NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION
DOCKET NO. A-6133-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,
v.

CHRISTOPHER KORNBERGER,

Defendant-Appellant.

Submitted February 28, 2011 - Decided April 11, 2011

Before Judges Reisner, Sabatino and Alvarez.

On appeal from the Superior Court of New

Jersey, Law Division, Burlington County,
Indictment No. 05-03-0335.

The Law Offices of Robin Kay Lord, LLC,

attorneys for appellant (Ms. Lord and Richard
W. Berg, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for

respondent (Natalie A. Schmid Drummond,
Deputy Attorney General, of counsel and on
the brief).

PER CURIAM

Defendant Christopher Kornberger was convicted by a

Burlington County jury for the rape and murder of Krista

DiFrancesco and a sexually-motivated attack on E.L.J. He pled

guilty to a sexually-motivated attack on N.C.1

We summarize the convictions as follows. For crimes

against DiFrancesco: (1) first-degree murder, N.J.S.A. 2C:11-

3a(1) and a(2); (2) first-degree felony murder, N.J.S.A. 2C:11-

3a(3); (3) three counts of first-degree aggravated sexual

assault, N.J.S.A. 2C:14-2a(3), a(4), and a(6); and (4) third-

degree possession of a weapon (knife) for an unlawful purpose,

N.J.S.A. 2C:39-4d. For crimes against E.L.J.: (1) second-degree

aggravated assault, N.J.S.A. 2C:12-1b(1); (2) third-degree

aggravated assault, N.J.S.A. 2C:12-1b(2); (3) second-degree

attempted sexual assault, N.J.S.A. 2C:5-1a(3) and 2C:14-2c(1);

and (4) second-degree attempted kidnapping, N.J.S.A. 2C:5-1a(3)

and 2C:13-1b(1). For crimes against N.C.: (1) first-degree

attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a(1); (2) second-

degree aggravated sexual assault, N.J.S.A. 2C:12-1b(1); (3)

third-degree aggravated sexual assault, N.J.S.A. 2C:12-1b(2);

(4) second-degree attempted kidnapping, N.J.S.A. 2C:5-1a(3) and

2C:14-2c(1); and (5) third-degree possession of a weapon (knife)

for an unlawful purpose, N.J.S.A. 2C:39-4d.

1
Intending no insensitivity to Krista DiFrancesco's family, we
use her name rather than her initials because she is deceased.
We use initials to protect the identities of those victims who
survived defendant's attacks.

2 A-6133-07T4
 After merging several of the convictions, the trial judge

sentenced defendant to an aggregate term of life in prison, plus

an aggregate consecutive term of fifty-one years, all subject to

the No Early Release Act, N.J.S.A. 2C:43-7.2, to be served

consecutive to a sentence imposed in Camden County.2

Defendant appeals from the conviction and the sentence,

raising the following points for our consideration:

POINT I: SINCE THE STATE FAILED TO SATISFY

ITS BURDEN OF DEMONSTRATING THAT DEFENDANT'S
CONFESSION WAS VOLUNTARY, ADMISSION OF THIS
STATEMENT INTO EVIDENCE VIOLATED DEFENDANT'S
CONSTITUTIONAL RIGHTS.

POINT II: THE TRIAL COURT ERRED IN DENYING

THE DEFENSE SEVERANCE MOTION AND PERMITTING
THE STATE TO UTILIZED OTHER BAD ACTS TO
PROVE THE HOMICIDE CHARGE.

POINT III: THE TRIAL COURT ERRED IN FAILING

TO GRANT A CONTINUANCE TO HEAR DEFENDANT'S
MOTION TO WITHDRAW DEFENDANT'S GUILTY PLEA
TO THE [N.C.] CHARGES WITH SUBSTITUTE
COUNSEL AND FAILED TO CONSIDER THIS MOTION
ALTOGETHER.

POINT IV: DEFENDANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL WITH RESPECT TO THE
[E.L.J.] CONVICTION.3

2
This opinion should be read in conjunction with our opinion in
the companion appeal affirming defendant's Camden County
conviction. State v. Kornberger, Nos. A-0859-07, A-0679-08
(App. Div. April 11, 2011).
3
In his original Point IV, defendant argued that his trial
counsel rendered ineffective assistance by failing to file a
double jeopardy motion with respect to the charges relating to
E.L.J. Both appellate counsel later discovered that trial
counsel did file such a motion, which the trial judge denied.
(continued)

3 A-6133-07T4
 POINT V: ADMISSION OF TESTIMONY CONCERNING
DNA TESTING BY RELIAGENE TECHNOLOGIES
INFRINGED DEFENDANT'S RIGHTS UNDER U.S.
CONST., AMEND SIX AND N.J. CONST., ART I ¶
10.

THE TRIAL COURT ERRED IN PERMITTING THE

STATE'S EXPERTS TO TESTIFY CONCERNING THE
RESULTS OF THE STR METHOD OF DNA TESTING.

POINT VI: PROSECUTORIAL MISCONDUCT DEPRIVED

DEFENDANT OF A FAIR TRIAL (Partially Raised
Below).

POINT VII: THE SENTENCE IMPOSED IS

MANIFESTLY EXCESSIVE.

We find no merit in any of defendant's appellate

contentions, including those asserted in the various

supplemental briefs his counsel filed. Therefore we affirm the

conviction and the sentence.

