, he did not have sexual relations with Lisa because 
4 A-2737-15T1

he was tired and could not "do it." Ibid. Defendant said Lisa gave 

him the "cold shoulder" and stopped speaking to him. Ibid.

After midnight, defendant decided to leave the house. Ibid.

He went to the shed at the rear of the house to collect some tools. 

Ibid. Defendant was in the shed for about fifteen minutes, and 

then went to his car. Ibid. He said he was returning to the shed 

when he observed the fire. Ibid. He denied that he did anything 

to harm Lisa or Kollin. Ibid.

The jury found defendant not guilty of Kollin's murder (count 

one), but guilty of the lesser-included offense of first-degree 

aggravated manslaughter. Ibid. The jury also found defendant not 

guilty of Lisa's murder (count two), but guilty of the lesserincluded offense of second-degree passion/provocation 

manslaughter. Ibid.

 In addition, the jury found defendant guilty of felony murder 

of Kollin (count three); not guilty of felony murder of Lisa (count 

four); not guilty of first-degree arson (count five), but guilty 

of the lesser-included offense of third-degree arson; guilty of 

hindering his own apprehension or prosecution (count six); and 

guilty of contempt (count seven). Id. at 322-23.

At sentencing, the judge merged counts one and five with 

count three and sentenced defendant to life imprisonment on count 

three, with a thirty-year period of parole ineligibility. Id. at 
5 A-2737-15T1

331. The judge imposed a consecutive term of ten years on count 

two, with a period of parole ineligibility as prescribed by the 

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Ibid. The judge

also imposed concurrent terms of four years of incarceration on 

count six and nine months on count seven. Ibid.

Defendant appealed from the judgment of conviction and raised 

the following arguments: 

I. THE ITEMS SEIZED AFTER THE CHIEF FIRE 

MARSHALL FOUND TWO BODIES IN THE BURNED HOME 

SHOULD HAVE BEEN SUPPRESSED BECAUSE THE STATE 

DID NOT OBTAIN A SEARCH WARRANT AND NO EXIGENT 

CIRCUMSTANCES WERE PRESENT.

II. THE ADMISSION OF THE TEMPORARY RESTRAINING 

ORDER PRECLUDED THE DEFENDANT FROM RECEIVING 

A FAIR TRIAL WHERE THE TRIAL COURT'S LIMITED 

INSTRUCTION FOCUSED THE JURY'S ATTENTION ON 

THE DEFENDANT'S PROPENSITY TO COMMIT THE 

MURDER OF HIS GIRLFRIEND. (Not raised below).

III. THE DEFENDANT'S CONVICTIONS ARE AGAINST 

THE WEIGHT OF THE EVIDENCE AND SHOULD BE SET 

ASIDE BECAUSE THE JURY FAILED TO RECOGNIZE 

EVIDENCE POINTING TO REASONABLE DOUBT.

IV. A TRIAL COURT MUST, UNDER THE NEW RULE OF 

LAW, WEIGH THE AGGRAVATING AND MITIGATING 

FACTORS UNENCUMBERED BY THE PRESUMPTIVE 

STATUTORY TERM WHEN SENTENCING THE DEFENDANT. 

(Not raised below).

V. THE TRIAL COURT ERRED IN IMPOSING A 

CONSECUTIVE TERM WHERE IT DETERMINED THE 

CRIMES REMOTE AND INDEPENDENT FROM ONE 

ANOTHER.

VI. UNDER THE PRE-AMENDMENT STATUTE, NERA DOES 

NOT APPLY TO A HOMICIDE WHICH WOULD OTHERWISE 
6 A-2737-15T1

BE MURDER BUT FOR ITS COMMISSION IN THE HEAT 

OF PASSION. (Not raised below). 

We affirmed defendant's convictions and the sentences on 

counts three, six, and seven, but remanded the matter for resentencing on count two. Id. at 334. The trial court thereafter 

sentenced defendant on count two to a consecutive term of seven 

years of incarceration, with a NERA period of parole ineligibility. 

The Supreme Court thereafter denied defendant's petition for 

certification. Amodio, supra, 192 N.J. at 477. 

