SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2515-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILSON MORALES,

Defendant-Appellant.

________________________________

Submitted April 26, 2017 – Decided

Before Judges Carroll and Gooden Brown.

On appeal from the Superior Court of New 

Jersey, Law Division, Camden County, 

Indictment No. 05-04-1576.

Wilson Morales, appellant pro se. 

Mary Eva Colalillo, Camden County Prosecutor, 

attorney for respondent (Jason Magid, 

Assistant Prosecutor, of counsel and on the 

brief). 

PER CURIAM

Defendant appeals from the January 20, 2016 Law Division 

order denying his motion for post-conviction DNA testing and 

assignment of counsel. We affirm.

NOT FOR PUBLICATION WITHOUT THE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.

August 25, 2017
2 A-2515-15T4

On September 29, 2006, defendant entered a negotiated guilty 

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

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

to eighteen years imprisonment, subject to the No Early Release 

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

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

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

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

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

confession. 

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

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

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

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

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

In addition, defendant confessed to police during a custodial 

interrogation that he and an associate planned the robbery but he 

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

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

allocution, defendant admitted that he and his associate drove to 

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

had a gun. Defendant acknowledged that his reckless actions caused 

the victim's death and that he was an accomplice to the robbery. 
3 A-2515-15T4

Defendant's direct appeal was heard by the excessive sentence 

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

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

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

198 N.J. 314 (2009). Defendant filed his first petition for postconviction relief (PCR) on March 16, 2009 and was assigned counsel. 

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

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

recantation and the State withholding DNA evidence, was denied by 

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

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

Thereafter, the Supreme Court denied defendant's petition for 

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

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

post-conviction DNA testing and assignment of counsel, contending 

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

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

support his application, defendant submitted a certification 

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

 

1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 

(1963).

2 Defendant filed a second PCR petition, but that petition was

dismissed on January 9, 2012 because the appeal of defendant's 

first PCR petition was pending. 
4 A-2515-15T4

State for DNA testing[.]" Defendant certified that although a 

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

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

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

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

mitochondrial testing[.]" 

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

letter addressed to his trial attorney from a forensic analyst 

with Orchid Cellmark who was apparently retained as a defense 

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

Jersey State Police Laboratory testing performed in the case. 

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

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

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

Further analysis of the ski mask for trace 

evidence is a possibility. If any hairs are 

present, additional DNA can be performed. If 

the hairs have roots then STR testing can be 

performed. If there are no roots present on 

any hairs possibly collected from the mask, 

then mitochondrial testing can be utilized.

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

cogent and well-reasoned written opinion. The judge carefully 

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

to meet all the procedural and substantive requirements of the 

statute, and was therefore "not entitled to either performance of 
5 A-2515-15T4

post-conviction forensic DNA testing or assignment of counsel." 

Judge McBride acknowledged that defendant had consented to 

providing hair samples for comparison to evidence collected in the 

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

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

would have performed other tests on the hair samples, specifically 

STR and mitochondrial testing. Because defendant now sought 

performance of those tests and was willing to provide supplemental 

samples to facilitate them, Judge McBride determined that 

defendant thereby "satisfied his burdens under [N.J.S.A.] 2A:84A32a(a)(1)(c), (d), and (e)." 

However, the judge found that defendant "failed to 

satisfactorily explain, as required under [N.J.S.A.] 2A:84A32a(a)(1)(a), why his identity was a significant issue in the 

case." The judge explained:

Defendant submits that "the identity of him 

[sic] is a significant issue in this case, 

because he is innocent of the crime he pled

to." This bald assertion, made nearly ten

years after the [d]efendant pled guilty, is 

insufficient for several reasons. First, a 

finding that the hair was not [d]efendant's

would not necessarily be exculpatory given the 

other evidence in the case, including 

[d]efendant's inculpatory statement, the 

statement of his girlfriend, and the out-ofcourt identification of [d]efendant by the 

victim's wife. Second, and more importantly, 

[d]efendant pled guilty to the charge of 

aggravated manslaughter and admitted under 
6 A-2515-15T4

oath that, inter alia, he was an accomplice 

to the robbery and that he was, in fact, guilty 

of aggravated manslaughter.

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

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

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

for a new trial based upon newly discovered evidence would be 

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

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

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

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

does [the defense expert] state that such evidence would 

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

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

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

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

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

evidence[.]" 

This appeal followed. On appeal, defendant raises a single

argument for our consideration:

POINT I

THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S 

MOTION FOR PERFORMANCE OF FORENSIC DNA TESTING 

AND ASSIGNMENT OF COUNSEL, VIOLATING 

DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL 

RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
7 A-2515-15T4

We defer to the factual findings of the trial court so long 

as they are supported by "sufficient credible evidence present in 

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

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

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

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

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

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

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

add only the following comments.

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

serving a term of imprisonment to move for forensic DNA testing 

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

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

imposes both procedural and substantive requirements upon a 

 

3 For the first time on appeal, defendant also seeks DNA testing 

of a "bite mark on [the] victim." We "'decline to consider 

questions or issues not properly presented to the trial court when 

an opportunity for such a presentation is available unless the 

questions so raised on appeal go to the jurisdiction of the trial 

court or concern matters of great public interest.'" Zaman v. 

