Submitted May 16, 2017
appeal from the Superior Court of New Jersey, Law Division,
Cumberland County, Indictment No. 14-07-0587.
E. Krakora, Public Defender, attorney for appellant (Daniel
V. Gautieri, Assistant Deputy Public Defender, of counsel and
on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney
for respondent (Danielle R. Pennino, Assistant Prosecutor, of
counsel and on the brief).
Judges Fisher, Ostrer and Vernoia.
a valid driver's license, defendant was caught giving a
false name during a traffic stop for a motor vehicle
violation. The officer arrested defendant for hindering
apprehension and took him down to the station. While in the
booking room, the arresting officer searched defendant more
thoroughly. The officer testified that once defendant removed
his shoes he noticed a bulge in defendant's sock. He felt
it. Drugs, he thought, and asked defendant to remove his
sock, which revealed multiple packets of heroin.
booking room's two motion-sensitive video cameras likely
recorded the search. Yet, at defendant's jury trial on
the drug possession charge - the hindering charge was not
pursued - the State's case rested only on the
officer's word. That is because the State allowed the
booking room tape to be destroyed, despite defense
counsel's prior written request that the State preserve
and produce it.
trial court denied his timely request to instruct the jury
that it could draw an adverse inference from the tape's
destruction. The trial court also denied defendant's
pre-trial request to bar evidence that defendant hindered
apprehension. The jury ultimately found defendant guilty of
possessing heroin, and the court sentenced defendant, a
repetitive offender, to a five-year term of imprisonment,
with a two-year period of parole ineligibility.
presents two significant issues on appeal. First, was
defendant entitled to an adverse inference charge to remedy
the police's routine destruction of the video where the
defense expressly requested it be preserved? We conclude he
was. In particular, we hold that when the State refuses a
defendant's diligent pre-indictment request to preserve
and produce recordings, which the State or its law
enforcement agencies created and are directly relevant to
adjudicating an existing charge, the defendant is entitled to
an adverse inference charge. Second, did the court err in how
it handled the evidence of hindering apprehension? We
conclude it did. The evidence was inadmissible under N.J.R.E.
404(b) for its proffered purpose and, in any event, the
court's instruction was inadequate. As these errors were
not harmless, we reverse the conviction, and do not reach
defendant's challenge to his sentence.
addressing each issue presented on appeal, we briefly review
its procedural background.
begin with the destruction of evidence. Five days after
defendant's arrest, his attorney sent the prosecutor a
discovery demand, which asked the State to preserve and
produce "all video tapes, audio tapes or photographs,
including but not limited to police vehicle video tapes, 911
tapes, police and emergency personal [sic] dispatch tapes,
[and] booking room tapes . . . ." (Emphasis
added). The letter also "request[ed] that all evidence
be preserved, protected and produced, " and that
"the State inform defense counsel in a timely fashion
should the State learn that any evidence . . . relevant to
this case . . . is about to destroyed . . . . The State did not
respond, nor did it notify the police to preserve the booking
trial, the defense did not elicit evidence regarding its
letter. Rather, it focused on the arresting officer's
independent decision not to preserve the recording. A
sergeant confirmed at trial that the cameras would have
recorded a suspect held in the bench area where defendant was
searched. However, the recordings were routinely overwritten
after thirty days.
arresting officer testified that he took no steps to preserve
the recording. He claimed he only requested preservation of
tapes to record incidents he did not see; therefore, there
was no reason for him to request the tape's preservation.
Yet, the sergeant testified officers could request the
preservation of tapes "for almost any reason, " and
often did. He added that officers typically requested videos
of incidents they did observe, noting that officers preserved
tapes to refresh their recollection at trial. As the
arresting officer did not request the video, it was erased
thirty days after defendant's arrest.
grand jury indicted defendant less than a month after the
erasure. By that point, there was no recording for
the State to produce. In justifying its inaction, the
prosecutor later contended her office had no responsibility
to produce any discovery pre-indictment, although she
essentially conceded the case had been referred to her office
by the time defense counsel served the letter requesting
preservation of the booking room recording. She said that
defense counsel could have submitted the discovery request
directly to the police department. The prosecutor also noted
that the request was a "form letter, " and
suggested that whether the recordings possessed evidence
material to the defense was speculative.
moved before trial to dismiss the indictment on the ground
that destruction of the videorecording violated his right to
due process. The court denied the motion, finding the police
did not act in bad faith. That decision is not before us.
court reserved decision on defense counsel's alternative
request for an adverse inference jury instruction. However,
when counsel renewed the request at trial, a different judge
court held there was no binding authority that required the
State to preserve the recordings in response to a letter to
the prosecutor's office. Noting the prior finding of no
bad faith, the judge stated he would have viewed the matter
differently had defense counsel sent the request directly to
the police. The judge stated that an adverse inference charge
would "tell the jury the police did something wrong,
" which the court declined to do. When defense counsel
renewed the request before summations, the court added that
defense counsel had thoroughly examined the issue at trial
and could address it in closing.
defense did. The absence of video was a major theme of the
short trial. The defense's sole witness was the sergeant
in charge of preserving booking room recordings. The defense
highlighted the absence of the surveillance footage, and
focused on the arresting officer's decision not to
preserve the video, despite the sergeant's testimony that
officers often did. In summation, the defense referred to
cases in the news of police misconduct and misrepresentations
ultimately belied by bystanders' recordings. The
prosecutor responded that the officer was not required to
preserve the recording and that there was no evidence of
"foul play." The prosecutor contended that
reference to the lost recording was a "smoke
screen" and that the officer's observation of drugs
met the State's burden.
first point on appeal, defendant contends:
THE TRIAL JUDGE ERRED IN FAILING TO PROVIDE JURORS WITH AN
ADVERSE-INFERENCE OR CURATIVE INSTRUCTION AFTER THE STATE
FAILED TO PRESERVE THE VIDEOTAPE OF THE ALLEGED CRIME,