January 23, 2018
appeal from Superior Court of New Jersey, Law Division,
Burlington County, Indictment Nos. 17-05-0471.
Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the
cause for appellant in A-1780-17 and respondent in A-2051-17
(Scott A. Coffina, Burlington County Prosecutor, attorney;
Jennifer B. Paszkiewicz, of counsel and on the brief; Nicole
Handy, Assistant Prosecutor, of counsel and on the brief in
Kay Lord argued the cause for respondent in A-1780-17 and
appellant in A-2051-17.
Judges Yannotti, Carroll, and Leone.
State has charged defendant Brandon M. Washington with two
counts of attempted murder, and he is awaiting trial. In
Docket No. A-1780-17, the State appeals the trial court's
orders on November 2 8 and 29, 2017, and its denial of
reconsideration on December 6, 2017. Those orders excluded
the State's DNA evidence, denied its motion for a
postponement of trial, and rejected its request for
excludable time under N.J.S.A. 2A;I62-22, the speedy trial
statute in the Criminal Justice Reform Act (CJRA), N.J.S.A.
2A:162-15 to -26. In Docket No. A-2051-17, defendant appeals
the trial court's orders dated December 12 and 22, 2017,
granting excludable time. We consolidate these back-to-back
appeals for purposes of our opinion.
the State Police Lab's draft DNA report was not
"within the possession, custody or control of the
prosecutor" until the lab sent it to the county
prosecutor, and in any event was not discoverable until the
report was reviewed and approved by the lab. R.
3:13-3 (b) (1) (C) . Regardless of the speedy trial
provisions, the trial court abused its discretion by
excluding the DNA evidence rather than granting a continuance
of trial under Rule 3:13-3(b)(1)(I) and -3(f), given
the evidence's importance and the absence of surprise,
prejudice, or a design to mislead.
hold that under the speedy trial rule and statute, a case may
be "complex" if it has "complicated evidence,
" but time is excludable only if the complexity makes it
unreasonable to expect adequate preparation for trial in the
speedy trial period. R. 3:5-4(i)(7); see
N.J.S.A. 2A: 162-22 (b) (1) (g) . Moreover, the provision
addressing failures to produce discovery is a limit on
excludable time. N.J.S.A. 2A:162-22(b)(2). The court properly
excluded time sua sponte under N.J.S.A. 2A;I62-22(b)(1)(c),
and retained jurisdiction to do so after the State sought and
obtained leave to appeal. That provision excludes the time
while an emergent relief request, or interlocutory appeal, is
pending in this court. Time while the trial is stayed is
excludable under N.J.S.A. 2A:162-22(b)(1)(1).
result, we affirm in part, reverse in part, and vacate in
part in A-1780-17. We affirm as modified in A-2051-17.
State alleges that, on February 16, 2017, defendant shot two
men in the Veterans of Foreign Wars (VFW) Hall in
Willingboro. The State asserts that after defendant fled, a
pair of eyeglasses was found at the VFW Hall in the area
where he struggled with one of the men. The State claims
defendant was seen wearing similar eyeglasses both in a video
taken minutes before the shooting, and in photographs on
Burlington County Prosecutor's Office (BCPO) obtained DNA
swabs from defendant and the two victims. On March 2, the
BCPO took the swabs and the eyeglasses to the Central
Regional Laboratory (State Police Lab) of the New Jersey
State Police (NJSP).
the State arrested defendant and successfully moved for
pretrial detention. On May 25, a grand jury indicted
defendant with two counts of attempted murder in violation of
N.J.S.A. 2C:5-1(a)(3) and N.J.S.A. 2C:11-3(a)(1). The court
scheduled defendant's trial to begin November 28, and set
defendant's release date as December 2.