We set forth the procedural history and the facts in light

of the issues defendant has raised on this appeal. In Burlington

County, defendant came under suspicion for several crimes:

attacking N.C. with a knife in an attempt to disable and then

rape her; running E.L.J. down with his car in an attempt to

disable and rape her; and raping and stabbing to death Krista

DiFrancesco. In a very lengthy statement given to Burlington

(continued)
In supplemental briefs, the parties addressed the merits of the
decision to deny the motion. We likewise have addressed the
merits of that decision.

4 A-6133-07T4
County law enforcement officers, defendant confessed to the

attacks on all three victims, as well as to assaults on women in

Camden County. The Camden prosecution proceeded first and, as

part of that case, a Camden judge held a Miranda hearing and

ruled that defendant's entire confession was voluntary.

There were extensive pre-trial proceedings in the

Burlington County case. In one proceeding, all counsel agreed

that the Camden judge's decision obviated the need for a second

Miranda hearing. Defendant later sought to re-open the Miranda

issue, but the trial judge denied that application.4 He also

denied defendant's motion to sever the three Burlington matters

and try each case separately. He also denied defendant's

January 31, 2008 motion to dismiss the charges concerning E.L.J.

on double jeopardy grounds based on defendant's earlier guilty

plea to a traffic violation in municipal court.

As his trial was about to begin, defendant entered a plea

of guilty to the attack on N.C., leaving to be tried the charges

relating to E.L.J. and DiFrancesco. The parties then argued the

extent to which any evidence concerning N.C. would be admitted

at defendant's trial. Because defendant never denied hitting

E.L.J. with his car, and in fact remained at the scene until the

4
"The trial judge" or "the judge" refers to the Burlington
County trial judge. We refer to the Camden County trial judge
as "the Camden judge."

5 A-6133-07T4
police arrived, identity was not an issue in that case.

However, defendant's intent and motive were at issue.

In the DiFrancesco case, the victim was stabbed multiple

times, after which she was raped while she was still alive. The

killer's identity was at issue. Defendant was first identified

as a suspect based on two pieces of evidence: DNA recovered

from a cigarette butt at the scene of the attack on N.C., who

saw her attacker smoking a cigarette, and a composite sketch

created from N.C.'s description of her attacker. At his trial,

defendant planned to challenge the DNA evidence as tainted and

planned to challenge his confession as coerced and inaccurate.

In an oral opinion of February 25, 2008, the judge ruled

that limited amounts of evidence as to N.C. would be admitted on

the issues of identification and motive, and as corroborating

the accuracy of defendant's confession. Before the attorneys

made their opening statements, the judge explained to the jury

that defendant was not currently charged with any offenses

concerning N.C., and he gave the jury a detailed limiting

instruction.

This was the most pertinent trial evidence. At about 2:30

a.m. on May 10, 2003, neighbors in DiFrancesco's Marlton

townhouse complex heard someone screaming. Thinking it was

teenagers fooling around, they did not call the police. At

6 A-6133-07T4
about 6:30 a.m., a neighbor found DiFrancesco sitting on the

lawn. She was covered with blood and nude from the waist down.

The police responded to the scene, and DiFrancesco was

transported to a hospital. Subsequent medical examination

revealed that she had been violently sexually assaulted

vaginally and anally. She had also been stabbed sixteen times,

including wounds that penetrated her liver and lungs, and a

knife wound near her left eye that penetrated her brain leading

to her death. Two days after the assault, her husband

authorized her removal from life support. Semen retrieved on an

anal swab from DiFrancesco's body was later matched with

defendant's DNA.5

The State also presented testimony from Lawrence Shaffer, a

resident of a complex located next to DiFrancesco’s townhouse

complex. Shaffer identified defendant as the person he saw

getting out of a car and prowling with "purpose" around the

complex at around 2:30 a.m. on May 10, 2003. Shaffer testified

5
As will be discussed later in this opinion, the DNA test on the
anal swab was controversial, because it became contaminated.
However, Gina Pineda, one of the State's DNA experts, testified
that the lab could not have contaminated the swab with
defendant's DNA because the lab never had any of his DNA
material. Rather, the lab compared its analysis of what it
found on the swab with a paper report of defendant's DNA profile
provided by a different testing lab. According to the expert,
defendant's DNA profile was "identical" to the profile obtained
from material on the anal swab.

7 A-6133-07T4
that, after getting out of his car and walking around, defendant

got back into his car and drove away. Shaffer was able to

remember the incident, because he learned about the murder the

next day.

The State also presented testimony from Ryan Bourdon, an

Evesham Township police officer. Bourdon described seeing what

he characterized in his police report as "a suspicious vehicle"

parked in DiFrancesco’s neighborhood on the evening of May 7,

2003, three days before the murder. He questioned the vehicle’s

owner, who identified himself as "Christopher Kornberger" and

told Bourdon "he was jogging." Bourdon accepted that explanation

and let the man continue on his way. Bourdon identified

defendant in court as the person he questioned on May 7, 2003.

The attack on E.L.J. occurred a month after the DiFrancesco

murder. At about 8 a.m. on August 3, 2003, E.L.J. was running

in her Marlton neighborhood, training for a marathon. She "was

running on the left side of the road facing oncoming traffic."

Suddenly, she "heard an engine roaring behind [her]." She

turned to see a car three or four feet behind her coming

directly toward her. Based on her safety training, she jumped

onto the hood of the car rather than let the car hit her head-

on. She landed on the hood, flew off, and wound up falling onto

the side of the road, suffering significant injuries in the

8 A-6133-07T4
process. She believed the driver had hit her "on purpose" and

looked toward the car to observe the license plate. The car

stopped and a young man, whom she later identified as defendant,

emerged.

