No. A-2023-15T2

Oct. 4, 2017 (Date Decided)

Judge Ostrer

FOR APPELLANT: Joseph E. Krakora, Public Defender (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

FOR RESPONDENT: Jennifer Webb-McRae, Cumberland County Prosecutor (Danielle R. Pennino, Assistant Prosecutor, of counsel and on the brief).

Defendant appealed from his conviction for possession with intent to distribute. Defendant was arrested after giving a false name and lacking a valid driver’s license during a traffic stop for a motor vehicle violation. While being booked, officers began thoroughly searching defendant; officers noticed a bulge in defendant’s sock, and upon asking him to remove the sock discovered packets of heroin.

At trial, the state’s case rested only on the testimony of the arresting officer, as the recording of the search from the booking room’s video cameras had been destroyed despite defense counsel’s written request to preserve and produce the tape. The trial court denied defendant’s request for an adverse inference jury instruction with respect to the videotape, holding that there was no finding of bad faith to support an adverse inference charge; the trial court also denied defendant’s motion to bar evidence of his hindering apprehension.

On appeal, defendant challenged the trial court’s denial of his motions. Defendant also challenged his sentence. The court agreed that the trial court erred in denying defendant’s motions, and vacated his conviction. The court noted that defendant would have been entitled to discovery of the video post-indictment, since it would have tended to prove or disprove the officer’s allegation that defendant had heroin in his sock. The court ruled that the state therefore had a duty to presence evidence pre-indictment where it would likely be produced in discovery and where a defendant requests its preservation, as defense counsel did prior to defendant’s indictment. The court further held that such a rule was necessary to prevent the state from destroying evidence prior to its disclosure obligation attaching post-indictment.

The court ruled that an adverse inference charge was a necessary, just remedy, and would require the trial court to instruct the jury that the state had a duty to produce the evidence following indictment, and that the state’s destruction of such evidence permitted the jury, at its discretion, to draw the inference that the evidence was unfavorable to the state. The court held that reversal of defendant’s conviction in this case was warranted because the trial court, in addition to denying defendant’s charge request, took no further action to remedy the state’s destruction of the videotape. The court rejected the state’s contention that defendant was obligated to show it acted in bad faith, holding that bad faith was unnecessary to show a discovery violation.