November 16, the BCPO received an email from the State Police
Lab attaching the one-page DNA lab report signed by
"Christine Bless, Forensic Scientist I." The lab
report stated that "[a] mixture of DNA profiles
consistent with at least two contributors was
identified" on the eyeglasses, and that defendant was
"the source of the major DNA profile obtained." The
BCPO emailed the lab report to defendant's counsel that
November 17, the State filed a motion to declare that this
was a complex case and that the sixty days from November 17,
2017 to January 17, 2018, were excludable time under N.J.S.A.
2A;162-22(b)(1)(g). The State also asked for a sixty-day
adjournment of trial. Defendant orally moved to exclude the
November 2 8 hearing on the motions, the trial court found
this was not a complex case, and denied the State's
request for sixty days of excludable time. The court granted
excludable time from the November 17 filing of the
State's motion to its disposition on November 28,
extending defendant's release date to December 13.
November 2 9 letter-opinion, the trial court granted
defendant's motion to prohibit the State from introducing
the DNA evidence and denied the State's motion for an
adjournment of trial. The court later issued corresponding
November 30, the State filed a motion for reconsideration. It
attached a certification from the prosecutor stating what he
had learned concerning the timing in the State Police Lab.
Defense counsel argued the prosecutor's certification was
not based on personal knowledge as required under
Rule 1:6-6. The court gave the State until December
5 to provide a certification from someone at the State Police
December 1, the State provided a certification based on
personal knowledge from Bless of the State Police Lab. Her
certification stated as follows. The eyeglasses and swabs
were submitted by the BCPO to the State Police Lab on March
2. The eyeglasses were processed on March 3, and a swab from
the eyeglasses was submitted for analysis on March 10. On
July 20, Bless was assigned to analyze this evidence for DNA
as a Forensic Scientist I. On July 25, Bless generated a lab
report containing the result of her analysis, namely that
there was a mixture of DNA profiles in which defendant was
the major contributor.
certification then described the review process:
6. On or about August 8, 2017 the required technical (peer)
review of this case file was initiated. Shortly thereafter,
the case file was forwarded to the NJSP DNA Technical Leader
for approval of the DNA profile interpretation of [the swab
from the eyeglasses]. This approval was required due to
recent changes to the interpretation guidelines in the NJSP
7. Due to a number of factors including, but not limited to,
the current work load of the NJSP DNA Technical Leader, her
supervisory responsibilities, NJSP DNA Laboratory management
requirements including Bail Reform and expedited cases which
affect the prioritization of case file review, the approval
of the DNA profile interpretation of [the swab from the
eyeglasses] was completed on November 3, 2017.
8. On November 3, 2017, the case file was returned to the
technical (peer) reviewer in order to complete this review.
The technical (peer) review was completed November 3, 2017.
9. Shortly thereafter, the DNA case file was submitted to a
Forensic Scientist 3 to conduct the required administrative
review. This administrative review was completed on November
10. Due to clerical staff shortages, the finalized and
approved DNA report was digitized and emailed from the NJSP
DNA Laboratory to the Burlington County Prosecutor's
Office on or about November 16, 2017.
prosecutor gave further explanation in his own certification
and oral argument. He argued that during this period the
State Police Lab "went from analyzing 15 allele sites to
26 allele sites which results in more accurate
testing." He certified this "recent change in
the science and method by which interpretation of mixtures of
DNA are conducted made the NJSP Lab Technical Leader the only
employee qualified to interpret DNA mixtures in the absence
of approved scientific procedures for this manner of
analysis, " resulting in a "large number of cases
which had to be analyzed by the NJSP DNA Lab Technical
Leader." The prosecutor argued this temporary problem
was subsequently resolved because protocols for such analysis
December 6 hearing, defense counsel objected to the form of
the certifications,  and to the failure to produce the full DNA
packet. The court expressed concern at these
shortfalls but, "assuming for the sake of argument"
the certifications were proper, the court denied
reconsideration. The court granted the State's motion for
a stay through December 7 to allow the State to file an
emergent interlocutory appeal to this court.