On October 19, 2007, defendant filed a pro se petition for 

PCR. The court appointed counsel to represent defendant, and 

counsel filed a brief in support of the petition. The PCR court 

found that defendant's claims were barred by Rule 3:22-4 because 

they could have been raised on direct appeal, and his challenge 

to the sentence was barred by Rule 3:22-5 because that issue had 

been decided in defendant's direct appeal. The court nevertheless 

addressed and rejected defendant's claims that he was denied the 

effective assistance of trial and appellate counsel. 

Defendant appealed from the order denying PCR and raised the 

following arguments:

POINT I

DEFENDANT'S PCR PETITION WAS NOT PROCEDURALLY 

BARRED
7 A-2737-15T1

POINT II

DEFENDANT'S CONVICTIONS MUST BE REVERSED 

BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF 

TRIAL AND/OR APPELLATE COUNSEL; IN THE 

ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR 

AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE

CASE OF INEFFECTIVENESS WAS ESTABLISHED

A. Trial counsel "Opened The Door" To "Other 

Crimes, Wrongs, Or Acts" Evidence And 

Appellate Counsel Failed to Raise This Issue 

on Direct Appeal

B. Appellate Counsel Failed to Raise Jury 

Intrusion By An Extraneous Influence

 Defendant filed a supplemental pro se brief in which he argued 

that: (1) he was denied the effective assistance of trial and/or 

appellate counsel because counsel failed to argue that the State's 

opening and closing arguments were improper; (2) he was denied the 

effective assistance of trial counsel because the trial court 

failed to properly charge the jury as to its duty to continue to 

deliberate and failed to correct the jury's impression that they 

had to reach a verdict; and (3) the trial court imposed an illegal 

consecutive sentence.

We rejected these arguments and affirmed the denial of 

defendant's PCR petition. State v. Amodio, No. A-4350-10 (App. 

Div. Nov. 5, 2012). The Supreme Court later denied defendant's 

petition for certification. State v. Amodio, 213 N.J. 538 (2013). 

On July 23, 2015, defendant filed a pro se second PCR 

petition. Defendant alleged that he was denied the effective 
8 A-2737-15T1

assistance of counsel. He also sought relief on the basis of newly 

discovered evidence. Defendant asked the PCR court to assign 

counsel to represent him. He also sought an evidentiary hearing 

on his petition. 

Attached to defendant's petition was a copy of an article 

regarding a criminal case in Ohio that was published in The 

Trentonian on February 1, 2012. The article stated that the 

defendant in the Ohio case was challenging his arson conviction 

based on certain "advances in the science of fire investigation[.]"

The PCR court filed a letter opinion dated December 9, 2015, 

and concluded that the petition must be denied. The judge noted 

that defendant had asserted a claim of newly discovered evidence, 

but he had not provided any proof of this evidence for the court 

to consider. The judge pointed out that defendant had only 

presented a copy of a newspaper clipping, which generally discussed 

innovations in arson investigations. The judge stated that 

defendant has not provided any proof as to "how any such 

advancements have any bearing on [his] case."

The judge also found that Rule 3:22-12(a)(2) precluded the 

court from considering the second PCR petition because the claims 

did not come within the purview of the three circumstances in 

which a second or subsequent PCR petition may be filed. The judge 
9 A-2737-15T1

also determined that defendant had not presented a cognizable 

claim of ineffective assistance of counsel. 

The judge also noted that Rule 3:22-5 precluded defendant 

from asserting claims of ineffective assistance of counsel that 

were previously denied on the merits, and Rule 3:22-4 barred 

defendant from asserting claims that could have been raised in his 

first PCR petition. The judge memorialized her decision in an 

order dated December 9, 2015. 

Thereafter, defendant filed a motion in the PCR court seeking 

to vacate the December 9, 2015 order and reinstatement of the 

petition. The judge filed a letter/order dated January 25, 2016, 

denying the motion. The judge wrote that defendant had not raised 

a substantial issue of fact or law, which would warrant assignment 

of counsel, and there was no factual support for the claim of 

newly discovered evidence. The judge reiterated that the claims 

were time-barred, and defendant had not raised any constitutional 

issue "which would justify setting aside the procedural rules in 

the interests of justice." 

