V. DESIR, A/K/A JONATHAN DESIR. CAN WE PLEASE HAVE APPEARANCES OF COUNSEL.
STEVEN A. YOMTOV: STEVEN YOMTOV, DEPUTY ATTORNEY GENERAL FOR THE STATE OF
NEW JERSEY. PATRICK F. GALDIERI, II: GOOD MORNING, YOUR
HONOR. PATRICK GALD ON BEHALF OF AMCIS. CHIEF JUSTICE RABNER: YOU'RE
MUTED, MS. HUBBARD. ALICIA J. HUBBARD: GOOD MORNING. ALISHA
HUBBARD, ASSISTANT DEPUTY PUBLIC DEFENDER. ELYLA HUERTAS:
GOOD MORNING. ELEASEEE HURT S APPEARING AS A FRIEND OF THE COURT ON BEHALF OF THE
AMERICAN CIVIL LIBERTY YURTSIAN. CHIEF JUSTICE RABNER: GOOD
MORNING ALL COUNSEL. WELCOME. MR. YOMTOV, GO AHEAD. STEVEN A.
YOMTOV: GOOD MORNING. MAYBE I REQUEST TWO MINUTES FOR REBUTTAL.
CHIEF JUSTICE RABNER: YES. STEVEN A. YOMTOV: THANK YOU.
I WOULD LIKE TO DRAW THE COURT'S ATTENTION TO THE STATE'S REPLY BRIEF TO THE
ACL U'S AMICUS BRIEF BECAUSE I THINK IT BEST SUMS UP WHY DISCOVERY UNDER RULE
3:13-3 IS IN APPLICABLE TO THE FRANKS CONTEXT. THE APPELLATE DIVISION BELOW
DEFENDANT THE ACL U ALL CONFLATE THE STATE'S GENERAL DISCOVERY OBLIGATIONS UNDER
COURT RULE P13-3 IN CONNECTION WITH THE SIXTH AMENDMENT RIGHT TO A FAIR
TRIAL WITH THE STATE'S DISCOVERY OBLIGATIONS CHALLENGING WARRANT-BASED
SEARCHES WHICH IS GOVERNED BY FRANKS. THERE IS NO DISPUTE THAT A TRIAL IS A
SEARCH FOR THE TRUTH AND, THEREFORE, DEMANDS A BROAD RIGHT TO DISCOVERY. BROAD
DISCOVERY RULES EXIST TO ENSURE FAIR AND JUST TRIALS AND MORE SPECIFICALLY TO
ENSURE THAT DEFENDANTS HAVE THP ABILITY TO DEFEND THEMSELVES AGAINST THE
CHARGES HE OR SHE WILL FACE AT TRIAL. BUT INTITE LTMENT TO A FRANKS HEARING IS A
MUCH MORE LIMIT UNDERQUIRY. THE ONLY ISSUE IS WHETHER THE AFFIANT MADE
A FALSE STATEMENT INTENTIONALLY OR WITH WRECKLESS DISREGARD FOR THE TRUTH WHAVS
MATERIAL FOR PROBABLE CAUSE FOR A SEARCH WARRANT. THAT'S IT. UNDER FRANK
S, WHICH THIS COURT FULLY ENDORSED IN HOWERY ONLY THEP AFFIANT'S VORACITY CAN BE
CHALLENGED, NOT THE VORACITY OF THE UNDERLINING SOURCE OF THE INFORMATION
SUCH AS A CONFIDENTIAL INFORMANT. SECONDLY, UNDER FRANKS, THE SEARCH WARRANT AFFIDAVIT
AND THIS IS REALLY IMPORTANT IS ENTITLED TO A PRESUMPTION OF VALIDITY. BOTH
THE U.S. SUPREME COURT AND THIS COURT INTENDED THAT DEFENDANTS HAVE A HIGH BIRD
TOON ENTITLE THEM FIRST TO A FRANKS HEARING BASED ON THE SUBSTANTIAL PRELIMINARY
SHOWING OF A MATERIAL FALSE STATEMENT TO PROBABLE CAUSE AND THEN PROVE BY
A PREPONDERANCE OF THE EVIDENCE AT THE FRANKS HEARING THAT THE ALLEGED FALSE
STATEMENT MADE BY THE AFFIANT WAS NECESSARY TO A FINDING OF PROBABLE CAUSE.
BECAUSE TRIALS IN FRANKS HEARING ARE MARKEDLY DEFENDANT IN BOTH THEIR PURPOSE AND
SCOPE, DISCOVERY RULES GOVERNING EACH PROCEEDING MUST REFLECT THOSE
DIFFERENCES. NAMELY, DISCOVERY SHOULD BE PROPORTIONATE TO WHAT IS ACTUALLY
RELEVANT AT EACH RESPECTIVE PROCEEDING. BUT IF PROSECUTORS MUST COMPLY WITH GENERAL
DISCOVERY RULES SUCH AS THOSE MANDATED BY THE DESIR PANEL, WHICH ARE INTENDED
TO ENSURE A DEFENDANT'S RIGHT TO A FAIR TRIAL, TO VORACITY CHALLENGES TO AFFIDAVITS
SUPPORTING SWARNTS, THIS WILL NO DOUBT LEAD TO A SUBSTANTIAL AND
UNJUSTIFIABLE RISK THAT THE IDENTITIES OF CIS WILL BE UNNECESSARILY DISCLOSED SUCH
AS HERE WITH A CI WAS NOT EVEN A PARTICIPANT IN THE CRIMES FOR WHICH
SHE WAS CHARGED. AND IF DOCUMENTS REVEALING CIS IDENTITIES ARE ROUTINELY DISCLOSED,
IT WILL NOT ONLY PUT CIS AT RIVENG FOR PHYSICAL HARM, BIT WILL HAVE A
CHILLING EFFECT ON OTHER POTENTIAL CROPERATES WHO WILL NO LONGER TRUST LAW ENFORCEMENT.
AND AS A RESULT, LAW ENFORCEMENT WILL LOSE AN IMPORTANT TOOL IN FIGHTING CRIME.
THEREFORE, THIS COURT SHOULD REJECT THE APPELLATE DIVISION'S HOLDING WHICH PERMITS
GENERAL DISCOVERY UNDER RULE 3:13-3 TO DEFENDANT'S CHALD CHG WARRANT-BASED
SEARCHES AND REAFFIRM THE FRANKS HEARING IN ITS ENTIRETY. I COMPLETED MY OPENING
REMARKS. CHIEF JUSTICE RABNER: MR. YOMTOV, I HOPE YOU CAN
HELP US UNDERSTAND THE SCOPE OF YOUR POSITION ON THE DISCOVERY RULE.
TAKE A WIRETAP CASE. A WAP AFFIDAVIT, FOR EXAMPLE, THAT INCLUDES A DESCRIPTION
OF A CONTROLLED BUY AS WELL AS PRIOR COURT ORDERS. IS THE
LAB REPORT, ARE THE COURT ORDZ SUBJECT TO DISCLOSURE AS YOU UNDERSTAND THE DISCOVERY
RULE? STEVEN A. YOMTOV: I THINK THE SAME, THE SAME
RULES WOULD APPLY BECAUSE, YOU KNOW, WLITS RR A WIRETAP AFFIDAVIT OR A REGULAR
SEARCH WARRANT AFFIDAVIT DEFENDANT STILL HAS TO PROVIDE, SATISFY THE SUBSTANTIAL
PRELIMINARY STANDARD IN ORDER TO GET A FRANKS HEARING. CHIEF
JUSTICE RABNER: PUT THE FRANKS HEARING CONCERN TO ONE SIDE. I WANT TO UNDERSTAND
-- STEVEN A. YOMTOV: OKAY. CHIEF JUSTICE RABNER:
HOW YOU INTERPRET THE MEANING OF THE DISCOVERY RULE. IN A
WIRETAP CASE, ARE THOSE DOCUMENTS, THE UNDERLYING LAB REPORT RELATING TO THE
CONTROLLED BUY BEING DISCLOSED? STEVEN A. YOMTOV: WELL, IT
DEPENDS. IT DEPENDS ON IF THE DEFENDANT IS CHARGED WITH THE CRIMES THAT THE
WIRETAP AFFIDAVIT IS SEEKING TO -- THAT IT'S INVESTIGATING. IN THAT CASE UNDER
GENERAL DISCOVERY RULES, YES, THE DEFENDANT WOULD BE ENTITLED TO THOSE
DOCUMENTS. CHIEF JUSTICE RABNER: AND IF NOT, ARE THE -- IS THE
LAB REPORT TODAY AND IN RECENT PRACTICE BEING DISCLOSED? STEVEN A.
YOMTOV: I'M SORRY. IN WIRETAP CASES OR IN GENERAL IN THESE --
(SIMULTANEOUS CROSSTALK) CHIEF JUSTICE RABNER: I WANT TO FOCUS ON
AM P WRAISCAAND PUT THE FRANKS CHALLENGE FOR ONE SIDE FOR A MOMENT.
STEVEN A. YOMTOV: ARE LAB REPORTS. (SIMULTANEOUS CROSSTALK) IN WIRETAP
CASES CHIEF JUSTICE RABNER: YES, OF A CONTROLLED BUY.
STEVEN A. YOMTOV: WELL, I CAN'T SPEAK FROM MY OWN KNOWLEDGE, BUT I WOULD
THINK THAT IF THE DEFENDANT IS CHARGED WITH THE CRIMES FOR WHICH ARE OUTLINED
IN A WIRETAP AFFIDAVIT AND IN A WIRETAP ORDER, IF THEY ARE CHARGED WITH THOSE PARTICULAR
CRIMES, THEN YES, THEY WOULD BE ENTITLED TO THE PROVISION IN RULE 3:13-3
FOR REPORTS. CHIEF JUSTICE RABNER: THAT'S THE EASY PART OF THE
QUESTION. THE HARDER PART -- STEVEN A. YOMTOV: ODAY. OKAY.
CHIEF JUSTICE RABNER: IF IT'S NOT CHARGED SEPARATELY, IS THE UNDERLYING
LAB REPORT BEING DISCLOSED? WHAT'S THE CURRENT -- WHAT'S FLAKT S OF THE
STATE, OF THE ATTORNEY GENERAL? STEVEN A. YOMTOV: I CAN'T ANSWER
THAT. I DON'T KNOW THE ANSWER TO THAT QUESTION, BUT AS A MAT S OF, YOU KNOW,
JUST LEGAL INTERPRETATION OF THE COURT RULE, I WOULD THINK THAT IF THEY ARE NOT
BEING CHARGED WITH THOSE CRIMES, THEN THE LAB REPORT WOULD NOT BE TURNED
OVER. AND I THINK THAT WE'RE DEALING HERE IN THIS CASE WITH MORE THAN JUST LAB
REPORTS. WE'RE REALLY DEALING WITH THE APPELLATE DIVISION BASICALLY GIVING AN
AUTOMATIC RIGHT OF GENERAL DISCOVERY FOR WARRANT-BASED SEARCHES.
JUSTICE ALBIN: LET'S STICK WITH THE LAB REPORT FOR A SECOND. YOU STATED
IN THE FRANKS HEARING THAT THE AFFIANT'S VORACITY CAN BE CHALLENGED. CORRECT?
STEVEN A. YOMTOV: YES. JUSTICE ALBIN: IF HE
PURGE RND HIMSELF OR MADE A STATEMENT IN WRECKILOUS DISREGARD OF THE TRUTH.
SO THE AFFIDAVIT STATES THAT THE AFFIANT, DETECTIVE FROM THE
UNION COUNTY PROSECUTOR'S OFFICE, SUBMITTED A DRUG FOR ANALYSIS AT THE UNION
COUNTY POLICE LAB FSHGS CORRECT. STEVEN A. YOMTOV: CORRECT.
JUSTICE ALBIN: PRESUMABLY THE UNION COUNTY PROSECUTOR'S OFFICE
EITHER HAD A COPY OR HAD ACCESS TO A COPY, CORRECT? STEVEN A.
YOMTOV: CORRECT. JUSTICE ALBIN: ASSUME THAT THE DEFENDANT'S
NAME IS NOT ON THE POLICE LAB. AND TYPICALLY -- OR THE INFORMANT'S NAME. OR THAT
IT COULD BE REDACTED, WHAT IS THE ISSUE ABOUT TURNING OVER THE POLICE LAB TO ENSURE
THAT THE AFFIANT WAS TELL TLUTH IN THE AFFIDAVIT THAT HE ACTUALLY SUBMITTED
THE DRUG FOR ANALYSIS? WHAT IS THE PROBLEM THERE? STEVEN
A. YOMTOV: I HAVE TWO ANSWERS TO THAT QUESTION. FIRST, THE
IDENTIFICATION OF A DRUG IS NOT -- A CONFIRMATION THAT A DRUG WAS SOLD IS NOT
NECESSARY TO A FINDING OF PROBABLE CAUSE. WHILE IT IS PERTINENT AND RELEVANT
TO THE CHARGES THAT A DEFENDANT MAY FACE, IN OTHER WORDS, THE STATE HAS TO PROVE
AN ELEMENT OF THE OFFENSE, MEANING THEY HAVE TO IDENTIFY THAT IT WAS CDS THAT
WAS SOLD -- JUSTICE ALBIN: THINK ABOUT THE DEFENDANT'S VORACITY.
I STARTED MY QUESTION BY SAG WHY ISN'T THAT AVAILABLE FOR THE DEFENSE TO DETERMINE
WHETHER OR NOT THE AFFIANT WAS TRUTH. STEVEN A. YOMTOV: OKAY.
JUSTICE ALBIN: THAT'S VERY SIMPLE. STEVEN A.
YOMTOV: THAT GOES MORE TOWARDS THE SECOND PART OF MY ANSWER. AND THAT IS THAT
THE DETAILS THAT ARE INCLUDED IN THE LAB REPORT, NOT ONLY INCLUDES THE
DEFENDANT'S NAME, IT INCLUDES INFORMATION, SUCH AS THE QUANTITY OF DRUGS, THE TYPE
OF DRUG, THE PACKAGING THAT COULD BE ASSOCIATED WITH THE DRUG, STAMPED LOEG
OZ, THE DATE IS VERY CRITICAL. ALL OF THESE CAN TOO, A SAVVY DRUG DEALER, COULD,
YOU KNOW, YOU KNOW, COULD FIGURE OUT WHO THAT CONFIDENTIAL INFORMANT WAS
WHO MADE THE TRANSACTION -- JUSTICE ALBIN: WASN'T THE AFFIDAVIT
-- AND IF YOU HAVE CONCERNS, IF ANY PROSECUTOR HAS CONCERNS THAT SOMETHING
IN THE LAB REPORT MAY VEAL THE IDENTITY OF A CONFIDENTIAL INFORMANT, YOU CAN REQUEST
REDACTION. THAT IS DONE ALL THE TIME. (SIMULTANEOUS
CROSSTALK) STEVEN A. YOMTOV: THAT IS TRUE SHS YOUR HONOR.
JUSTICE ALBIN: GO AHEAD. STEVEN A. YOMTOV:
I'M SORRY. REDACTION AND IN-CAMERA PROCEEDINGS, YES, IT CAN
BE DONE, BUT THE QUESTION IS IS IT REQUIRED UNDER FRANKS. AND THE POINT IS IS THAT
WE'RE NOT DEALING WITH -- IT HAS TO -- FIRST OF ALL, IT HAS TO BE MATERIAL.
IT'S NOT JUST AN ISSUE OF WHETHER THERE'S DAUGS. (SIMULTANEOUS
CROSSTALK) JUSTICE ALBIN: HOW COULD VORACITY NOT BE MATERIAL?
YOU WANT -- THE WHOLE PART OF DISCOVERY IS NOT TO TRUST, BUT TO VERIFY. THE DEFENSE
ISN'T SUPPOSED TO BE JUST TRUST WHAT IT'S TOLD. THEY GET THE DISCOVERY TO
VERIFY THE TRUTHFULNESS, AND THE VERY POINT OF A FRANKS HEARING IS TO DETERMINE
WHETHER -- ONE OF THEM IS TO DETERMINE WHETHER OR NOT THE POLICE OFFICER IS TRUTH
AND YOU'RE DENYING INFORMATION, THE ONLY INFORMATION THE DEFENDANT BY WHICH
THEY COULD TEST HIS TRUTHFULNESSISM GO ON. STEVEN A. YOMTOV:
BUT YOUR HONOR IS WORKING FROM THE ASSUMPTION THAT THE OFFICERS VORACITY SIN
QUESTION. THERE IS A PRESUMPTION OF VALIDITY WITH RESPECT TO THE SEARCH WARRANT
AFFIDAVIT, WHICH IS FRANKLY AS WELL AS THE SEARCH WARRANT THAT IS ISSUED. IF
WE'RE GOING TO ALLOW DEFENDANTS TO CHALLENGE THE -- JUSTICE ALBIN:
YOU HAVE TO UNMUTE, JUSTICE LAVECCHIA. JUSTICE LAVECCHIA HAS A QUESTION. YOU HAVE
TO UNMUTE. UNMUTE. JUSTICE LAVECCHIA: NOW I'M UNMUTED.
I APOLOGIZE 92 IT'S OI. JUSTICE LAVECCHIA: MR. YOMTOV,
IN TERMS OF YOUR TOORLALITY POINT, BECAUSE THERE WAS NO FIELD TEST HERE,
THE AFFIANT RELIED ON THE LAB TO DETERMINE THAT THE SUBSTANCE BEING TESTED WAS
MOLLY. SO, WITHOUT THE LAB REPORT, IT'S DIFFICULT TO SEE HOW MR. DESIR'S LAWYER
WOULD BE ABLE TO DISSUEDE HIS SUSPICION THAT THE WARRANT CONTAINED A KNOWING
FALSEHOOD TO ENTITLE HIM TO A FRANKS HEARING. SO IT SEEMS TO ME WE HAVE THE
COLONELS OF MATERIALITY THAT YOU'RE EMPHASIZING HERE WITH RESPECT TO THE
FACTS OF THIS CASE. DO WE NOT? AND WHEN YOU COUPLE THAT WITH THE OFFER TO ACCEPT
REDACTION THROUGH NEGOTIATE -- PRESENTATION TO THE COURT, AREN'T THE
STATE'S CONCERNS SATISFIED? STEVEN A. YOMTOV: NO BECAUSE, YOUR HONOR,
THAT, ONCE AGAIN, THIS WORKS ON THE ASSUMPTION THAT THE IDENTIFICATION OF
THE DRUG IS MATERIAL TO A FINDING OF PROBABLE CAUSE. IT'S NOT MATERIAL TO A
FINDING OF PROBABLE CAUSE IN A WARRANTLESS SEARCH. AN OFFICER CAN SEE A
HAND TO HAND AND BASED ON THEIR TRAINING AND EXPERIENCE AND OTHER CIRCUMSTANCES
CAN -- THERE'S PROBABLE CAUSE RIGHT THERE. SO WHAT'S HAPPENING HERE IS WE'RE
ALMOST ELEVATING THE PROBABLE CAUSE STANDARD FOR WARRANT-BASED SEARCHES OVER THAS
WHAT IS REQUIRED FOR WARRANTLESS-BASED SEARCHES -- SWAUK.
JUSTICE LAVECCHIA: BUT WE ARE AT LEAST GROUNDED IN WHAT THE DETECTIVE OR OFFICER
CHOSE TO PLACE IN THE AFFIDAVIT THAT WAS PRESENTED TO THE COURT FOR THE
WARRANT, SO WE ARE STILL ROOTED IN THE FACTS THAT THE STATE'S REPRESENTATIVE CHOSE
TO PLACE BEFORE THE COURT. AND THOSE FACTS ARE SUBJECTED TO BEING TESTED IN THE
FRANKS HEARING IF THERE'S ENOUGH REASON TOOP GENERATE A HERE HEARING.
CORRECT. STEVEN A. YOMTOV: WELL, YES. SUPPOSE THAT IT CAME
BACK AND IT WASN'T DRUGS, IT WAS FLOUR, AND THAT BROUGHT A FINDING OF PROBABLE
CAUSE JUST BECAUSE IT COMES BACK THAT IT'S NOT THE DRUG THAT WE THOUGHT IT WAS.
OF COURSE, THAT WOULD BE SUGGEST TO A DIFFERENT PROSECUTION, A DIFFERENT CHARGE
-- DWAUK. JUSTICE ALBIN: IT WOULD MOVE TO A FRANKS HEARING
BECAUSE THEN HE WOULD HAVE MADE THE NECESSARY SHOWING THAT THE POLICE OFFICER MAY
NOT HAVE BEEN TELLING THE TRUTH, THAT HE MAY HAVE ACTUALLY BEEN STATING
A FALSEHOOD OR MAKING A STATEMENT IN RECKLESS DISREGARD OF THE TRUTH. AND THAT WOULD
ENTITLE THE DIFFERENT TO THE FRANKS HEARING. AM I CORRECT?
STEVEN A. YOMTOV: NO -- (SIMULTANEOUS CROSSTALK)
JUSTICE ALBIN: IF IT WAS TRUTHFULLY FLOUR AND HE REPRESENTED TO THE COURT THAT
IT WAS MOLLY, ARE YOU SAYING THAT THERE WOULD BE NO ENTITLEMENT TO A FRANKS
HEARING? STEVEN A. YOMTOV: HE WOULD HAVE TO REVEAL -- NO.
HE WOULD HAVE TO VEAL TO THE COURT THAT WHEN IT CAME BACK IT WAS NOT THE DRUG THAT
HE BELIEVED IT WAS. I MEAN, THE JUDGE HAS TO HEAR ALL, YOU KNOW R BASICALLY LIKE
IN A WIRETAP AFFIDAVIT, YOU KNOW, ALL THE INFORMATION THAT GOES TOWARDS THE PROBABLE
CAUSE, INCLUDING, YOU KNOW, EXCULPATORY INFORMATION. SO, YEAH, BUT THAT
DOESN'T NECESSARILY MEAN THAT THE OFFICER WAS LYING IN THE AFFIDAVIT.
(SIMULTANEOUS CROSSTALK) JUSTICE ALBIN: NO ONE IS SUGGESTING
THAT. YOU HAVE A HEARING. IF HE REPRESENTED TO THE COURT
THAT THE LAB REPORT SAID MOLLY AND THEN WHEN DISCOVERY WAS GIVEN TO THE DEFENDANT,
THE LAB REPORT SAID IT WAS FLOUR, THAT WOULD PROBABLY TRIGGER A FRANKS
HEARING, CORRECT? STEVEN A. YOMTOV: AGAIN, THAT GOES TOWARDS WLP
IT WAS MATERIAL TO A FINDING OF PROBABLE CAUSE WHETHER THE DRUG, IN FACT, WAS A
DRUG OR NOT IS NOT MATERIAL TO A FINDING OF PROBABLE CAUSE. THINK OF IT LIKE
IT'S KIND OF -- IT'S ALMOST LIKE PCR IN THAT YOUR DREERLING WITH, IN PCR CONTEXT
YOU'RE DEALING WITH ATTORNEY ERROR VERSUS FREJS AND AS THIS CLOURT RECOGNIZES
YOU CAN DEAL WITH THE PREJUDICE PRONG BEFORE YOU GET TO THE ERROR PRONG. SO LIKE
WISE, THE SAME APPROACH CAN BE DONE, THAT WE CAN LOOK AT THE MATERIALITY
PRONG, SO TO SPEAK, AND WHO CARES ABOUT WHETHER THERE WAS SOME SORT OF -- I DON'T
WANT TO SAY FALSEHOOD, BUT SOME SORT OF -- AND THERE IS NO FALSEHOOD IN THIS
PARTICULAR CASE. HE SAID THEY WERE INVESTIGATING, I BELIEVE IT WAS COCAINE OR
HEROIN -- I'M SORRY. MOLLY. IT WAS MOLLY. AND IT CAME BACK AS FLOUR.
SO WHERE IS THE FALSEHOOD? I DON'T CAN -- JUSTICE LAVECCHIA: MR. YOMTOV,
WHY IS THE STATE SO CONCERNED ABOUT OPENING THE DOOR TO REASONABLE AND
LIMITED DISCOVERY AT THIS STAGE? I'M HARD PRESSED TO UNDERSTAND THE VERY HARD LINE
THAT THE STATE IS DRAWING IN THIS CASE WHEN THERE IS I THINK A REASONABLE
RESPONSE COMING FROM YOUR ADVERSARY THAT, YOU KNOW, THE COURT CAN AND WILL RESOLVE
REDACTION CONCERNS THAT THE STATE MAY HAVE THAT PUT CONFIDENTIAL INFORMANTS AT
RISK. STEVEN A. YOMTOV: WELL, I DON'T WANT THE COURT TO THINK
THAT THE ATTORNEY GENERAL OF THE STATE IS TAKING A HARD LINE POSITION. WE'RE TAKE
AGPRACTICAL POSITION THAT IF YOU LOOK AT, LIKE, THOSE CASES THAT I CITED
IN THE STATE'S SUPPLEMENTAL BRIEF WHERE COURTS HAVE CREATED THIS EITHER SOME SORT
OF REASONABLE DOUBT STANDARD AND, YOU KNOW, THEY HAVE THESE FRANKS-TYPES
HEARINGS. AT THE END OF THE DAY IT'S REALLY GOING TO END UP BEING THE SAME SORT
OF PROOF, THAT IT WOULD -- YOU STILL NEED SOME SORT OF AFFIDAVIT COMING FROM, IN
THIS CASE WE DON'T EVEVEN AN AFFIDAVIT FROM THE DEFENDANT. THE DEFENDANT
FALLS INTO THAT CATEGORY OF JUST A CONCLUSERY BEAR-BONES REQUEST FROM IN THIS
CASE COUNSEL. WE WOULD NEED SOME SORT OF AFFIDAVIT THATS GIVES SOME CAUSE
TO BELIEVE THAT THERE IS MAYBE THERE'S SOMETHING THAT IS WRONG HERE. AND I'M NOT
SAYING THAT THE REASONABLE DOUBT STANDARD IS APPLICABLE, BUS I THINK IN
PRACTICE, BECAUSE I THINK WHEN YOU HAVE TOO MANY LAYERS OF STANDARDS OF BURDEN
OF PROOF IT GETS CONFUSING. THAT -- CHIEF JUSTICE RABNER:
WHAT'S WRONG. (SIMULTANEOUS CROSSTALK)
STEVEN A. YOMTOV: I'M WRR SOREAX YOUR HONOR. CHIEF JUSTICE
RABNER: GO AHEAD. KEEP GOING. STEVEN A. YOMTOV: THE FRANK
S STANDARD HAS WORKED FOR OVER 40 YEARS. IT'S ONLY SINCE THIS CASE DESIR
CAME ABOUT THAT THE APPELLATE DIVISION BASICALLY SAID ALL RIGHT, YOU GET ALL DISCOVERY
LIKE YOU WOULD GET FOR PURNSS OF A TRIAL. THERE IS NO EVIDENCE THAT HAS BEEN
PRESENTED THAT THERE IS SOME SORT OF SYSTEMIC PROBLEM OF POLICE LYING IN FALSE
AFFIDAVITS. SO TO CHANGE THE RULES OF THE GAME WHEN THE CHANGE WOULD REALLY
BE SEMANTICS, IT REALLY DOESN'T MAKE ANY SENSE. YEELY TRULY BELIEVE THAT --
(SIMULTANEOUS CROSSTALK) CHIEF JUSTICE RABNER: MAY I?
SO WE HAVE TWO QUESTIONS IN FRONT OF THE COURT. ONE, WHAT IS
THE APPROPRIATE STANDARD, WHAT SHOULD THE THE RULES OF THE GAME BE? TWO NUMBER,
HAS DEFENDANT SATISFIED WHATEVER BURDEN THE DEFENDANT HAS? LET'S FOCUS
ON THE FIRST QUESTION AND PUT ASIDE THE PARTICULARS OF THIS CASE.
WHAT'S WRONG WITH THE CALIFORNIA STANDARD THAT YOU'VE ALLUDED TO IN YOUR COMMENTS?
STEVEN A. YOMTOV: LIKE I SAID, IT'S -- PERSONALLY Y READ
THAT OPINION SXP MY HEAD STARTED TO SPIN. I'M BEING TOTALLY CANDID WITH THE COURT.
I SAID THIS IS JUST SOUNDS LIKE A FRANKS HEARING WHEN YOU START SAYING,
OKAY, DEFENDANT, YOU NEED TO -- IT CAN'T BE CONCLUSELY, YOU HAVE TO SUBMIT OFFERS
OF PROOF SUCH AS AFFIDAVITS, ESTABLISHING WHY YOU BELIEVE THAT THE OFFICER
WAS LYING. AND YOU GOT TO SPECIFY WHAT PART OF THE AFFIDAVIT IS THE LIE. YOU KNOW,
AND THEN GETTING TO THE PART OF THE, YOU KNOW, GETTING A FRANKS-TYPE HEARING.
WHAT IS THAT? TO ME IT SOUNDS LIKE WHATEVER SATISFIES THIS CALIFORNIA STANDARD,
IT ULTIMATELY IS GOING TO SATISFY -- JUSTICE ALBIN: WHY NOT
OUR STANDARD? WE HAVE THE MOST OPEN -- WE MRAEBL HAVE THE MOSTOPE00 DISCOVERY
RULES IN THE COUNTRY. OPEN, OPEN BOOK. HE MADE -- THE DEFENDANT MADE A REQUEST
FOR THE LAB REPORT. DO WHATEVER REDACTIONS YOU WANT. THE DEFENDANT WANTS TO
DETERMINE WHETHER OR NOT MOLLY ACTUALLY WAS SUBMITTED AND MOLLY WAS THE ANALYSIS.
I'M TRYING TO FIGURE OUT WHAT IS THE BIG DEAL. YOU HAVE THE REPORT IN YOUR FILE.
MAKE WHATEVER REDACTIONS YOU WANT. TURN THEM OVER. THERE WAS A SPECIFIC
REQUEST FOR IT. IT'S VENLT TO THE FRANKS HEARING. I'M LIKE JUSTICE LAVECCHIA.
I'M HAVING DIFFICULTY UNDERSTANDING WHY YOU'RE FIGHTING SO HARD OVER THIS.
STEVEN A. YOMTOV: BECAUSE IT'S NOT JUST THE LAB REPORT. HE
ALSO WANTS THOSE CONSENUAL TRANSCRIPTS. HE WANTS THE POLICE REPORTS. NOW, DEFENDANT
-- NOT DEFENDANT. I'M SORRY. COOPERATEERS AND CONFIDENTIAL
INFORMANTS, WHEN THEY GET WIND THAT WE'RE TURNING OVER DOCUMENTS PERTAINING TO THE
INFORMATION THAT THEY ARE PROVIDING, NOW, GRANTED, YES, THINGS CAN BE REDACTED,
BUT, BUT AT SOME POINT THERE IS GOING TO BE A MISTAKE, THERE IS GOING TO BE
-- YOU HAVE A SAVVY DEALER WHERE THEY KNOW WHAT'S, YOU KNOW, WHO THEY DEALT WITH
-- FOR INSTANCE, TAKE THE ISSUE OF -- JUSTICE ALBIN: THE
DEFENDANT GOT THE AFFIDAVIT, MR. YOMTOV. THE DEFENDANT GOT THE AVT. THE AVD
SAYS THERE WAS AN UNFORTUNATE ACTION 22 THE DEFENDANT AND A CONFIDENTIAL INFORMANT.