According to E.L.J., she was angry and afraid and started

"yelling" for help. A neighbor came out of her house and stated

that she had called 9-1-1. Defendant then explained that he

"was just looking down for cigarettes" when the collision

occurred. The neighbor went back into her house to get E.L.J. a

glass of water. While the neighbor was gone, defendant

approached E.L.J., who avoided him by circling around his car

with defendant following her.

When the police arrived, defendant told them he had

carelessly lost control of his car, and they treated the

incident as a traffic accident. E.L.J. later filed a civil suit

against defendant, in which she described the incident as an

accident in which defendant negligently lost control of his car.

Defendant was also issued a traffic ticket, pled guilty to

unsafe driving in municipal court, and paid $282 in fines and

costs.

To avoid the State calling N.C.6 as a trial witness, the

attorneys agreed to a limited set of stipulations that were read

6
N.C. was sometimes referred to as K.C. or N.K.C.

9 A-6133-07T4
to the jury. The stipulations briefly described that while out

walking on November 3, 2003, N.C. saw defendant smoking a

cigarette; defendant suddenly attacked N.C. from behind with a

knife; she screamed for help and he ran away; she gave police a

description used to make a composite sketch of the suspect; she

let them take samples of her DNA material; and if she had

testified she would have identified defendant as the attacker.

Before reading the stipulation to the jury, the judge gave

them a N.J.R.E. 404(b) limiting instruction. He advised that

the evidence was "introduced for the limited purposes of

establishing the defendant's motive, intent and state of mind

relative to the alleged offenses involving Krista DiFrancesco

and [E.L.J.]" and to establish "a source of forensic evidence to

be submitted by the State . . . as to Krista DiFrancesco."

William Kinner, an Evesham Township police detective,

testified that based on the composite sketch, defendant became a

suspect in the attack on N.C. On March 18, 2004, Kinner visited

defendant's home and asked him to provide a DNA sample and to

let police photograph him in connection with their investigation

of that case. Kinner did not tell defendant that the police had

retrieved a cigarette butt from the crime scene that could be a

source of DNA evidence. With defendant's consent, Kinner

10 A-6133-07T4
photographed him and swabbed the inside of his cheek (referred

to as a buccal swab) to retrieve DNA material.

After defendant's DNA was found to be a match with DNA

material on the cigarette butt, the police placed his home under

surveillance and, on May 13, 2004, they stopped defendant's car

as he was driving away from his house. Corporal Trevor Short,

of the Evesham Township Police Department, testified that after

he approached defendant's car, defendant asked him "Is this

about the cigarette butt?" Short had not observed defendant

throwing a cigarette butt from his car.

Corporal Short, Sergeant Walter Miller, and Prosecutor's

Detective Michael Sperry took defendant to the Prosecutor's

Office. There, according to Sperry, he administered Miranda

warnings to defendant, who agreed to waive his rights and be

interviewed. After Sperry had asked defendant a series of

questions about his background and family, defendant asked why

the police wanted to talk to him. When Sperry responded

generally that he wanted to speak to defendant "about some

incidents that happened in the area," defendant stated "Oh, I

get it. This is about the girl that was attacked around

Mother's Day." That was significant, because the attack on

DiFrancesco had occurred on the day before Mother's Day. Sperry

then asked defendant if he had known what was going on when the

11 A-6133-07T4
police pulled him over. Defendant responded "that he did know.

He just didn't want to believe it was actually happening." In

essence, defendant stated that he had been waiting for the

police to catch up with him.7

Sperry then turned the discussion to the attack on

DiFrancesco. According to Sperry, defendant stated that he had

been driving around the neighborhood that night, "looking for a

female to rape." Defendant described following DiFrancesco to

the door of her home, running up behind her and stabbing her

repeatedly. Defendant told Sperry, "I only wanted to rape her.

I didn't mean for her to die." However, defendant described in

graphic detail how he sexually assaulted DiFrancesco even though

she was breathing in gasps and "he felt that she was dying."

Defendant also confessed to Sperry that he attacked N.C. because

he wanted to rape her.

Following his initial interview, Sperry conducted a filmed

re-interview with defendant. After redaction to remove

references to the Camden assaults and other irrelevant or

prejudicial material, a DVD of defendant's confession was played

7
Defendant also expressed concern that his mother would be very
upset and his friends would abandon him when they found out
about his crimes. Sperry responded that he "wasn't going to
leave the interview with [defendant] and go share with his
friends the things that we had discussed."

12 A-6133-07T4
for the jury at his trial. In that confession, defendant

described at length his rape and murder of DiFrancesco.

Defendant admitted that he later read newspaper articles about

the murder. However, according to Sperry, defendant described

details of the attack that had never been made public, including

the locations of the stab wounds on DiFrancesco's body.

Defendant also confessed to the attack on E.L.J. Significantly,

he admitted that he hit E.L.J. with his car because he intended

to rape her. The jury heard limited portions of defendant's

confession concerning N.C., consistent with the stipulations

already entered in evidence.

In addition, the State introduced evidence found during a

search of defendant's home. In defendant's bedroom, the police

found a set of poems or rap lyrics, which the parties stipulated

were in defendant’s handwriting. In these documents, defendant

described the pleasure he derived from raping and murdering

women. He described creeping up in back of a woman and cutting

her "like a canteloupe." He also described leaving a woman with

a "dead brain" and a "cut on her head." Those details, to some

extent, corresponded to details of the attack on DiFrancesco.