Felton, 219 N.J. 199, 226-27 (2014) (quoting State v. Robinson, 

200 N.J. 1, 20 (2009), certif. denied, 226 N.J. 213 (2016)). 

Defendant did not raise this issue before the trial judge and it 

is not jurisdictional in nature, nor does it substantially 

implicate the public interest. 
8 A-2515-15T4

defendant seeking DNA testing. Procedurally, a defendant must

first meet the following requirements:

(a) explain why the identity of the defendant 

was a significant issue in the case;

(b) explain in light of all the evidence, how 

if the results of the requested DNA testing 

are favorable to the defendant, a motion for 

a new trial based upon newly discovered 

evidence would be granted;

(c) explain whether DNA testing was done at 

any prior time, whether the defendant objected 

to providing a biological sample for DNA 

testing, and whether the defendant objected 

to the admissibility of the DNA testing 

evidence at trial. . . . ;

(d) make every reasonable attempt to identify 

both the evidence that should be tested and 

the specific type of DNA sought; and

(e) include consent to provide a biological 

sample for DNA testing.

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

If the defendant meets the procedural requirements of 

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

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

court shall determine whether the following substantive 

requirements have been established:

(1) the evidence to be tested is available and 

in a condition that would permit the DNA 

testing that is requested in the motion;

(2) the evidence to be tested has been subject 

to a chain of custody sufficient to establish 
9 A-2515-15T4

it has not been substituted, tampered with, 

replaced or altered in any material aspect;

(3) the identity of the defendant was a 

significant issue in the case;

(4) the eligible person has made a prima facie 

showing that the evidence sought to be tested 

is material to the issue of the eligible 

person's identity as the offender;

(5) the requested DNA testing result would 

raise a reasonable probability that if the 

results were favorable to the defendant, a 

motion for a new trial based upon newly 

discovered evidence would be granted. The 

court in its discretion may consider any 

evidence whether or not it was introduced at 

trial;

(6) the evidence sought to be tested meets 

either of the following conditions:

(a) it was not tested previously;

(b) it was tested previously, but 

the required DNA test would provide 

results that are reasonably more 

discriminating and probative of the 

identity of the offender or have a 

reasonable probability of 

contradicting prior test results;

(7) the testing requested employs a method 

generally accepted within the relevant 

scientific community; and

(8) the motion is not made solely for the 

purpose of delay.

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

"It is [the] defendant's burden to establish that all of the 

elements necessary for DNA testing have been fulfilled." State 
10 A-2515-15T4

v. Armour, 446 N.J. Super. 295, 311 (App. Div. 2016), certif. 

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

Defendant argues he has satisfied the statutory criteria

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

asserts the judge applied an incorrect standard by relying on the 

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

to establish whether the identity of the defendant was a 

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

364 N.J. Super. at 394. In Peterson, we explained N.J.S.A. 2A:84A32a(d)(3) "does not specify that the identification of the 

defendant as the perpetrator must have been established by any 

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

strength of evidence against a defendant is not a relevant factor 

in determining whether his identity as the perpetrator was a 

significant issue." Id. at 396. Rather,

[t]he underlying objective of N.J.S.A. 2A:84A32a--to provide an opportunity for exoneration 

of an innocent person through the testing of 

evidence by a highly reliable scientific 

methodology that was not available at the 

original trial--may be served in any case 

where there is a genuine question concerning 

the identity of the perpetrator. Therefore, 

we conclude that the requirement of N.J.S.A.

2A:84A-32a(d)(3) that "identity" must have 

been a "significant issue" at defendant's 

trial before post-conviction DNA testing will 

be ordered does not turn on the form of 

evidence the State relied upon to prove the

perpetrator's identity.
11 A-2515-15T4

[Id. at 395.]

Here, we conclude defendant's motion was properly denied

because defendant failed to "explain why the identity of the 

defendant was a significant issue in the case[.]" N.J.S.A. 2A:84A32a(a)(1)(a). Likewise, defendant failed to "explain in light of 

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

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

newly discovered evidence would be granted[.]" N.J.S.A. 2A:84A32a(a)(1)(b). In this regard, to meet the standard for "a new 

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

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

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

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

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

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

relevant here, defendant must show that the evidence was discovered 

after he pled guilty "and was not discoverable by reasonable 

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

(quotation and citation omitted). 

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

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

defendant to prove the DNA results will be favorable, rather it 
12 A-2515-15T4

must only be established that there is a reasonable probability 

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

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

(quotation and citations omitted). However, in determining

whether there exists a reasonable probability that a new trial 

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

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

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

overwhelming and the defendant did not present a defense 

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

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

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

Simply stated, we cannot draw the connection suggested by 

defendant that a favorable outcome in connection with the testing 

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

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

reasonable probability that the discovery of such proof would 

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

challenged forensic evidence was used to identify the defendant 

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

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

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

of the murderer was likely and almost certainly the person whose 
13 A-2515-15T4

DNA was found at the crime scene. Ibid. Here, the evidence sought 

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

as the perpetrator and would not constitute grounds for a new 

trial. Even the most favorable retesting outcome must be weighed 

against the State's compelling proofs and would be overshadowed 

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

we agree with Judge McBride that defendant has not made the 

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

(b).

Affirmed.