THAT'S FOE SECRET. THE DEFENDANT KNOWS THAT. STEVEN A. YOMTOV:
CORRECT, BUT HE WANTS TO KNOW FOR INSTANCE.
(SIMULTANEOUS CROSSTALK) JUSTICE ALBIN: ASSUMING NO TRANSCRIPT GOES
OVER OR JUST THE FACT THAT THERE WAS A RECORDING, NOTHING MORE THAN THAT,
WHAT IS THE PROBLEM? ASSUMING ALL PERTINENT REDACTIONS.
STEVEN A. YOMTOV: THE PROBLEM IS WHEN YOU HAVE A RECORDING, WHAT ARE YOU GOING
TO DO? REDACT HAFT A CONVERSATION? AND EVEN IF YOU REDACT HALF A
CONVERSATION, THEY ARE VERY UNIQUE. YOU CAN TELL WHO YOU'RE TALKING TO ON THE OTHER
LINE. NOW, IN THIS CASE DEFENDANT IS ALSO POINTING OUT, YOU KNOW, THERE WAS NO
PHONE NUMBER IN THIS CASE. WELL, THE REASON THERE IS NO PHONE NUMBER IS
PROBABLY BECAUSE DEALERS, AS WE ALL KNOW USE PIRNER PHONES, THEY USE NUMEROUS PHONES
AND IT'S USUALLY TIED TO A PARTICULAR SET OF TIME, THEY FLIP THEM, THIGET
RID OF THEM AFTER ABOUT A WEEK AND THEN THEY MOVE ON TO ANOTHER ONE. THEY COULD
EASILY TRY TO, YOU KNOW, ISOLATE THAT PARTICULAR PHONE TO THAT PARTICULAR
DAY TO THAT FAMILIAR INFORMANT THACHLTS RR THE RISK. IT'S NOT SO MUCH ABOUT THE
LAB REPORT. IT'S THE FACT THAT THE APPELLATE DIVISION (ZOOM AUDIO GLITCH)
BROOM-SMITH SAID YOU'RE AUTOMATICALLY ENTITLED TO ALL OF THIS DISCOVERY. THAT'S
A PROBLEM. CHIEF JUSTICE RABNER: IS THERE A DISTINCTION TO BE
DRAWN BETWEEN A LAB REPORT AND A POLICE REPORT FOR THE TRANSCRIPT OF A CALL?
STEVEN A. YOMTOV: I THINK WHAT HAPPENS WITH THE LAB REPORT
IS, YOU KNOW, THE LAB REPORT IS PROBABLY THE MOST -- WHAT I WOULD CALL THE MOST
INNOCUOUS BECAUSE IT WILL HAVE THE LEAST AMOUNT OF DETAILS IN IT, BUT AT SOME
POINT IF YOU TAKE OUT CERTAIN THINGS, YOU KNOW, IT'S GOING TO BE MEANINGLESS.
AND LIKE I SAID, THE -- YOU GOT TO REMEMBER THAT THE MATERIALITY ISSUE IS STILL
THERE. THAT THE IDENTIFICATION OF A DRUG IS NOT CRITICAL TO ESTABLISHING
PROBABLE CAUSE. AND THAT'S TRUE IN THE WARRANTLESS. SO BASICALLY WE WOULD BE
ELEVATING PROBABLE CAUSE OR WARRANT-BASED PURPOSES OVER AND ABOVE WHAT IS
REQUIRED FOR WARRANTLESS. (SIMULTANEOUS CROSSTALK)
JUSTICE SOLOMON: I TAKE IT, MR. YOMTOV, THAT YOU'RE SIMPLY SAYING, YOUR ARGUMENT
SEEMS TO BE THAT FOR THE PURPOSES OF A FRANKS HEARING ONLY, NOT 3:13-3,
NOT ANY OTHER ISSUE, IT REQUIRES MORE THAN THE SIMPLE BOLD ASSERTION OF A DEFENDANT
AS IT DID IN THIS CASE, THAT, NO, NO, NO, IT WASN'T MOLLY --
STEVEN A. YOMTOV: CORRECT. JUSTICE SOLOMON: THAT DOES NOT ENTITLE
YOU TO A FRANKS HEARING. STEVEN A. YOMTOV: CORRECT.
JUSTICE SOLOMON: WHERE THE OTHER SEEMS TO SAY IT DOES. STEVEN
A. YOMTOV: CORRECT. JUSTICE SOLOMON: OKAY.
(SIMULTANEOUS CROSSTALK) CHIEF JUSTICE RABNER: WHAT ABOUT A
DIFFERENT CASE WHERE THE DEFENDANT CAN COME FORWARD WITH SOME KIND OF A SHOWING
BEYOND WHAT'S HAPPENED HERE, THERE ARE OTHER PACKAGES THAT LOOK IDENTICAL THAT ARE
FOUND IN THE APARTMENT THAT ALL CONTAIN FLOUR AND HE SAYS LOOK, I WAS RAY
TRYING TO SCAM THEM, BUT I'M NO DRUG DEALER AND THE AFT HERE IN SUPPORT OF
APSEARCH FOR DRUG-RELATED ACTIVITY IS WRONG. YOU HAVE AN ASSERTION IN THE
AFFIDAVIT THAT THE LAB TESTED IT AND THAT IT WAS A CONTROLLED DANGEROUS SUBSTANCE.
DO THEY GET THE LAB REPORT UNDER THAT CASE IF YOU ACTUALLY HAVE A LAB REPORT
THAT SHOWS IT WAS FLOUR? STEVEN A. YOMTOV: ALL RIGHT. THERE'S
TWO LAB REPORTS? STEVEN A. YOMTOV: CHIEF
JUSTICE RABNER: NO. THERE'S ONE LAB REPORT AND IT'S FALSE. THE INFORMATION IN THE
AFFIDAVIT IS FALSE DOES IT GET TURNED OVER? STEVEN A. YOMTOV:
OKAY. UH-HUM. I MEAN, IF THE INFORMATION IS FALSE IN THE
AFFIDAVIT, YOU KNOW, IT GOES THEN THEN THAT GOES TO THE ISSUE OF WHETHER IT'S A
MATERIAL FALSEHOOD OR NOT. I WOULD THINK SO BECAUSE THERE YOU'RE TALKING ABOUT
WHAT IS ACTUALLY CONTAINED IN THE AFFIDAVIT. NOW, GRANLTED IT HAS TO
ALWAYS BE WHAT THE AFFIANT BELIEVES TO BE TRUE -- (SIMULTANEOUS CROSSTALK)
BELIEVES TO BE TRUE -- I'M VOREA CHIEF
JUSTICE RABNER: SO WE'RE NOT GOING TO KNOW WHAT THE LAB REPORT SAYS BECAUSE RIRTS
FA BEEN DISCLOSED. THE DEFENDANT COMES FORWARD AND SAY EVERYTHING IN THAT
APARTMENT WAS FLOUR THAT DAY AND COMES FORWARD A THRESHOLD SHOW AGFALSE ATTEMPT
WHAT'S THE STATE'S POSITION IN CASES LIKE THAT WHERE SHOWING HAS BEEN MADE
ABOUT DISCLOSURE OF THE LAB REPORT? STEVEN A. YOMTOV: I WOULD THINK
THAT IF HE CAN ESTABLISH SOME DEGREE OF FALSITY IN AN AFFIDAVIT, THEN HE WOULD
BE ENTITLED TO THAT -- THE DISCOVERY. JUSTICE ALBIN: SO --
STEVEN A. YOMTOV: IT HAS TO BE WHAT THE AFFIANT BELIEVES -- IF IT'S WHAT THE
AFFIANT BELIEVES TO BE TRUE, THE FOCUS HAS TO BE ON THE AFFIANT'S BELIEF OF
TRUTHNESS, NOT ON WHAT THE INFER -- THE UNDERLYING SOURCE OF THAT INFORMATION.
AND THAT'S BASIC WARRANT-BASED LAW. WU DON'T LOOK AT THE -- THAT'S THE
MAGISTRATE'S RULE. THE MAGISTRATE'S ROLE IS TO LOOK FOR TWO THINGSISM YOU KNOW,F
OCOURSE THE TOLTY TAVT OCIRCUMSTANCES, BUT THE RELIABILITY OF THE INFORM SXNT
THE BASIS OF KNOWLEDGE, WHAUZ THE SOURCE OF THE KNOWLEDGE. THOSE ARE THE
TWO THINGS THAT -- AND ONCE YOU HAVE A RELIABLE CI, IF THERE IS NO EVIDENCE ON
THE PART OF THE OFFICER, YOU KNOW, LYING OR ANYTHING LIKE THAT, THEN IT'S
BASED ON HIS OR HER REASONABLE BELIEVE THAT THE INFORMATION THAT WAS IMPART TODAY
HIM OR HER WAS, INDEED, ACCURATE AND TRUE. JUSTICE ALBIN:
MR. YOMTOV, OUR RULES OF DISCOVERY DO NOT REQUIRE ANY SHOWING BY THE DEFENDANT.
THE THEY ONLY REQUIRE A REQUEST. YOU HAVE OO MAKE A SHOWING, OBVIOUSLY,
FOR AN ENTITLEMENT TO A FRANKS HEARING, BUT ANOTHER AREA OF OUR DISCOVERY RULES,
IS THERE ANY REQUIREMENT THAT THERE BE A SHOWING AND ONE OF THE REASONS
IS THAT THE DEFENDANT IS PRESUMED TO BE INNOCENT BEYOND A REASONABLE DOUBT AND
HE IS ENTITLED TO THE STATE'S DISCOVERY, TO CHALLENGE THE STATE'S PROOFS.
AM I MISSTEAKEN ABOUT THIS? STEVEN A. YOMTOV: WELL, IT IS
TRUE THAT THE RULE 3:13-3 DOESN'T PLACE ANY BURDEN ON THE DEFENDANT THAT
IT HAS TO BE -- POSTINDICTMENT, THE STATE IS OBLIGATED TO TURN OVER ALL RELEVANT
EVIDENCE OR INFORMATION THAT WILL LEAD TO RELEVANT EVIDENCE, BUT THAT'S
THE POINT IS THAT WE'RE NOT DEALING HERE WITH RELEVANT EVIDENCE. WE'RE DEALING
WITH A LIMITED ISSUE IS, AN EXCEPTION IF YOU WANT TO CALL IT, TO THE GENERAL,
GENERAL DISCOVERY OBLIGATION ON THE PART OF THE STATE. JUSTICE
PATTERSON: YOUR ARGUMENT, AS I UNDERSTAND IT, IS IS THAT TRANSACTION WITH THE CI,
WHILE CERTAINLY RELEVANT TO THE FRANKS HEARING BECAUSE OF THE APPEARANCE
OF THAT TRANSACTION IN THE AFFIDAVIT IS NOT A CHARGED -- IS NOT A BASIS FOR ANY
OF THE CHARGES AGAINST DEFENDANT. SO IF THIS WERE PURELY A DISCOVERY REQUEST
UNDER THE COURT RULE, IT'S THE STATE'S POSITION THAT IT IS NOT RELEVANT TO
THE CHARGED OFFENSES AND, THEREFORE, WOULD THOUGHT BE PART OF THAT DISCOVERY.
STEVEN A. YOMTOV: EXACTLY. AND IF I COULD DRAW ON ANOTHER
ANALGY, THIS IS VERY MUCH AKIN, WHICH HASN'T COME UP, WHICH IS THE DISCLOSURE OF
A CI'S IDENTITY. THIS COURT HAS MADE CLEAR, STILL GOOD LAW, BURRINATE,
STATE VERSUS BURRINATE, WHICH IS ADOPTED, A WINE TRAUB OPINION THAT WAS ADOPTED BY THE
U.S. FEEM FRAURT IN CASE CITED WHICH SAYS YOU'RE NOT ENTITLED DISCLOSE THE
CI'S IDENTITY UNLESS. (SIMULTANEOUS CROSSTALK)
JUSTICE ALBIN: MR. YOMTOV, WOOENZ THACHLT WEAVE AN EVIDENCE RULE THAT SAYS THERE
SHOULDN'T BE DISCLOSURE OF A CI. BUT ARE YOU SUGGESTING THAT THE
DEFENDANT DOES NOT HAVE NAN TITLEMENT TO DISCOVERY ON PRETRIAL MOTIONS,
ON MOTIONS TO SUPPRESS, MOTIONS FOR IDENTIFICATION, AND ALL SORTS OF OTHER MOTION
S? ARE YOU SUGGESTING THAT OUR RULES OF DISCOVERY DO NOT APPLY TO THOSE
CLASS OF MOTIONS? STEVEN A. YOMTOV: NOT AT ALL. I THINK THAT
FRANKS IS A VERY, VERY UNIQUE AREA OF SEARCH AND SEIZURE LAW AS THIS COURT
IS IS VERY MUCH AWARE IN PUTILLO THIS COURT DIDN'T EVEN RECOGNIZE VORACITY
CHALLENGES AND WAS NOT UNTIL FRANKS THAT THE COURT ELUMEINATED THE ABLUTE BAND
OF THESE IMPEACHMENT CHACHLGS. NO, WE'RE SAYING THAT THIS IS JUST LIMITED TO THE
FRANKS CONTEXT. JUSTICE ALBIN: I HAVE ONE LAST QUESTION. IT
DOESN'T PERTAIN TO THIS. IT PERTAINS TO THE REMEDY HERE. YOU DON'T SEEM TO HAVE
CHALLENGED THE REMEDY. ASSUME JUST FOR THE SAKE OF THIS QUESTION
THAT THE STATE ISN'T ENTITLED TO SOME RELIEF. THE APPELLATE DIVISION SENT
THIS BACK TO ALLOW DHFT TO WP PDRAW HIS PLEA. MY QUESTION TO YOU IS: WHY SHOULD
THE DEFENDANT BE PERMITTED TO WP PADRAW HIS PLEA IF THE ONLY QUESTION IS
WHETHER OR NOT DISCOVERY SHOULD HAVE BEEN DISCLOSED AND IF THE DISCOVERY WAS RELEVANT,
WHETHER OR NOT THERE WAS AN ENTITLEMENT TO A FRANKS HEARING?
I'M SURPRISE THD STATE HASN'T SAID ANYTHING ABOUT IT, I'M GIVE YOG ATHE OPPORTUNITY NOW
TO SPEAK TO THE TISSUE. STEVEN A. YOMTOV: I VAGUELY RECALL
THE ISSUE OF DEFENDANT SEEKING RELEASE FOR COVID-19 REASONS THAT JUDGE --
I FORGET WHICH JUDGE, I BELIEVE TFS JUDGE FUENTES WHO REMANDED THE CASE BACK TO
THE TRIAL COURT, AND HE SET UP THIS UNIQUE PARADIGM OF -- THAT THE DEFENDANT
CAN EITHER ACCEPT THE GUILTY PLEA OR THE STATE CAN -- OR MOVE FOR A NEW -- THEY WOULD
MOVE FOR A NEW TRIAL AND THE STATE WOULD HAVE TO PROVIDE THE DISCOVER AECHLT
AGAIN, THESE RISHUES THATS THAT WERE SORT OF REARING THEIR HEADS --
JUSTICE ALBIN: LET ME JUST CUT THROUGH T. DOES THE STATE THINK THAT
THIS IS AN APPROPRIATE REMEDY? STEVEN A. YOMTOV: NO, NOT
AT ALL. JUSTICE ALBIN: OKAY. STEVEN A. YOMTOV:
NOT AT ALL. JUSTICE ALBIN: OKAY. CHIEF JUSTICE
RABNER: IS THERE ANYTHING ELSE YOU WOULD LIKE TO ADD, MR. YOMTOV?
STEVEN A. YOMTOV: NOTHING AT THIS TIME, YOUR HONOR. THANK YOU.
CHIEF JUSTICE RABNER: THANK YOU. MRG. PATRICK F.
GALDIERI, II: I WOULD LIKE TO START BY SAYING APPELLATE DIVISION HERE
INAPPROPRIATELY DEFENDANTS DISCOVERY WITHOUT REQUIRING THAT THEY MAKE A
SUBSTANTIAL PRELIMINARY SHOWING UNDER FRANKS. AND SO THE SET FORTH IN THE SUPPLEMENTAL
BRIEF AND THEN ARGUES THAT BEFORE THIS COURT. BUT SEE IN
THIS CASE REALLY CENTERS ON THE DANGEROUS PRESSENT SET BY THE APPELLATE DIVISION'S
ERRONEOUS DECISION WHICH BY GRANTING UNDULY BROAD DISCOVERY THE DEFENDANT
SEEKING TO MOUNT FRANKS CHAL KCHG HERE BASED ON NOTHING MORE THAN ONUNSUPPORTED
AND UNSEARCH WARRANT CLAIM OF FAULTY THROUGH COUNSEL ALOUN UNDZ ERISKING
THE LIVES OF FUTURE COOPERATION OF CI SXZ THE CONFIDENTIALLY TAL OF INFORMATION
REGARDINGING UNOLOAN GOING OR UNRELATED INVESTIGATIONS. FOR
REQUIRING A SUBSTANTIAL PRELIMINARY SHOWING OF FALSITY STRIKES THE APPROPRIATE
BALANCE OF RESPECTING THE COMPETING CONCERNS RELATING TO TFT DEFENSE OF
LAW ENFORCEMENT WHICHZ LAID OUT IN THE BRIEF AND IT ALSO IMPORTANTLY PREVENTS THE
DISCOVERY PROCESS FROM BEING USED AS A FISHING EXPEDITION AND SAFE GFDZ THE
INTENSIBLE FUNCTION OF CIS IN THE CRIMINAL JUSTICE SYSTEM. I WOULD JUST
REITERATE THE DISCUSSIONS IN THE BRIEF THAT REDACTION ALONE IS ALL INFISH TO PROTECT
THE INTEREST THAT UNDERLIE THE INFORMANT'S PREF PR LIVEOLOG WHICH ARE RELEVANT
HERE AND THOSE ARE TO PROTECT THE SAFETY OF THE INFORMANT AND TO ENCOURAGE THE
PROCESS OF INFORMING. TO PUT IT IT SIMPLY KROOIKS MACE THEMSELVES AND THEY LIVED
ONE HARM PZ WAS FOR THE BENEFIT OF LAW ENFORCEMENT AND SOCIETY AS A WHOLE AND THE
APPELLATE DIVISION'S ERRONEOUS PUBLISHED DECISION MAKES THE RELIZATION OF
THAT HARM ALL THE MORE LIKELY. AND WITH THAT I WOULD BHEE HAPPY
TO ANSWER ANY QUESTIONS THAT YOUR HONORS MIGHT HAVE. CHIEF
JUSTICE RABNER: THANK YOU. IS THERE ANYTHING YOU WANT TO ADD?
JUSTICE PATTERSON: MAY I ASK ONE QUESTION, CHIEF? CHIEF JUSTICE
RABNER: SURE. JUSTICE PATTERSON: IS THERE -- WHEN YOU SAY
THAT REDACTION IS OFTEN INADEQUATE, WHY IS THAT? IS THAT BECAUSE COURTS ARETANT
BEING TOO CAUTIOUS WITH REGARD TO WHAT'S BEING REDACTED? IS THAT A FAILURE ON
THE PART OF COUNSEL? WHY IS REDACTION NOT THE SOLUTION IN MOST CASES?
PATRICK F. GALDIERI, II: WELL, IN THE BRIEF REALLY WHAT IT
COMES DOWN TO IS AUTOMATIC OF COURSE THE REDACTION MAY REPRESENT DISCLOSURE OF
A CI'S IDENTITY, EXPRESSED IDENTITY, SAVVY DEFENDANT CAN OFTEN ASCERTAIN THAT
IDENTITY OF THAT CI JUST FROM OTHER INFORMATION THAT MIGHT NOT BE REDACTED IN A
GIVEN CASE. THAT CAN INVOLVE THE GENERAL TIME FRAME OF THE BUY, THE
MUNICIPALITY IN WHICH IT OCCURRED. THEN OTHER INFORMATION SUCH AS THE TYPE AND
AMOUNT OF DRUGS SHOELD, MARKETINGS ON THE PACKAGING. WHAT IT COMES DOWN TO
REALLY IS I THINK FROM A PRACTICAL STANDPOINT IS IT'S DIFFICULT TO EXPECT THE --
GIVEN WHAT'S AT STAKE WHICH IS THE SAFETY OF THE CI AND THE CI WAS FAMILY AND OTHER
PEOPLE RELATED TO THE CI THAT FROM A PRACTICAL STANDPOINT (ZOOM AUDIO
GLITCH) EXPECT A JUDGE TO REDACT A DOCUMENT WITH SUCH PRECISION THAT IT BOTH PROTECTS
THE SAFETY OF THE C-I AND THE CI'S LOVES ONES AND ALSO STILL ALLOWS THAT
DOCUMENT TO BE MEANINGFUL AND PROVIDE INFORMATION THAT IT'S BEING DISCLOSED FOR
IN THE FIRST PLACE. JUSTICE PATTERSON: AREN'T --
(SIMULTANEOUS CROSSTALK) ISN'T THE PROSECUTOR VEFBALLY INVOLVE IN THAT? DOESN'T
THE PROSECUTOR PROPOSE A REDACTION THAT WOULD PRESUMABLY TAKE AWAY THOSE FACTS IN
ADDITION TO THE OBVIOUS FACT OF THE IDENTITY THAT WOULD
SIGNAL THE IDENTITY OF THE CI? PATRICK F. GALDIERI, II: YES. I
MEAN, THE PROSECUTOR WOULD HAVE A SAY IN THAT, OBVIOUSLY AND PROPOSE THE
REDACTIONS, BUT STILL GIVEN WHAT'S AT STAKE WHICH IS LIFE OR DEATH LITERALLY OF THE
CI AND THE CI'S FAMILY AND LOVED ONES, THAT IT'S TOUGH TO EXPECT ANY GROUP
OF PEOPLE, THE PROSECUTOR AND THE JUDGE, WHATEVER IT MAY BE, TO STILL ALLOW THAT
TO BE MEANINGFUL AND DISCLOSE THAT INFORMATION THAT'S BEING SOUGHT IN THE
FIRST PLACE WHILE STILL PROTECTING THE SAFETY OF THE CIS.
(SIMULTANEOUS CROSSTALK) JUSTICE SOLOMON: I'M SO A. I TRUST IN YOUR
-- I AFALL JZ, CHIEF. IN YOUR EXPERIENCE AS A PROSECUTOR,
YOU DON'T ALWAYS KNOW EXACTLY WHAT IS THE MINUTIA OF INFORMATION THAT MIGHT
BE REVEALED THAT TRIGGERS FOR THE DEFENDANT WHO THE CI WAS.
PATRICK F. GALDIERI, II: EXACTLY. JUSTICE SOLOMON: THAT THE MY
UNDERSTANDING. PATRICK F. GALDIERI, II: THAT'S EXACTLY WHATROOM
RR SAYING. I THINK THAT EVERY (ZOOM AUDIO GLITCH) IS ACTIVITY CHT SOME MIGHT BE
MORE UFWEAR OF THAF TAEFBS AS SERS. SOME MIETH BE SO DEEPLY UP WEAR THAT
PROSECUTOR DOESN'T EVEN REALIZE IT. THERE IS MIGHT BE SOMETHING IN THE REPORT
THAT YOU DON'T EVEN THINK ABOUT REDACTING THAT GIVES IOWA THE IDENTITY OF THE CI
THAT AS I POINTED OUT THE DEFENDANT MIGHT THINK HE KNOWS WHO THAT -- HE
MIGHT VERY CONFIDENTLY BELIEVE THAT HE KNOW WHOSE THAT CI IS AND FROM THE
PERSPECTIVE OF THE SAFETY OF THE CI AND THE CI'S FAMILY ITDANT MATTER WHETHER
LEE IS RIGHT OR WRONG, IT IT MATTERS HE THINKS HE KNOWS HE IS THE ONE WHO SOLD
HIM OUT AND THAT'S THE ONE HE IS GOING TO COME AFTER. THAT'S WHY I SAID RIGHT
GUESSES ARE JUST AS DANGEROUS AS WRONG GUESSES. JUSTICE
SOLOMON: AND YOU WON'T. (SIMULTANEOUS CROSSTALK)
JUSTICE SOLOMON: TON THILL DAMAGE IS DONE. PATRICK F. GALDIERI, II:
EXACTLY. CHIEF JUSTICE RABNER: WOULD YOU AGREE THAT SOME
DOCUMENTS PRESENT A GREATER RISK IN THIS RESPECT THAN OTHERS? DLD BE VERY DIFFICULT,
FOR EXAMPLE, TO REDACT APCONVERSATION AND CONVEY ANYTHING WITHOUT DISCLOSING
THE CI? ON THE OTHER HAND, A LAB REPORT THAT RELIEVES THE VULTS AND THE DATE WHICH ARE
ALREADY CONTAINED IN THE AFFIDAVIT PRESENT FAR LESS OF A RISK?
PATRICK F. GALDIERI, II: YES. I CERTAINLY THINK THAT THE CONVERSATION WOULD BE
MORE IS DIFFICULT TO REDACT GIVEN THE NATURE OF CONVERSATIONS AND, YOU KNOW,
AS MR. YOMTOV SAID, WHAT ARE YOU GOING TO HAVE ONE SIDE OF THE CONVERSATION? SO
THAT MIGHT BE MORE DIEFLT REDACT THAN A LAB ROFRMENT ALTHOUGH I STILL THINK THAT
REDACTION OF A LAB REPORT COULD POSE THE DANGERS THAT ARE OF CONCERN.
(SIMULTANEOUS CROSSTALK) JUSTICE ALBIN: MY LAST QUESTION.
WHAT COULD THAT DANGER BE? WHEN THE AFFIANT INDICATED THAT
HE SENT THE CI IN FOR A TRANSACTION, THE DRUG CAME BACK, TESTED FOR MOLLY. AND
THE DEFENDANT IS ASKING FOR THE REPORT JUST TO MAKE CERTAIN -- JUST TO
CONFIRM TO VERIFY THAT THERE WAS A SUBMISSION AND IT CAME BACK MOLLY. WHAT ADDITIONAL
DANGER WOULD THAT PRESENT SINCE THAT INFORMATION WAS ALREADY IN THE
AFFIDAVIT? PATRICK F. GALDIERI, II: WELL IT WOULD (ZOOM
AUDIO GLITCH) AS PART OF THE RECORD (ZOOM AUDIO GLITCH) THAT COULD HAVE BEEN THAT
CONCERN. I I MEAN I GSZ TPGD BE MORE DETAILED IN THE GENERAL TIME FRAME AS
PROVIDE NLT AFFIDAVIT. JUSTICE ALBIN: THAT COULD BE REDACTED.
ASSUME APPROPRIATE REDACTIONS. PATRICK F. GALDIERI, II: WELL, ASSUMING
APPROPRIATE REDACTIONS AND THAT WHAT IS BEING TURNED OVER IS -- MIRRORS
WHAT IS IN THE AFFIDAVIT AND NOTHING MORE, THEN, OF COURSE, THERE WOULDN'T BE A
CONCERN OF DISCLOSE -- BASE CLAEWHAT YOUR HONOR, CORRECT ME IF I'M WRONG,
OBVIOUSLY, IS SAYING IS THE INFORMATION THAT WOULD BE PROVIDED IN THE LAB REPORT
WOULD BE NO DIFFERENT THAN THE INFORMATION THAT HE ALREADY HAS THROUGH THE
FAED. JUSTICE ALBIN: IT WOULD BE NO DIFFERENT OR IT WILL
BE DIFFERENT -- (SIMULTANEOUS CROSSTALK)
JUSTICE ALBIN: IT WILL REFLECT IT IS MOLLY OR IT WILL REFLECT THAT MAYBE IT WAS
SOMETHING ELSE OR NEGATIVE. PATRICK F. GALDIERI, II: WELL
THEN THAT WOULD GO THEN ALSO TOWARDS THE NEED OF THE -- HAD WHOLE DISCUSSION
IF IT AFFIANT SAID IT WAS DRUGS AND IT WAS MATERIAL, THEN THEN FVS MATERIAL AND
FALSE. THE F THE CI SAID HE THOUGHT IT WAS BUYS DRUGS AND IT TURNS OUT IT WAS
THEN THERE WAS NO FALSEHOOD AND IT WAS NOT MATERIAL, BUT AS FAR ASTHAL DANGERS
THAT WOULD BE POETZED IN THIS PARTICULAR CASE, I MEAN I GUESS THE LAB REPORT WOULD
NEED TO BE VIEWED ITSELF TO SEE WHAT MIGHT PRESENT ITSELF.
JUSTICE LAVECCHIA: (SIMULTANEOUS CROSSTALK)
JUSTICE LAVECCHIA: THE LAB REPORT BEING ANY DIFFERENT THAN A FIELD TEST DONE IMMEDIATELY
ON THAT DATE THAT IT WAS MOLLY. I MEAN, IF IT WAS REDACTED TO SIMPLY CONFIRM
WHAT WAS IN THE AFFIDAVIT THAT IT TESTED FOR A PARTICULAR DRUG REPRESENTED IN THE
OFFICER'S AFFIDAVIT, I JUST DON'T SEE IT ANY DIFFERENTLY THAN FIELD TEST
RESULTS BEING INCLUDED IN THE AFFIDAVIT. PATRICK F. GALDIERI, II:
WELL, I GUESS THEN IF IT WERE REDACT TODAY THAT EXTENT THAT IT ONLY DISCLOSE
THAT, THEN THERE WOULDN'T BE A CONCERN, BUT THAT WOULD REQUIRE, YOU KNOW, TEXANCEIVE
REDACTION. JUSTICE SOLOMON: IS THERE A DIFFERENCE IF YOU WERE
CHARGED WITH THE DRUGS THAT ARE FIELD TESTED IN THIS CASE WHERE YOU'RE NOT CHARGED
WITH THE DRUGS THAT WERE THE SUBJECT OF THE LAB TEST. INI UNDERSTAND IT HEEFS
NOT CHARGED WITH THE SALE TO THE CI AND SO REGARDLESS OF WHAT THE DRUG WAS, YOU
DON'T OVERCOME THE MATERIALITY PART OF T CORRECT? PATRICK F.
GALDIERI, II: YES, YOUR HONOR. I WAS TRYING TO ANSWER THE OTHER JUSTICES QUESTION.