On appeal, defendant raises the following arguments:

[POINT] I

THE PCR COURT ERRED IN DENYING PETITIONER'S 

PETITION, BECAUSE PETITIONER'S CONVICTION WAS 

SECURED IN VIOLATION OF HIS STATE AND FEDERAL 

CONSTITUTIONAL RIGHTS AND COUNSEL SHOULD HAVE 

BEEN ASSIGNED, TO REPRESENT THE MATTER.
10 A-2737-15T1

[POINT] II

THE LOWER COURT ERRED IN FINDING PETITIONER'S 

SECOND POST-CONVICTION RELIEF PETITION TIME 

BARRED.

We have thoroughly reviewed the record and conclude that 

defendant's arguments are entirely without merit. We affirm the 

denial of defendants' second PCR petition substantially for the 

reasons stated by the PCR judge in her letter opinions of December 

9, 2015, and January 25, 2016. We add the following brief comments. 

As noted, in his petition, defendant raised a claim of newly 

discovered evidence. In support of that claim, defendant submitted 

to the PCR court a copy of an article that was published in The 

Trentonian on February 1, 2012. The article refers to certain 

"advances in the science of fire investigation[.]" 

In his brief on appeal, defendant has included an article 

which apparently was found on the National Public Radio (NPR) 

Internet website, entitled "Arson Forensics Set Old Fire Myths 

Ablaze." The article discusses new research on how fires start and 

burn. The NPR article states in part that "[i]n recent years, fire 

researchers and the changes to fire investigations have shattered 

dozens of arson myths as the science behind arson forensics 

continues to evolve." 

The NPR article was not, however, presented to the trial 

court. Therefore, the article is not a part of the record on 
11 A-2737-15T1

appeal. R. 2:5-4(a) (noting that the record on appeal consists of 

"all papers on file in the court or courts or agencies below").

Thus, the record is limited to the article published in The 

Trentonian in February 2012. The PCR court correctly determined 

that this article was insufficient to support defendant's claim. 

When a defendant seeks a new trial on the basis of newly 

discovered evidence, the defendant must show that the new evidence 

is "(1) material to the issue and not merely cumulative or 

impeaching or contradictory; (2) discovered since the trial and 

not discoverable by reasonable diligence beforehand; and (3) of 

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

trial were granted." State v. Smith, 224 N.J. 36, 49 (2016) 

(quoting State v. Nash, 212 N.J. 518, 549 (2013)). The PCR court 

correctly found that defendant did not meet this criteria.

The newspaper article is not competent evidence as to the 

alleged improvements in arson investigations. Defendant did not

present any competent proof of the alleged improvements in arson 

investigations or how such innovations had any bearing on his 

case. Therefore, defendant has not shown that the purported newlydiscovered evidence is material, or that it would probably change 

the jury's verdict if a new trial were granted. 

Defendant also alleged that he was denied the effective 

assistance of counsel in his first PCR petition. In order to 
12 A-2737-15T1

prevail on such a claim, the defendant must meet the two-prong 

test established in Strickland v. Washington, 466 U.S. 668, 104 

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme 

Court in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant is 

required to show that his attorney's handling of the matter was 

deficient, and that he was prejudiced by his attorney's deficient 

performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 

2064, 80 L. Ed. 2d at 693. 

Here, defendant has not explained the factual basis for his 

claim. As the judge noted, defendant has not "stated how or on 

what grounds [he was] denied the effective assistance of [PCR] 

counsel." A defendant must "allege specific facts and evidence" 

to support a claim of ineffective assistance of counsel. State v. 

Porter, 216 N.J. 343, 355 (2013). He "must do more than make bald 

assertions that he was denied the effective assistance of counsel." 

Ibid. (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. 

Div.), cert. denied, 162 N.J. 199 (1999)).

We have considered defendant's other arguments, and conclude 

that they are without sufficient merit to warrant discussion. R.

2:11-3(e)(2).

Affirmed.