Opinion
DOCKET NO. A-4658-13T2
02-02-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL DERRY, Defendant-Appellant.
Michael Derry, appellant pro se. James P. McClain, Atlantic County Prosecutor, attorney for respondent (Elliott J. Almanza, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-07-1275. Michael Derry, appellant pro se. James P. McClain, Atlantic County Prosecutor, attorney for respondent (Elliott J. Almanza, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Michael Derry, convicted of armed robbery and aggravated assault in 2007, appeals from the denial of his motion brought pursuant to Rule 3:13-3, seeking the production of DNA materials he claims were used to convict him at trial. In his certification in support of the motion, Derry claimed that he was never supplied with the DNA reports used at trial, and the State never called the person who performed the DNA analysis but instead relied on one of the investigating officers to "explain the DNA reports." Derry maintained he "desperately tried" to obtain the reports from counsel representing him on his direct appeal without success, and that he finally obtained trial counsel's file from the public defender, but the reports were not in it. Derry also related that his subsequent open public records request to the prosecutor for the reports was denied. He claimed the police officer who testified at his trial "seriously prejudiced me by stating the DNA reports [were] inconclusive," and he "assume[s] that the DNA reports exonerated [him] and that is why the State will not turn over said reports."
Judge Kyran Connor denied the motion by order of May 5, 2014. Judge Connor wrote the following letter to Derry explaining his reasons for denying the motion.
I have received your motion compelling the State's DNA discovery under R. 3:13-3(a), along with supporting certifications, and I have reviewed your case file.
The Rule which you invoke relates to pretrial discovery. You were convicted by a jury in this matter on May 16, 2007, and sentenced on August 30, 2007. Your conviction and sentence were affirmed by the Appellate Division on September 3, 2009.
Your petition for Post-Conviction relief was denied on April 18, 2012.
As stated in my November 9, 2012 letter regarding your prior motion to compel discovery under [Rule] 3:13-3(b), pretrial discovery opportunities and obligations, by definition, have no applicability in this post-trial/post-conviction time frame.
Accordingly, your motion is denied. A copy of an executed and filed order is attached.
Derry appeals raising one issue:
POINT ONE
THE LOWER COURT VIOLATED DEFENDANT[']S DUE PROCESS BY DENYING HIM POST TRIAL DNA DISCOVERY. THE STATE NEVER TURNED OVER THE DNA REPORTS THAT [WERE] USED TO CONVICT DEFENDANT.We reject that argument and affirm for the reasons expressed by Judge Connor in his letter to Derry quoted above.
We add only the following. The State agrees, of course, that Rule 3:13-3 is inapplicable. It contends, however, that even if viewed as a motion seeking post-trial DNA discovery under N.J.S.A. 2A:84A-32a, defendant is still not entitled to the relief he seeks. In his reply brief, defendant concedes his motion to the trial court was made under an incorrect rule. He contends, however, that what he was asking for was clear and that the judge should have construed his request as one made under N.J.S.A. 2A:84A-32a. He then proceeds to make his case for relief under that statute.
We disagree with Derry that the trial court should have considered his motion as one made pursuant to N.J.S.A. 2A:84A-32a. That statute has certain exacting requirements that his application did not address. See State v. DeMarco, 387 N.J. Super. 506, 514-15 (App. Div. 2006). Because no request under N.J.S.A. 2A:84A-32a was presented to the trial court, it is not properly before us. See State v. Robinson, 200 N.J. 1, 19-21 (2009). Accordingly, we do not consider it.
We affirm the denial of defendant's motion for DNA discovery made pursuant to Rule 3:13-3 for the reasons expressed by Judge Connor in his letter of May 5, 2014.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION