SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3059-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE SANTOS,

a/k/a NELSON NIEVES,

Defendant-Appellant.

_______________________

Submitted September 20, 2021 – Decided October 13, 2021

Before Judges Messano and Accurso.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 96-09-1980.

Jose Santos, appellant pro se. 

Cary Shill, Acting Atlantic County Prosecutor, attorney 

for respondent (Mario C. Formica, Special Deputy 

Attorney General/Acting Deputy First Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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In 1997, a jury convicted defendant Jose Santos of murder, robbery and 

related offenses, and the court sentenced defendant to life imprisonment plus a 

consecutive term of twenty years, with a total of forty years of parole 

ineligibility. We affirmed the convictions, remanding only to resentence 

defendant on his first-degree robbery conviction to eliminate the ten-year parole 

disqualifier. State v. Santos, No. A-2719-97 (App. Div. June 29, 1999). We 

subsequently affirmed denial of defendant's petition for post-conviction relief. 

State v. Santos, No. A-1058-04 (App. Div. Feb. 14, 2006). 

In 2009, defendant filed a pro se application to have DNA testing 

"performed on a hair found on the back of the victim's index finger" and "bloodstained gloves" found in a dumpster where the murder weapons, a knife and a 

pair of scissors, were found. State v. Santos, No. A-4554-12 (App. Div. Sept. 

22, 2015) (slip op. at 2–3). Without conducting oral argument or an evidentiary 

hearing, the judge denied the request in a one-page order that simply provided

defendant "failed to meet [the] standard set forth in N.J.S.A. 2A:84A-32a." Id.

at 3 (alteration in original). 

Defendant again appealed, and we concluded the judge "failed to address 

the eight statutory factors within the body of its order" and failed to "issue any 

written or oral statement of reasons explaining its conclusion that the statutory 
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factors were not met." Id. at 6. Not knowing whether the hair and gloves still 

existed, we said that defendant was "entitled to have the State undertake a 

reasonably diligent inquiry to determine if one or both samples exist." Ibid. We 

vacated the order and "remanded for reconsideration and a statement of reasons 

that addresse[d] all of the discrete factors under N.J.S.A. 2A:84A-32a." Id. at 

7. We left "to the trial court's sound discretion . . . whether an evidentiary 

hearing on remand [was] warranted." Ibid. 

The State located the hair and gloves, as well as additional evidence from 

the trial, including a DNA sample from the victim, clippings from his 

fingernails, and the knife and scissors recovered from the dumpster. Defendant 

provided a sample of his hair and a buccal swab for comparison. The New Jersey 

State Police Laboratory (NJSP Lab) conducted a DNA analysis of these items in 

2016 and furnished a report.1

Defendant was excluded as a contributor to most of the blood samples 

from the gloves, although two samples contained a "[m]ixture of DNA profiles 

consistent with at least three contributors." The victim was the major 

1 Apparently, neither defendant nor the State recognized that all the hair samples 

submitted for analysis in 1996 were deemed to have come from an animal or 

otherwise be "not useful for comparison." As a result, the NJSP Lab did not 

perform a DNA analysis on any hair samples.
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contributor of DNA from the other blood samples, as well as those from the 

knife and scissors. However, defendant's DNA profile was identified on the 

victim's fingernail clippings; the report stated that DNA profile occurred in 

approximately "1 in 29.8 billion of the Hispanic population." 

The judge conducting our remand entered an order on December 19, 2016. 

He determined no evidentiary hearing was "warranted" and our decision was 

"now rendered MOOT, as DNA testing has been completed, albeit, with adverse 

results for defendant." 

In 2019, defendant filed a pro se motion for a new trial premised on the 

results of the DNA testing. A different judge, Judge Jeffrey J. Waldman, denied 

the motion, stating his reasons in a comprehensive written opinion. This appeal 

followed.

Defendant argues that based on the DNA testing, Judge Waldman should 

have vacated his conviction and granted him a new trial. We disagree and 

affirm.

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

a criminal conviction." State v. Armour, 446 N.J. Super. 295, 305 (App. Div. 