As part of its case, the State presented extensive expert

testimony about DNA analysis. According to Robert Shaler, the

expert responsible for directing DNA identification of remains

13 A-6133-07T4
of the World Trade Center victims, "[t]he STR [method of]

analysis is the current forensic standard employed by all

forensic DNA laboratories in the United States." According to

Shaler, in reaching opinions about DNA test results, it is

standard practice for DNA experts to rely in part on bench notes

compiled by the technicians who actually performed the physical

analysis of the DNA materials. The scientists, however, also

have electronic data, known as an electropherogram, which they

interpret and rely on to form their conclusions.

Shaler’s testimony addressed the DNA materials from the

anal swab, which had been analyzed by Reliagene Technologies and

had admittedly been contaminated during that analysis. In great

detail, Shaler explained that even if there is DNA from multiple

sources on a swab, it can still be possible to differentiate the

DNA from each source if there is enough material from each

source on the swab.8 In this case, he testified, there was

enough material to reliably identify defendant’s DNA, as

distinguished from the contaminant DNA on the swab.

Shaler testified that he agreed with the statistical

calculations to which Gina Pineda, a senior analyst at

Reliagene, had previously testified. Notably, Pineda had also

8
Shaler essentially testified that there must be unequal amounts
of DNA from each source in order to be able to separate them.

14 A-6133-07T4
testified that although the swab had been contaminated by a

Reliagene technician while he was cutting it apart for analysis,

it could not have been contaminated with defendant’s DNA.

Reliagene never had any of defendant’s DNA material; instead,

they relied on a written report of his DNA profile produced by a

different laboratory. The accuracy of that profile was not in

dispute. Both Pineda and Shaler were extensively cross-examined

about the underlying bases for their opinions, including the

problems with the Reliagene technician’s work.

The defense presented testimony from a witness who

initially told police that she looked out her window on the

night of the DiFrancesco murder and saw a man running away. She

initially described the man as having a "tan" arm. However,

she also described the man as having lighter skin on the back of

his neck. Another defense witness gave testimony aimed at

showing that shortly after the murder, the police had shown

photos of the wounded DiFrancesco to a friend of DiFrancesco

named Joe Ritter. The testimony was intended to prove that

descriptions of her wounds were publicly available prior to

defendant’s confession. However, the officers who interviewed

Ritter testified on rebuttal that they never showed Ritter any

photos of DiFrancesco.

15 A-6133-07T4
 II

A.

On this appeal, defendant first contends that the trial

judge should not have treated the Camden judge's decision on the

Camden County Miranda hearing as binding for purposes of the

Burlington County case. The short answer is that defendant

consented to that procedure. On the record on December 14,

2006, defense counsel agreed that "we're not going to object [to

the State's] application that [the Camden judge's] ruling be

applicable in this case." Defendant reserved the right to

revisit the issue if recent enhancements to the sound quality

of defendant's videotaped confession revealed additional grounds

to challenge the confession, an eventuality that did not

materialize. Having consented to the trial judge's reliance on

the Camden judge's ruling, without the need for a second Miranda

hearing, defendant may not assert a different position on this

appeal. See State v. Souss, 65 N.J. 453, 460 (1974).

On the merits, we reject defendant's challenge to the

admissibility of his confession, for all of the reasons set

forth at length in our opinion in the companion case of State v.

Kornberger, supra, slip op. at 24-30.9 We add only the following

9
As in the companion case, defendant's appendix improperly
includes copies of police reports that were never introduced in
(continued)

16 A-6133-07T4
comments. In our companion opinion, we rejected defendant's

contention that he had invoked his Miranda rights when he asked

if the interview could be continued at a "different time," but

then immediately stated that he was amenable if the police

wanted to continue the interview. Kornberger, supra, slip op.

at 29-30. Pertinent to the present appeal, before defendant

made those remarks, he had already confessed, on videotape, to

murdering DiFrancesco. He had also already confessed, before

the taping began, to the attacks on N.C. and E.L.J.

We find no merit in defendant's contention, raised for the

first time on appeal, that Sperry made a statement to defendant

that contradicted the Miranda warnings. First, defendant

improperly premises this argument on a document that was not

admitted in evidence at the Miranda hearing or at either of his

trials. Second, at this trial, Sperry testified as to what he

said to defendant, and it was not contrary to the Miranda

warnings.

According to Sperry, after Miranda warnings were

administered but before the police began recording his

(continued)
evidence. See Kornberger, supra, slip op. at 13, n.8. While
Sperry testified to a limited extent about some of those
documents, and we have considered that testimony, we have not
considered the documents themselves, because they were not in
evidence and are not part of the appellate record.

17 A-6133-07T4
statement, defendant expressed concern that his friends would

abandon him when they found out about his crimes. Sperry

responded that he "wasn't going to leave the interview with

[defendant] and go share with his friends the things that we had

discussed." Taken in context, that statement did not constitute

an explicit or implicit promise that defendant's confession

would not be used in evidence against him. Cf. State v. Pillar,

359 N.J. Super. 249, 268 (App. Div. 2003)(holding that an offer

to speak to defendant "off the record" vitiated Miranda

warnings). Further, it is evident from defendant's videotaped

statement that he did not believe Sperry made such a promise.

Defendant clearly understood that the information he was giving

the police would be used against him and that he would be going

to jail because of it.

