June 26, 2013
STATE OF NEW JERSEY IN THE INTEREST OF J.L., A Juvenile.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part Juvenile, Ocean County, Docket No. FJ-15-403-12.
Willis & Gresek, P.C., attorneys for appellant J.L. (Stephen L. Willis, of counsel and on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent State of New Jersey (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).
Before Judges Fuentes and Hayden.
By leave granted, the State appeals from a May 25, 2012 Law Division order permitting defendant to obtain a copy of digital evidence in discovery and share it with his expert under a protective order.
On September 20, 2011, defendant J.L., a juvenile, was charged with possession and distribution of child pornography, N.J.S.A. 2C:24-4b(5)(a) and (b), which if committed by an adult constitutes a crime. During pretrial proceedings, a discovery dispute arose. In response to defendant's request for a copy of all discovery, the State provided limited written discovery and refused to turn over a digital copy of the underlying data that formed the basis of the charges against defendant.
On February 22, 2012, defendant filed a motion to compel the State to provide all discovery, including a digital copy of the underlying data, and proposed a protective order. On April 24, 2012, the State filed a motion to compel defendant to review the digital data in the prosecutor's office. The trial judge issued a written opinion, which permitted provision of the requested discovery, subject to the terms of a detailed protective order. This interlocutory appeal followed.
On June 13, 2013, our Supreme Court issued its opinion in State v. Scoles, __ N.J. __ (2013), addressing the critical question in this appeal. The Court noted that this important discovery issue, which has increasingly arisen in child pornography criminal trials, needed a consistent statewide approach.
Scoles , supra, __ N.J.__ (slip op. at 3). The Court established a template in order to strike a balance between a defendant's right to discovery and the public's interest in protecting child pornography victims
Id. at __ (slip op at 4) We recognize that the protective order here provides many of the components the Court deemed necessary to protect the defendant and the child victim
Id. at __ (slip op at 25-29) However as the order was written without the benefit of the new template we reverse the protective order and remand to the trial court to consider the issue anew consistent with the Supreme Court's mandate in Scoles
Reversed and remanded We do not retain jurisdiction