STATE OF NEW JERSEY VS. DAVID AMODIO(01-12-3700, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.
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 June 26, 2017
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.
We briefly summarize the relevant facts and procedural
history. A Camden County grand jury charged defendant with first-
degree 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); first-
degree 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.
2 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
3 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 lesser-
included 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
4 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
5 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 re-
sentencing 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
6 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
7 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
8 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.
9 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
10 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 newly-
discovered 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
11 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.
12 A-2737-15T1