Defendant's contention, that the trial judge should have

held a supplemental Miranda hearing based on State v. Nyhammer,

197 N.J. 383, 407, cert. denied, ___ U.S. ___, 130 S. Ct. 65,

175 L. Ed. 2d 48 (2009), is equally without merit, for the

reasons stated in the judge's cogent oral opinion issued on

February 20, 2008. Further, Nyhammer is not on point for the

reasons stated in Kornberger, supra, slip op. at 27-28. In a

nutshell, based on his spontaneous statements to the police,

defendant already knew he was a suspect without being formally

18 A-6133-07T4
so advised. However, the police were under no obligation to

advise defendant that he was a suspect, or to obtain an arrest

warrant, before seeking to question him. Ibid.

B.

Defendant next contends that the trial court erred in

denying his motion to sever the indictments and try him

separately for his crimes against each victim. We disagree.

Rule 3:7-6 permits an indictment to include more than one

crime under the following pertinent circumstances: "if the

offenses charged are of the same or similar character or are

based on . . . 2 or more acts or transactions connected together

or constituting parts of a common scheme or plan." However, a

defendant may move for relief from "prejudicial joinder." R.

3:15-2; State v. Pitts, 116 N.J. 580, 601 (1989). A trial court

has "ample discretion" in deciding a motion for severance.

Pitts, supra, 116 N.J. at 601.

Pertinent here, severance may properly be denied where

evidence of one crime would be admissible at a separate trial

for the other crime. In construing Evidence Rule 55, the

predecessor to the current N.J.R.E. 404(b), the Court stated:

A critical inquiry is whether, assuming the

charges were tried separately, evidence of
the offenses sought to be severed would be
admissible under Evidence Rule 55 in the
trial of the remaining charges. Rule 55
precludes the admissibility of evidence of

19 A-6133-07T4
 other crimes to prove defendant's propensity
toward criminal conduct, but the Rule
expressly permits such evidence to prove
other facts genuinely in issue, such as
motive or intent.

[Id. at 601-02 (citations omitted).]

In turn, that analysis requires determining whether, in

fact, the evidence of another crime would be admissible under

N.J.R.E. 404(b). The evidence must be relevant to an issue that

is genuinely in dispute and it must be necessary to prove the

disputed issue. State v. Darby, 174 N.J. 509, 518 (2002); State

v. Oliver, 133 N.J. 141, 151 (1993). Further, "[w]ith respect

to other-crimes evidence . . . the potential for undue prejudice

need only outweigh probative value to warrant exclusion." State

v. Reddish, 181 N.J. 553, 608 (2004); State v. Chenique-Puey,

145 N.J. 334, 341 (1996). As the test was stated in State v.

Cofield:

1. The evidence of the other crime must be

admissible as relevant to a material issue;

2. It must be similar in kind and reasonably

close in time to the offense charged;

3. The evidence of the other crime must be

clear and convincing; and

4. The probative value of the evidence must

not be outweighed by its apparent prejudice.

[127 N.J. 328, 338 (1992).]

20 A-6133-07T4
 In this case, the crimes were similar, in that they were

sexually motivated attacks on women, which took place in the

same geographic area, in the same general time frame. R. 3:7-6.

The evidence of the other crimes would also have been admissible

under N.J.R.E. 404(b) if defendant had been tried for each crime

separately.

In the case of E.L.J., whom defendant hit with his car but

did not sexually assault, motive and intent would clearly have

been issues. Absent proof of a sexual motive, this incident

appeared to be nothing more than a traffic accident. The

State's theory was that defendant ran the victim down with his

car as part of a plan to sexually assault her. Evidence of

defendant’s violent, sexually motivated assaults on other women

in the same area in the same general time frame was relevant to

prove that his motive for attacking E.L.J. was sexual and that

he intended to rape her after he knocked her down with his car.

Defendant also exhibited a pattern or modus operandi of

driving around a neighborhood looking for a woman who was alone,

coming upon her from behind, attacking her unexpectedly and with

great violence, and then trying to rape her. In his confession,

he admitted this was his pattern, and the attack on E.L.J. fit

that pattern. Likewise his admission, in his confession, that

he had a plan to hunt down female victims and rape them, was

21 A-6133-07T4
relevant to show his intent regarding E.L.J. Evidence of

defendant’s violent attacks on other women in the same general

vicinity and time frame, and his pattern of attack, was also

relevant to establish his identity as the person who raped and

killed DiFrancesco.

The judge instructed the jury that they were to consider

the evidence concerning N.C. "for the limited purposes of

identification and motive as to the matters involving Krista

DiFrancesco and [E.L.J.]." He also instructed them that the

evidence was offered to explain the source of the forensic

evidence (the cigarette butt) which led the police to suspect

defendant’s involvement in the DiFrancesco murder. And he

instructed them that they could not use the evidence to decide

that defendant was a bad person, that he had a tendency to

commit crimes in general, or that "just because the defendant

committed other wrongs, that he must be guilty of the present

offenses in the Indictment."

In summary, we find that even if the cases were severed,

evidence of the other crimes would have been admissible at the

severed trials, and that the judge properly instructed the jury

as to the appropriate use of the evidence concerning N.C. We

find no abuse of the trial court’s discretion in denying

defendant’s severance motion. Pitts, supra, 116 N.J. at 601.

22 A-6133-07T4
 C.

In his Point III, defendant contends that the trial court

erred in failing to adjourn the sentencing to entertain a motion

from defendant to withdraw his guilty plea to the attack on N.C.

He also contends that the judge should not have met with all

counsel in chambers to discuss scheduling issues. Based on our

review of the record, this argument is without merit.

