No. A-40-16 (078900)

May 10, 2017 (Date Decided)

Judge Rabner

FOR APPELLANT: Elie Honig, Director, Division of Criminal Justice, Office of the Attorney General (Christopher S. Porrino, Attorney General, attorney; Claudia Joy Demitro, Deputy Attorney General, of counsel and on the briefs).

FOR RESPONDENT: Joseph E. Krakora, Public Defender (Joseph E. Krakora, Public Defender, attorney; Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the briefs).

The state appealed from the order of the appellate division that affirmed the trial court’s order directing the state to disclose various evidence in a pretrial detention hearing. Defendant was arrested for first-degree murder and related weapons offenses. According to the supporting affidavit of probable cause, two eyewitnesses saw the shooting; one identified defendant from a six-person photo array, while the other identified a photo of defendant. The preliminary law enforcement incident report further added that a surveillance camera recorded the shooting. Pursuant to the Criminal Justice Reform Act, the state moved for pretrial detention, relying on the hearsay statements in the affidavit of probable cause, the presumption of detention under CJRA based on defendant’s murder charge, defendant’s criminal history, and the recommendation of the public safety assessment. The trial court directed the state to disclose the two eyewitnesses’ statements, the photos used in the identification process, the surveillance video, and any incident report prepared by the police. On appeal, the court affirmed the trial court’s order to the extent it required disclosure of any reports prepared by the police or the eyewitnesses and the photos used in identification, but reversed as to the disclosure of the surveillance video. The court noted the concern in avoiding turning a detention hearing into a mini-trial with too expansive a scope of discovery. Thus, the court ruled that the complaint, PSA, affidavit of probable cause, any PLEIR, and all statements and reports relating to the affidavit of probable cause or upon which the state based its finding of probable cause had to be disclosed in a detention hearing. However, the court ruled that statements and reports relating to items disclosed in the PLEIR did not need to be disclosed. Moreover, the court exempted video and audio files, to the extent they were not exculpatory. Lastly, in a dissenting opinion, Justice Albin disagreed with the majority’s decision to redraft the rule governing discovery for detention hearings, noting that it relied on artificial distinctions between evidence containing the same facts, and incentivized prosecutors to place information in the PLEIR where it would be nondiscoverable.