December 7, we granted the State's application for
permission to file an emergent motion. We stayed trial
pending resolution of the emergent motion, and ordered
briefing on the motion to be completed by December 14. On
December 12, the trial court ruled the period between
December 6 and December 14 was excludable time.
December 14, we granted the State's emergent motions for
leave to appeal and for a stay of trial pending appeal. We
expedited the appeal. We did not stay defendant's release
from detention if authorized by law. On December 22, the
trial court ruled the period between December 14, 2017, and
February 28, 2018, was excludable time, and denied
defendant's motion for a stay pending appeal of its
December 12 and 22 orders. On December 23, we granted
defendant's application to file an emergent motion. On
January 9, 2018, we granted defendant's emergent motion
for leave to appeal the December 12 and 22 orders, but denied
his motion for a stay.
appeal, the State raises the following issues:
POINT I - THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
THE STATE'S MOTION FOR 60 DAYS OF EXCLUDABLE TIME
PURSUANT TO N.J.S.A. 2A;162-22b(1)(d) and (g).
POINT II - EVEN IF THIS HONORABLE COURT CONCLUDES THAT THE
STATE VIOLATED R. 3:13-3b(1)(i), EXCLUSION OF THE
DNA EVIDENCE IS NOT THE APPROPRIATE REMEDY.
POINT III - IF THIS HONORABLE COURT DETERMINES THAT THE TRIAL
COURT PROPERLY DENIED THE STATE'S MOTION FOR
RECONSIDERATION OF THE TRIAL COURT'S DENIAL OF ITS MOTION
FOR EXCLUDABLE TIME, THE COURT MUST REMAND THE MATTER TO THE
TRIAL COURT FOR CONSIDERATION OF THE STATE'S ARGUMENT
THAT DEFENDANT MUST BE DETAINED PURSUANT TO N.
J.S.A. 2A;I62-22B(2) AND R. 3:25-4c(2).
appeal raises the following substantive point:
THIS COURT SHOULD ORDER DEFENDANT'S IMMEDIATE RELEASE
BECAUSE THE TRIAL COURT LACKED JURISDICTION TO ENTER ITS
DECEMBER 12, 2017 AND DECEMBER 22, 2017 ORDERS PRECLUDING HIS
RELEASE. IN ADDITION, THE TRIAL COURT'S ORDERS PRECLUDING
DEFENDANT'S RELEASE PENDING APPEAL ARE CONTRARY TO THIS
COURT'S DECEMBER 14, 2017 ORDER STATING THAT
DEFENDANT'S RELEASE IS NOT STAYED PENDING APPEAL.
first consider the State's appeal of the exclusion of its
DNA evidence as a discovery sanction. We must hew to our
standard of review. "A trial court's resolution of a
discovery issue is entitled to substantial deference and will
not be overturned absent an abuse of discretion."
State v. Stein, 225 N.J. 582, 593 (2016). We
"need not defer, however, to a discovery order that is
well 'wide of the mark, ' or 'based on a mistaken
understanding of the applicable law.'" State
v. Hernandez, 225 N.J. 451, 461 (2016)
(citations omitted). "Our review of the meaning or scope
of a court rule is de novo; we do not defer to the
interpretations of the trial court . . . unless we are
persuaded by [its] reasoning." State v. Tier,
228 N.J. 555, 561 (2017).
3:13-3 requires the prosecutor to provide the defendant the
"results or reports of physical or mental examinations
and of scientific tests or experiments made in connection
with the matter or copies thereof, which are within the
possession, custody or control of the prosecutor."
R. 3:13-3(b)(1)(C). The BCPO turned over the DNA
report on the same day the BCPO received it from the State
Police Lab. However, the trial court rejected the BCPO's
argument that the State Police Lab as a State agency is not
under the control of a county prosecutor's office.
we have ruled that "[t]he State is not obliged to
produce testing-related documents unless they 'are within
the possession, custody or control of the
prosecutor.'" State v. Robertson, 438
N.J.Super. 47, 68-69 (App. Div. 2014) (quoting R.