Defendant’s sentencing was scheduled for May 27, 2008. On

May 21, 2008, defendant’s father transmitted to the judge, ex

parte, a letter from defendant explaining that he had written to

his attorneys to express certain concerns. Defendant attached

the letter he had written to his attorneys, expressing some

concerns about his guilty plea. However, in that same letter,

he praised the attorneys and simply asked them to consider

whether his views were correct and to explain to him if they

were incorrect. The judge adjourned the sentencing to July 2

and ordered that any motions be filed by June 23, 2008.

At the request of defense counsel, the judge held a

scheduling conference with all counsel in his chambers on June

30. At that conference, a different attorney, who was planning

to represent defendant on appeal, requested that the sentencing

be postponed again. The judge denied that request. Although

defendant was apparently planning to retain new counsel, no

23 A-6133-07T4
substitution motion was filed, nor did defendant file a motion

to withdraw his guilty plea. Contrary to defendant's assertion

in his brief, defendant did not state at his sentencing that he

wanted to file a motion to withdraw his guilty plea. Cf. State

v. Hayes, ___ N.J. ___ (2011).

We find no abuse of the judge’s discretion in declining to

adjourn the sentencing a second time. See State v. Furguson,

198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J.

266 (1985). Nor do we find anything inappropriate in the judge

meeting with counsel in chambers, at the request of defendant’s

attorney, to discuss routine scheduling issues. See R. 1:2-2.

D.

Defendant next contends that the trial court should have

granted his motion to dismiss, on double jeopardy grounds, the

charges arising from the attack on E.L.J. This contention is

without merit and warrants no discussion beyond the following

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

After defendant hit E.L.J. with his car, a police officer

responded to the scene and issued defendant a traffic ticket for

careless driving. Defendant later pled guilty in municipal

court to a downgraded offense of unsafe operation of a motor

vehicle, N.J.S.A. 39:4-97.2, for which the court imposed $282 in

fines and costs. He was later indicted for attempted sexual

24 A-6133-07T4
assault, N.J.S.A. 2C:5-1a(3) and N.J.S.A. 2C:14-2c(1); attempted

kidnapping, N.J.S.A. 2c:5-1a(3) and 2C:13-1b(1); and aggravated

assault, N.J.S.A. 2C:12-1b(1) and -1b(2). On January 31, 2008,

defendant filed a motion to dismiss the criminal charges on

double jeopardy grounds.

In an oral opinion placed on the record on February 5,

2008, the trial judge denied the motion, because proof of the

indictable offenses would involve different elements and

different evidence than the municipal offense. See State v.

Yoskowitz, 116 N.J. 679, 693 (1989). We agree. We add the

following comments.

Once a defendant has been placed in jeopardy for an

offense, the Double Jeopardy Clause bars a later prosecution for

the same offense, an issue determined under the "same elements"

test, articulated in Blockburger v. United States, 284 U.S. 299,

303-304, 52 S. Ct. 180, 181-182, 76 L. Ed. 306, 309 (1932):

The applicable rule is that where the same

act or transaction constitutes a violation
of two distinct statutory provisions, the
test to be applied to determine whether
there are two offenses or only one, is
whether each provision requires proof of an
additional fact which the other does not.

In Illinois v. Vitale, 447 U.S. 410, 420, 100 S. Ct. 2260,

2267, 65 L. Ed. 2d 228, 238 (1980), the United States Supreme

Court later articulated the "same evidence" test, which our

25 A-6133-07T4
Court has construed as a separate route to proving a double

jeopardy violation10:

This test asks us to consider "whether the

evidence actually used to establish guilt in
the first prosecution is identical to that
which will be used in the second
prosecution. . . . If the same evidence
used in the first prosecution is the sole
evidence in the second, the prosecution of
the second offense is barred."

[State v. Yoskowitz, supra, 116 N.J. at 693

(quoting State v. DeLuca, 108 N.J. 98, 105-
06, cert. denied, 484 U.S. 944, 108 S. Ct.
3331, 98 L. Ed. 2d 358 (1987)).]

The offense to which defendant pled guilty in municipal

court makes it unlawful for "any person to drive or operate a

motor vehicle in an unsafe manner likely to endanger a person or

property." N.J.S.A. 39:4-97.2. The criminal offenses for which

defendant was charged involved elements that were completely

different than the elements of the minor traffic offense to

which he pled guilty. Those criminal offenses were also proven

with different evidence, including defendant's admission that he

10
This test is different from the "same conduct" test, which the
Supreme Court rejected in United States v. Dixon, 509 U.S. 688,
113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993)(overruling Grady v.
Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548
(1990)). We need not attempt to predict here whether, following
Dixon, the same evidence test may eventually be deemed part of
the same elements test, instead of a separate avenue by which a
defendant may establish a double jeopardy violation. As an
intermediate appellate court, we follow Yoskowitz. See State v.
Hand, 416 N.J. Super. 622, 630-31 (App. Div. 2010).

26 A-6133-07T4
intentionally hit E.L.J. with the car as a substantial step in

his plan to injure her, force her into his car and rape her, and

her testimony that after defendant hit her with his car, he

began pursuing her around the vehicle. We find no error in the

trial court's decision to deny the double jeopardy motion.

E.

We turn next to defendant's challenges to the DNA evidence.

Defendant contends that the State failed to prove the

reliability of the STR method of DNA testing, an issue he did

not raise in the trial court.11 We reject this argument for the

reasons cited in our companion opinion. Kornberger, supra, slip

op. at 31-32; see State v. Callaia, 414 N.J. Super. 125, 149

(App. Div.), certif. granted, 204 N.J. 41 (2010); State v.