JUSTICE SOLOMON: AND SECONDARILY IF YOU IDENTIFY, IN FACT,
IN THIS OBSCURE CASE WHERE HE IS NOT CHARGED WITH THAT SALE TO THE CI, THEN, IN
FACT, IT WAS FLOUR OR SUGAR, THAT IN ON IT TOSELF BASED ON THE DATE AND
PROXIMITY TO THE DATE OF THE SALE MIGHT TIP OFF TO THE DEFENDANT WHO ACTUALLY TURNS
OUT WAS A DRUG DEALER WITH GUNS WHO THE CI WAS. PATRICK F.
GALDIERI, II: YES, TO THE SECOND PART OF YOUR QUESTION THAT'S EXACTLY WHAT I'M
TRYING TO SAY. FRAZ THE FIRST PART ABOUT THE -- BEING KARJED WITH THE
UNDERLYING CONDUCT, THAT REAL HAE IS IMPORTANT AND DHATSZ RR WHAT'S PORNTS IN THIS
CASE IS THE STATE DIDN'T CHARGE THE DEFENDANT OR INDICT THE DEFENDANT WITH THE
UNDERLYING STUNS OF THE DEFENDANT. AND THAT'S WHY IT DOESN'T FALL UNDER
THE DISCOVERY RULE AS IN ALMOST ALL THE OTHER -- I CAN'T THINK OF A CONTEXT WHERE
THE DISCOVERY RULE WOULDN'T APPLY TO THE DISCOVERY REQUEST. AND JUSTICE
SOLOMON ASKED ABOUT PRETRIAL DISCOVERY AND ASKED ABOUT THE PRETRIAL DETENTION HEARINGS.
CRIT KRL -- IT AND THE DEFENDANT'S ABILITY TO DEFENDANT AGAINST HIMSELF.
ALL OF THOSE THINGS DIRECTLY IMPLICATE THE DEFENDANT BEING CHARGED -- THE DISCOVERABLE
INFORMATION BEING RELEVANT TO THE ACTUAL CHARGES THAT THE DEFENDANT WAS
FACING IN THAT CASE. IN ORDER TO AMOUNT TO A DEFENSE. JUSTICE
SOLOMON: DIDN'T WE DEAL WITH THAT EXACTISH SUPIS SAY IT WASN'T DISCOVERABLE IN
DICKERSON. PATRICK F. GALDIERI, II: EXACTLY. I THINK THERE
WAS -- I CITED DICKERSON IN THE BRIEF AT ONE POINT. JUSTICE SOLOMON:
I THINK YOU'RE THE ONLY ONE. PATRICK F. GALDIERI, II: THANK
YOU, YOUR HONOR. CHIEF JUSTICE RABNER: IN TERMS OF THE
SHOWING THAT IS REQUIRED OF A DEFENDANT IN THE FRANKS CONTEXT, YOUR POSITION IS
SAYING I NEVER SOLD MOLLY IS NOT ENOUGH. PATRICK F. GALDIERI, II:
CORRECT. JUSTICE PIERRE-LOUIS: EVEN IF THE LAB REPORT
WERE TO SHOW THAT IT WASN'T MOLLY? I MEAN, WE'RE TALKING BOUT THERE DEFENDANT TRYING
TO GET TO THE FRANKS HEARING AND HERE HE IS SAYING I NEVER SOLD MOLLY. I WANT
TO SEE THE LAB REPORT THAT CONFIRMS THAT WHAT WAS PRESENTED TO THE LAB WAS ACTUALLY
MOLLY. TO JUSTICE SOLOMON'S POINT, THAT IS ALL WE'RE LOOKING, THE DEFENDANT
IS LOOKING FOR THERE LN REPORT TO SEE EXACTLY WHAT THE SUBSTANCE TESTED.
PATRICK F. GALDIERI, II: WELL, BECAUSE OF THE SALE IMPLEMENTATION DRUGS IS
(ZOOM AUDIO GLITCH) I DON'T BELIEVE THAT WOULD BE NECESSARILY.
JUSTICE FERNANDEZ-VINA: IF THAT'S ALL -- (SIMULTANEOUS CROSSTALK)
JUSTICE FERNANDEZ-VINA: I THOUGHT YOU WERE DONE. I'M SAYING.
(SIMULTANEOUS CROSSTALK) JUSTICE FERNANDEZ-VINA:
BOTH TACE I DIDN'T SELL MOLLY, EVERY CASE WOULD BE SUGGEST TO FRANKS HEARINGS
AND DISCOVERY OF EVERYTHING IF THAT'S THE STANDARD TO SAY I DIDN'T SELL MOLLY AND
THAT'S THE END OF IT. (SIMULTANEOUS CROSSTALK)
PATRICK F. GALDIERI, II: THAT IS A CONCERN -- I'MY, YOUR HONOR.
THAT IS THE CERB THAT THIS HAVE HAPPENED IN EVERY CASE, I WANT TO TAKE THIS OPPORTUNITY
TO REITERATE THAT AT THE VERY LEAST, THE VERY LEAST, THERE NEEDS TO BE A
SWORN STATEMENT TO SWOERT THEAL AIGATIONS THAT GIVE RISE TO THE DISCOVERY
CONVERSATION, THAT'S THE CONTEXT OF PCR WHICH WHEN REALLY ALL WE'RE TALK BOUT AND
WHETHER THERE SHOULD BE A TESTIMONIAL HEARING AND THERE IS NO COMPETING
CONCERN ABOUT THE SAFETY OF ANYONE ELSE INVOLVED Y. MEAN HERE WE JUST HAVE COUNSEL
ALNLING THAT ORAL ARGUMENT WITHOUT ANY SWORN STATEMENT, ANY WRITTEN STATEMENT
NOTHING THROUGH COUNSEL THE DEFENDANT SAYS I DIDN'T DO IT BASICALLY. AND WITHOUT
-- (SIMULTANEOUS CROSSTALK) CHIEF JUSTICE
RABNER: ONE SECOND. JUSTICE PIERRE-LOUIS: I'M FINE. YOOUK GO
AHEAD, JUSTICE ALBIN. JUSTICE ALBIN: I HAVE A QUESTION ABOUT THE
PROSECUTOR'S OBLIGATION. I'M TALK TG BOUT ETHICAL RESPONSIBILITY.
ASSUME AS IN THE CASE SUCH AS THIS, THE AFFIDAVIT STATES THAT THE AFFIANT
SUBMITTED THE DRUG TO THE LAB AND HE PUTS IN THE AFFIDAVIT THAT THE RESULT WAS
MOLLY, BUT THE PROSECUTOR HAS THE LAB REPORT AND IT SAYS FLOUR.
DOES THE PROSECUTOR HAVE ETHCOULD RESPONSIBILITY TO TURN THAT HOEFSH TO
DEFENSE COUNSEL? PATRICK F. GALDIERI, II: I THINK THAT WOULD GO
THROUGH BRADY MATERIAL WHERE IT WOULD HAVE TO BE EXCULPATORY. AND THAT'S KIND
OF IN ORDER FOR THE ETHICAL OBLIGATION TO TURN IT OVER TO COME INTO PLAY AND
THAT WOULDN'T BE EXCULPATORY BECAUSE THOSE WEREN'T CHARGES THAT THE DEFENDANT IS
FACING LFRMS YOUR ANSWER IS NO. I WANT TO BE CLEAR ABOUT WHAT YOU'RE TELLING US.
YOUR ANSWER IS NO R. YOU'RE TELLING US THAT A POTENTIAL LIE OR A LIE NVT
AFFAFT DOESN'T HAVE TO BE DISCLOSED TO DEFENSE COUNSEL?
PATRICK F. GALDIERI, II: IN THIS CONTEXT I DON'T BELIEVE SO BECAUSE IT WOULDN'T
BE EXCULPATORY BECAUSE IT GUZANT GO TOWARDS THE ACTSUAL CHARGES CHASING IT
DEFENDANT. I'M NOT SAYING IT WOULD BE NEVER -- JUSTICE ALBIN: THAT
STRIKES ME AS VERY STRANGE SINCE THE FRANKS HEARING REQUIRES THE DEFENDANT
TO MAKE A PRELIMINARY SHOWING THAT THERE WAS A DELIBERATE FALSEHOOD OR A STATEMENT
MADE IN RECKLESS DISREGARD OF THE TRUTH AND YOU'RE NOW TELLING US THAT THE
PROSECUTOR CAN SIT ON THAT VERY INFORMATION THAT WOULD PERMIT THE PRELIMINARY SHOWING
AND NOT DISCLOSE IT. THAT'S WHAT YOU'RE TELLING US? PATRICK F.
GALDIERI, II: I'M SAYING NOMA STARTING POINT TOOFB THAT DISCUSSION THE DEFENDANT
BETTER PUT HIS ABGAGZ IN THE SWORN STATEMENT OTHERWISE THERE WAS NO.
(SIMULTANEOUS CROSSTALK) JUSTICE ALBIN: SO YOU'RE
TELLING ME -- YOUR ETHICAL OBLIGATION REQUIRES AN ALLEGATIONISM YOU KNOW
THAT THERE'S BEEN A FALSEHOOD EITHER DELIBERATE OR WHATEVER AND YOU HAVE NO OBLIGATION
TO TURN IT OVER IS WHAT YOUR TELLING US? PATRICK F. GALDIERI, II:
IF IT DOZEN RELATE TO THE UNDERCHARLGING CHARGES AND WE'RE TALK BOUT IN A FRANK
CONTEXT, THEN YES, I THINK THAT THE DEFENDANT IN ORDER TO EVOON BE -- HAVE THE
CONVERSATION TO BELIEVE ABLE TO MEET THAT HEIGHTENED STANDARD NEEDS TO FUT IT IN
A INTORN STATEMENT HE SEE SUGGESTS HIM SWEAR TO FALSE SWEARING KARJS IN
IF FACT HE IS FULL OF IT ^ CHECK THAT CONCERN KWAICH. CHIEF
JUSTICE RABNER: DO YOU AGREE YOU WOULD BE DISCLOSING THAT M NAS MAFR IF THE AFFIANT
TESTIFIED AT TRIAL? WITH OR WITHOUT A REQUEST? PATRICK F.
GALDIERI, II: CERTAINLY YES. CHIEF JUSTICE RABNER: OTHER QUESTIONS?