3:13-3(b)(1)(C)), aff'd on other grounds, 228
N.J. 138 (2017). Thus, in Robertson, we held the
prosecutor had no obligation to provide the defendant with
testing results generated by the private manufacturer of a
breathalyzer device when the State returned the device to the
manufacturer for service, because "[t]here is no
evidence in the record to indicate that the State controls
the repair-related data generated by" the manufacturer.
Id. at 56, 69.
on Robertson, we have held a prosecutor had no
obligation to provide reports of physical or mental
examinations of the crime victim because there was "no
evidence the State possessed the various records defendant
sought." State v. Kane, 449 N.J.Super. 119, 133
(App. Div. 2017). "[E]vidence in the control of a crime
victim - notwithstanding the victim's close cooperation
with the prosecution - is not within the prosecutor's
'possession, custody or control.'"
Ibid, (quoting Robertson, 438 N.J. Super,
at 69). Both Kane and Robertson cited our
Supreme Court's decision that a crime victim's home
is not "within the possession, custody or control of the
prosecutor" under Rule 3:13-3(b)(1)(E).
State in Interest of A.B., 219 N.J. 542, 556 (2014).
Supreme Court has also delineated the scope of "the
possession, custody and control of the prosecutor"
regarding law enforcement officers. State v. W.B.,
205 N.J. 588, 608 (2011) (quoting R. 3:13-3 (c) (6), (7) and
(8) (2007)). The Court held Rule 3:13-3
"encompasses the writings of any police officer under
the prosecutor's supervision as the chief law enforcement
officer of the county." Id. at 608. "If a
case is referred to the prosecutor following arrest by a
police officer as the initial process, or on a complaint by a
police officer, local law enforcement is part of the
prosecutor's office for discovery purposes."
Ibid, (citations omitted); see State v.
Richardson, 452 N.J.Super. 124, 133, 138 (App. Div.
our Supreme Court's interpretation of Rule
3:13-3 in W.B., the trial court erred in ruling that
Bless's July 25 draft report was "within the
possession, custody or control of the [county]
prosecutor" when it was actually in the possession
custody, and control of the State Police Lab. R.
3:13-3(b)(1)(C). A county prosecutor has no supervisory
authority over the State Police Lab, which is part of the
NJSP. The NJSP is a Division within the Department of Law and
Public Safety, which is headed and supervised by the Attorney
General. N.J.S.A. 52:17B-2, -6. The State Police Lab -
"notwithstanding [its] close cooperation with the
prosecution - is not within the prosecutor's
'possession, custody or control.'" See
Kane, 449 N.J. Super, at 133 (citations omitted). Thus,
the trial court's ruling was "based upon a
'mistaken understanding of the applicable law, '
requiring reversal" of its exclusion decision.
Tier, 228 N.J. at 5 65 (citation omitted).
is no evidence the BCPO even knew of let alone controlled
Bless's DNA report until it was emailed to the BCPO on
November 16. The BCPO provided it to defendant that same day.
Thus, the BCPO promptly complied with its "continuing
duty to provide discovery pursuant to this rule."
R. 3:13-3 (f). As our Supreme Court recently noted,
if proceedings occur "before lab tests are completed,
the results, as well as other relevant items that later come
into the State's possession, will be disclosed as part of
the State's continuing discovery obligation."
State in Interest of N.H., 226 N.J. 242, 257 (2016)
(citing R. 3:13-3(f)). Thus, the BCPO did not commit
a discovery violation.
State v. Robinson, 229 N.J. 44 (2017), our Supreme
Court analyzed the different discovery rule for pretrial
detention hearings, which provided "the prosecutor shall
provide the defendant with all statements or reports in its
possession relating to the pretrial detention
application." Id. at 60-61 (quoting R.
3:4-2 (c) (1) (B) (eff. Jan. 1, 2017)). The Court stated:
"Consistent with longstanding practice, statements and
reports encompass reports that are in the possession of the
prosecutor, law enforcement officials, ...