Deloatch, 354 N.J. Super. 76 (Law Div. 2002). We note in

addition that the State's expert testified without contradiction

that "[t]he STR [method of] analysis is the current forensic

standard employed by all forensic DNA laboratories in the United

States."

Defendant also seeks reconsideration of an issue we decided

on the merits on the State's interlocutory appeal during the

11
Defendant also raises an issue concerning the scientific
certainty of the results of the testing. We rejected that same
contention in Kornberger, supra, slip op. at 32-33. No further
discussion is warranted here. R. 2:11-3(e)(2).

27 A-6133-07T4
trial. This is how the issue arose. On March 6, 2008, during

the trial, the judge conducted a N.J.R.E. 104(a) hearing as to

the admissibility of testimony from Pineda, a forensic expert

who had not actually conducted the tests on the DNA samples, but

had supervised the individual who performed the testing.

Pineda testified that, at the time of the testing, she was a

senior analyst for Reliagene whose duties included assigning and

reviewing cases. An analyst would perform the lab work, and she

would review the analyst's bench notes and final data in order

to reach an independent conclusion as to whether the tests were

properly conducted and the results were accurate.

According to Pineda's testimony at the N.J.R.E. 104

hearing, any DNA expert who reviewed the data and bench notes

could draw a reasonable certain conclusion about the results

without retesting the samples. She testified that this often

occurs when experts are retained by defense counsel to testify

about tests that were conducted by the State's experts. In

fact, Pineda noted that this was the standard practice within

the industry, and that the majority of her expert testimony in

other trials involved findings made by another analyst. She

explained that the junior analysts perform the lab work, while

senior analysts "review the test, write the report, sign the

report and testify in court." In support of her assertion,

28 A-6133-07T4
Pineda added that FBI analysts follow the same procedure.

She explained that in this case, an analyst named Mark

Tidwell performed the testing on the anal swab samples from

DiFrancesco. After the first round of testing, it was

discovered that contamination had occurred in the process, so

Tidwell retested the samples. Pineda, however, was responsible

both for comparing the final results to defendant's DNA profile

and for performing the statistical analysis.

Pineda asked Tidwell how the contamination occurred, but he

was unable to provide an explanation. Since the contamination

was not noted in Tidwell's bench notes, Pineda concluded it must

not have been obvious when it happened. Because it was still

present when the sample was retested, she was able to determine

that the contamination occurred during the extraction step.

Specifically, Pineda concluded that Tidwell used improperly

sterilized scissors when cutting the anal swab sample.

Nevertheless, Pineda was able to conclude to a reasonable

degree of scientific certainty that the sample contained genetic

markers consistent with defendant's profile. She explained that

the contamination had no effect on her final conclusion because

the result would have been the same without it.

Her testimony on this point was later corroborated by

another expert, Robert Shaler, who confirmed that even though

29 A-6133-07T4
the sample was contaminated with DNA material from a third

party, it was still possible to determine whether defendant's

DNA was also on the sample. Significantly, Pineda confirmed

that Tidwell could not have contaminated the swab by adding

defendant's DNA material to it, because Reliagene never had any

of defendant's DNA samples. Those samples were analyzed by

another laboratory, which created a report of his DNA profile

and provided Reliagene with a copy of the report.

In deciding to exclude Pineda's testimony at trial, the

judge reasoned that allowing her to testify about testing she

had not performed would "violate[] the spirit of" Crawford v.

Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004). Therefore, because defendant was unable to confront

"the underlying information," he barred Pineda's testimony.

We granted the State's motion for leave to appeal and

decided the merits of the issue. We determined that the

testimony was admissible for the following reasons:

The State has represented that it is not

seeking to introduce the analysts' bench
notes into evidence. The State may produce
Ms. Pineda as an expert witness to render
opinions subject to the limitations
contained in N.J.R.E. 703. Since no
documentary hearsay is sought to be
introduced, permitting Ms. Pineda, the
supervisor who did not perform the actual
bench testing, to render opinion testimony
does not violate the Sixth Amendment
Confrontation Clause because defendant has

30 A-6133-07T4
 the opportunity to challenge the bases of
her opinions, the reliability of Mark
Tidwell's testing of the anal swab and the
circumstances of his employment with
ReliaGene, her credibility, and related
issues. See Crawford v. Washington, 541
U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004).

[Order on Emergent Appl., State v.

Kornberger, No. A-6133-07, slip op. at 2
(App. Div. Mar. 10, 2008).]

Following our ruling, Pineda testified at the trial, and

the defense cross-examined her extensively about the bases for

her opinions, including Tidwell's errors and the significance of

the contaminated sample. The jury then had the opportunity to

decide what weight to give her testimony.

We consider our ruling to be the law of the case and we

decline to reconsider it. C.P. v. Twp. of Piscataway Bd. of

Educ., 293 N.J. Super. 421, 431 (App. Div. 1996). We add only

the following comments.

We are aware that the Supreme Court recently granted a

petition for certiorari in Bullcoming v. New Mexico, 131 S. Ct.

62, 177 L. Ed. 2d 1152 (2010), a case that presents a very

similar issue. We are guided by present law, which includes the

Supreme Court's recent decision in Melendez-Diaz v.