2016). The motion may be granted "if required in the interest of justice[,]"

pursuant to Rule 3:20-1, and, if "based on the ground of newly-discovered 
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evidence," the motion "may be made at any time." R. 3:20-2. Even when 

premised on the ground of newly discovered evidence, "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." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000) (State v. 

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

A defendant is entitled to a new trial based on newly discovered evidence 

if the 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. Szemple, 247 N.J. 

82, 99 (2021) (quoting State v. Nash, 212 N.J. 518, 549 (2013)). "[A]ll three 

prongs of that test must be satisfied before a defendant will gain the relief of a 

new trial." State v. Ways, 180 N.J. 171, 187 (2004) (citing State v. Carter, 85 

N.J. 300, 314 (1981)). "The defendant has the burden to establish each prong is 

met." State v. Fortin, 464 N.J. Super. 193, 216 (App. Div. 2020) (quoting State 

v. Smith, 29 N.J. 561, 573 (1959)).

"[P]rongs one and three are inextricably intertwined." Nash, 212 N.J. at 

549. "'[E]vidence [that] would shake the very foundation of the State's case and 
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almost certainly alter the earlier jury verdict' could not be categorized as 'merely 

cumulative.'" Ibid. (quoting Ways, 180 N.J. at 189 (second alteration in 

original)). "The power of the newly discovered evidence to alter the verdict is 

the central issue, not the label to be placed on that evidence." Id. at 549–50 

(quoting Ways, 180 N.J. at 191–92). We have said that when the new trial 

motion is based upon post-verdict testing of trial evidence, "even the most 

favorable retesting outcome . . . must be weighed against the compelling proofs 

presented by the State." Armour, 446 N.J. Super. at 313 (citations omitted); see 

also State v. Reldan, 373 N.J. Super. 396, 401–05 (App. Div. 2004) (affirming 

denial of the defendant’s request for DNA testing because he failed to show a 

reasonable probability that any favorable DNA evidence would have changed 

the jury’s verdict). 

Defendant contends that the DNA testing of the gloves, knife, and 

scissors, which did not indicate the presence of his DNA, merited the grant of a 

new trial. However, Judge Waldman correctly concluded the lack of defendant's 

DNA on those items "ha[d] no probative value as it d[id] nothing to negate 

[defendant's] involvement in the crime." Moreover, the positive match of 

defendant's DNA to the victim's fingernail clippings yielded significant 

additional inculpatory evidence if it were introduced at the time of trial. 
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Defendant explains this forensic finding by noting evidence at trial 

revealed that he and a friend discovered the victim and tried to resuscitate him.2 

However, the State produced overwhelming evidence of defendant's guilt at 

trial, including his confession, which defendant repeatedly contends now, as he 

has in the past, was "coerced." Defendant, for example, made the same claim 

when he testified before the jury, which obviously rejected the contention. 

Furthermore, as Judge Waldman wrote:

Additionally, [defendant's] confession was 

corroborated by other evidence presented at trial. The 

murder weapons were found in the dumpster where 

[defendant] said he had placed them; a mattress in the 

victim’s home was moved as [defendant] said he moved 

it; and the victim’s pants pockets were turned inside out 

with all money removed, corroborating [defendant's] 

confession of stealing [eighty-seven dollars] from the 

victim. Further, [defendant's] fingerprint was found on 

the bag containing the alleged murder weapons, and an 

eyewitness did see [defendant] put something in the 

dumpster where the murder weapon was found shortly 

after the victim’s death. Therefore, even if the absence 

of [defendant's] DNA on some of the evidence were 

presented at trial, it would not have altered the outcome 

of the jury’s verdict. 

For the foregoing reasons, [defendant's] motion 

fails to meet the criteria for newly discovered evidence 

warranting a new trial. 

2

Judge Waldman mistakenly wrote that there was no evidence at trial 

supporting defendant's explanation.
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We fully concur with this reasoning. To the extent we have not specifically 

addressed any other arguments raised by defendant, they lack sufficient merit to 

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

Affirmed.