Massachusetts, ___ U.S. ___, 129 S. Ct. 2527, 174 L. Ed. 2d 314

(2009). That decision contains the following instructive

language:

31 A-6133-07T4
 Contrary to the dissent's suggestion, we do
not hold, and it is not the case, that
anyone whose testimony may be relevant in
establishing the chain of custody,
authenticity of the sample, or accuracy of
the testing device, must appear in person
as part of the prosecution's case. While the
dissent is correct that "[i]t is the
obligation of the prosecution to establish
the chain of custody," this does not mean
that everyone who laid hands on the evidence
must be called. . . . "[g]aps in the chain
[of custody] normally go to the weight of
the evidence rather than its admissibility."
It is up to the prosecution to decide what
steps in the chain of custody are so crucial
as to require evidence; but what testimony
is introduced must (if the defendant
objects) be introduced live. Additionally,
documents prepared in the regular course of
equipment maintenance may well qualify as
nontestimonial records.

[Id. at 2532 n.1, 174 L. Ed. 2d at 322 n.1

(internal citations omitted).]

Melendez-Diaz held that under Crawford, the State could

not, over defendant's objection, rely on a laboratory

certificate to prove that seized material was cocaine; the State

needed to present live testimony on that issue. Id. at 2532,

2542, 174 L. Ed. 2d at 321-22, 332-33. However, the Court did

not address the issue of which expert was required to testify.

Although it is not directly on point, we also note that in the

recent case of Michigan v. Bryant, ___ U.S. ___, 131 S. Ct.

1143, ___ L. Ed. 2d ___ (2011), the Court declined to extend

32 A-6133-07T4
Crawford to bar testimony concerning a dying crime victim's

excited utterance. Id. at 1167.

Finally, even if the DNA evidence had been admitted in

error, on this record the error would have been harmless. The

record includes defendant's detailed videotaped confession; his

poetry describing the pleasure he derived from raping and

killing women, including details similar to the DiFrancesco

murder; and an eyewitness who saw defendant prowling in

DiFrancesco's neighborhood near the time of the crime at 2:30

a.m. Beyond a reasonable doubt, defendant would have been

convicted even without the DNA evidence.

F.

Defendant next contends that the prosecutor made improper

comments in summation. Defense counsel did not object to any of

the comments he now challenges on appeal, and with good reason.

None of them were improper. This point merits no discussion

beyond the following comments. R. 2:11-3(e)(2).

At one point in his summation, the prosecutor referred to

a portion of defendant's statement in which he denied committing

certain crimes. However, the prosecutor did not argue to the

jury that defendant committed those crimes, but rather that he

had not committed them. The remarks were aimed at rebutting

defense counsel's argument that the confession was a product of

33 A-6133-07T4
police coercion and that defendant would have confessed to

whatever the police wanted him to admit. The gist of the

prosecutor's comments was that defendant was able to freely

admit to crimes he committed and deny those he did not commit.

This evidence was the subject of a thorough in limine hearing;

it was properly admitted; and the prosecutor properly commented

on it in summation.

G.

Finally, defendant argues that his sentence was "manifestly

excessive." Our review of the trial judge's sentencing decision

is very limited. State v. Bieniek, 200 N.J. 601, 607-08 (2010).

In imposing the sentence, the judge issued a cogent oral opinion

on July 2, 2008, with which we completely agree. We need not

recite his entire opinion. The following excerpts will suffice.

The judge described the attack on DiFrancesco as follows:

[T]his is . . . probably one of the most

brutal offenses that I have been exposed
[to] as a judge. . . . [Defendant] stalked
the victim. The victim was stabbed more than
16 times. One of those stab wounds . . .
went through her eye into her brain and then
he undressed her and sexually assaulted her
both vaginally and anally. . . . [T]he
defendant knew that the victim was incapable
of exercising normal resistance.

The judge also considered the risk that defendant would

commit another crime, as evidenced by his convictions for the

additional attacks on women in Camden County, and "the Avenel

34 A-6133-07T4
report which indicates . . . that basically Mr. Kornberger is a

sociopath." The judge further found that defendant was "probably

one of the most dangerous individuals I have ever come across .

. . because of the random nature of his attacks."

The judge further explained the reasons for the length of

each sentence for each crime, as well as the reasons for

imposing consecutive sentences pursuant to State v. Yarbough,

100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.

Ct. 1193, 89 L. Ed. 2d 308 (1986).

In sentencing defendant, the judge merged the convictions

for the murder and felony murder of DiFrancesco, and imposed a

life sentence. He imposed a separate, consecutive fifteen-year

NERA sentence for the aggravated sexual assault on DiFrancesco,

because that was a "separate act[] of violence." Defendant's

argument that the convictions for sexually assaulting

DiFrancesco should merge into his conviction for murdering her

is without merit. Those convictions do not merge. See State v.

Cole, 120 N.J. 321, 330-33 (1990); State v. Adams, 227 N.J.

Super. 51, 61-63 (App. Div.), certif. denied, 113 N.J. 642

(1988).

Defendant's remaining contentions — including his argument

that he was entitled to credit for "renunciation" because he did

not complete his attacks on N.C. and E.L.J. — are without

35 A-6133-07T4
sufficient merit to warrant discussion in a written opinion.

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

In summary, we find no error in any of the judge's

sentencing decisions. This defendant was appropriately given a

sentence that will insure he spends the rest of his life in

prison.12

Affirmed.

12
We note one typographical error in the judgment of conviction.
Although count fourteen recites the correct statute, N.J.S.A.
2C:14-2c(1), the crime is described as "Criminal Attempt-
Substan[.] Step; Kidnap-Crime/Flight" The correct description is
"criminal attempted sexual assault." Rather than remand for
that very limited purpose, we hereby order that the judgment of
conviction be amended to correct that typographical error.

36 A-6133-07T4