ALICIA J. HUBBARD: MAY IT PLEASE THE COURT. TO BE CLEAR, IN
THE INSTANT CASE THE STATE SEEKS TO PRECLUDE THE PEOPLE THEY ARE PROSECUTING FROM
HAVING ACCESS TO INFORMATION THAT HAS A TENDENCY IN REASON TO PROVE OR
DISPROVE FACTS OF SEQUENCE. THAT'S RELEVANT EVIDENCE. THE STATE COMPLAINTS THAT
THE APPELLATE DIVISION DECISION PROVIDING THE BASIC DISCOVERY TO THE INDIVIDUAL
THEY ARE PROSECUTING IMPOSES TOO HEAVY AVENUE BURDEN ONY THEM AND WILL
SOMEHOW QUELL THEIR USE OF CONFIDENTIAL INFORMANTS BECAUSE IT WILL RESULT IN THE
REVEALING OF THE IDENTITY OF THE PEOPLE THAT WORK FOR THEM. BUT THE APPELLATE
DIVISION DECISION DOES NO SUCH THING. HERE IN THIS CASE THE DEFENSE REQUESTED
LIMITED, SPECIFIC PIECES OF DISCOVERY. THINGS LIKE THE LAB REPORTS, POLICE
REPORTS, AND AN IN CAMERA JUDICIAL REVIEW OF INTERCEPTED PHONE CALLS THAT THE UNION
COUNTY PROSECUTOR'S OFFICE SAY INVOLVED MR. DESIR. THESE THINGS SERVE FOR
THE BASIS THE SEARCH WARRANT. NOT ONLY DID THE STATE REFUSE TO TURN THEM OVER,
THEY REFUSED TO EVEN CONFIRM THESE PIECES OF DISCOVERY. PHASED WITH THE STATE'S
REFUSAL, THE DEFENSE WAS LEFT TO FILE A MOLESTATION TO COMPEL DISCOVERY AND THAT
FRANKS MOTION NOW THE FIRST MOTION JUDGE HEARD THE FRANKS MOTION KNOWING
THAT THE DEFENSE HAD AN OUTSTANDING DISCOVERY REQUEST THAT IT HAD NOT BEEN
DISPOSED OF BY THE COURT AND THEN DENIED THAT MOTION WHY? BECAUSE THE DEFENDANT
COULDN'T MAKE THE PRELIMINARY SHOWING OF FALSEHOOD. BUT THE VERY SOUGHT AFTER
DISCOVERY NEEDED TO BE OBTAINED AND ANALYZED BY THE DEFENSE TO SEE IF IT COULD
HELP THEM MEET THAT BURDEN. THEN MONTHS LATER A SECOND MOTION 80 DECIDED
FINALLY THE DISCOVERY MOTION AND DENIED IT. WHY IN PART BECAUSE THE FRANKS MOTION
HAD BEEN DENIED. BUT THAT JUDGE ALSO SAID THAT THE DISCOVERY SHOULD BE DENIED
BECAUSE A DEFENDANT HAD FAILED TO MEET THE CRITERIA TO PIERCE THE CONFIDENTIAL INFORMANT
PRIVILEGE. THE THING IS DEFENSE NEVER ASKED TO PIERCE THAT PRIVILEGE.
IN FACT THE THE STATE DIDN'T EXPLAIN HOW THE DISCOVERY OF THINGS LIKE HAVING THE COURT
LOOK AT THE EITHER TAPES OR TRANSCRIPTS WHATEVER THEY MAY HAVE OF THE CALLS
IN CAMERA WAS GOING TO REVEAL THE IDENTITY TO THE DEFENDANT THEY DIDN'T EXPLAIN
HOW A REDACTED LAB REPORT WOULD REVEAL THE IDENTITY OF THE CONFIDENTIAL INFORMANT
OR HOW LOOKING AT A REDACTED LAB REPORT WAS GOING TO DISCLOSE WHO THE CI WAS.
IN MAKING THESE ARGUMENTS, THE STATE SOUGHT TO DENY THE DEFENDANT
AND THOSE WHO ARE SIMILARLY SITUATED ANY ACCESS TO THE EVIDENCE IN THE STATE'S
SOLE CONTROL THAT TO CALL INTO QUESTION THE LEGITIMACY OF A WARRANT THEY
ADVOCATE TO BE CLEAR A SYSTEM WHERE STATE ACTORS CAN SERVE AS AN AVENUES MAKE
ALLEGATIONS AND THOSE ALLEGATIONS CAN NEVER BE CHALLENGED ESSENTIALLY.
THIS DENIAL OF DISCOVERY FWHOET IS NOT ONLY THAT PREVENTS DEFENDANTS FROM CHALLENGING
THE VALIDITY OF A WARRANT IT ALSO PRECLUDE THEM FROM GETTING EVIDENCE THAT
COULD BE USED TO IMPEACH WITNESSES AT TRIAL IT ALSO PRECLUDES THEM FROM GETTING
EVIDENCE THAT COULD BE USED PRETRIAL TO DEVELOP DEFENSES SUCH THINGS LIKE
THIRD-PARTY GUILT OR IDENTIFICATION. THE APPELLATE DIVISION JUST TO MAKE THIS
PLAIN DID NOT HOLD THAT MR. DESIR WAS ENTITLED TO SUPPRESSION OF THE
EVIDENCE THEY DIDN'T HOLD HE WAS ENTITLED TO UNFETTERED ACCESS TO THE STATE'S FILE
THEY DIDN'T HOLD THAT HE WAS ENTITLED TO THE IDENTITY OF THE CI. IN FACT, THEY
DIDN'T HOLD HE WAS ENTITLED TO A HEARING UNDER FRANKS. ALL THAT THE APPELLATE
DIVISION SAID WAS THAT IN A SYSTEM WHERE THE WEIGHT OF AN ENTIRE STATE IS AGAINST
ONE SINGLE ACCUSED PERSON IS AN ABUSE OF DISCRETIONARY FOR THE COURT TO
KEEP THAT PERSON FROM HAVING ACCESS TO THE VERY DISCOVERY THE STATE USED TO ACCUSE
THE PERSON AND THEN GET A WARRANT. TO BE SURE, THE REQUIREMENT IMPOSED
TO GET A HEARING UNDER FRANKS ARE HEAVY. BUT THE FACT REMAINS THERE IS THE RIGHT
TO CHALLENGE THE VALIDITY OF A WARRANT, AND THERE'S THE REMEDY OF SUPPRESSION
IF THAT WARRANT IS NOT WANTING. BUT THE APPELLATE DIVISION DID HERE IS SIMPLY
PROVIDE A REASONABLE, RATIONALE ROUTE FROM THE RIGHT TO THE REMEDY. THAT
ROUTE IS THE PROVISION OF DISCOVERY. IN THIS CASE AND IN SIMILAR CASES, THAT DECISION
IS JUST AND WE ASK THAT IT BE AFFIRMED. CHIEF JUSTICE RABNER:
SO TELL US WHAT SPECIFIC DISCOVERY YOU BELIEVE YOU ARE ENTITLED TO IN CASE
LIKE THIS. IMAGINE YOU HAVE A SITUATION WHERE THERE'S AN EXTENDED RELATIONSHIP
THAT DATES BACK MONTHS BETWEEN THE CI AND THE DEFENDANT. AND THAT LIKE IN THIS
CASE, YOU HAVE A SINGLE BUY ALLUDE TO IN THE AFFIDAVIT THAT'S NOT LATER CHARGED.
TALK TO US ABOUT WHAT YOU BELIEVE YOU'RE ENTITLED TO BY WAY OF DISCOVERY IN
TERMS OF POLICE REPORTS, THE TRANSCRIPTS AND THE LAB REPORT AND LET'S START WITH
POLICE REPORTS. WHAT ARE YOU ENTITLED TO. ALICIA J. HUBBARD:
SO WE DO BELIEVE THAT WE WERE ENTITLED TO OR IF THE APPELLATE DIVISION SAID, TO
CERTAIN POLICE REPORTS. NOW, TO BE CLEAR, THE STEPS DOES NOT BELIEVE THAT EVERYTHING
SHOULD JUST BE TURNED OVER. ESPECIALLY WITHOUT REDACTION AND IN CAMERA
PROCEEDINGS YES IT CAN BE BUT IN THIS CASE THE OFFICER IN THE AFFIANT REFUSED TO
SAY THINGS LIKE WHAT, WHAT PHONE NUMBER WAS FILED, AND WE KNOW IN THIS CASE AND
IT COULD VERY SIMILAR CASES BUT THE OFFICER, THE AFFIANT SAID THAT THE
SAYS SEVERAL PEOPLE WERE USING THIS NUMBER TO CONTACT THE PERSON THAT HE CLAIMS
WAS MR. DESIR SO IT'S NOT A SITUATION WHERE THIS CONFIDENTIAL INFORMANT
IS THE ONLY PERSON WHO WOULD BE USING THAT NUMBER SO THE REPORTS WOULD INCLUDE
THINGS LIKE THAT. THE REPORT AND WE BELIEVE THAT WE'RE ENTITLED TO THAT
TYPE OF INFORMATION. THAT. CHIEF JUSTICE RABNER: STAY WITH THE POLICE
REPORTS PLEASE. SO ASSUME THAT THERE'S A POLICE REPORT RELATING TO THE
CONTROLLED BUY AND THAT THERE ARE ANOTHER HALF A DOZEN POLICE REPORTS ABOUT THE
INTERACTION BETWEEN THE CI AND THE DEFENDANT THAT PRECEDE THE CONTROLLED
BUY. WHAT DO YOU BELIEVE YOU ARE ENTITLED TO? ALICIA J. HUBBARD:
SO, THE CURRENT STANDARD FOR FRANKS IS WHETHER WE AGREE WITH IT OR NOT, IS
CONCERNED WITH THE STATEMENTS MADE BY THE OFFICER. THE AFFIANT. THAT'S ANOTHER
NAME FOR THE AFFIANT. SO IF TORE REPORTS FRINGES STANCE WITH THE
REPORT WITH THE PHONE NUMBER, THAT'S SOMETHING THAT THE DEFENSE CAN SHOW
IS RELEVANT. AND THEY COULD SHOW IF, YOU KNOW, IF THE NUMBERS AND ASSOCIATED WITH
HIM NO CALLS CAME TO THAT NUMBER THAT'S A TRUE OR FALSE SITUATION. IT WOULD
DEPEND ON THE NATURE OF THOSE REPORTS CONCERNING THE INTERACTION WITH THE CI.
THE CASE LAW IS VERY CLEAR. COMMUNICATIONS MADE BY THE CI ARE NOT
NECESSARILY COVERED BY THE CONFIDENTIAL INFORMANT'S PRIVILEGE IT IS ONLY IF REVEAL
THE IDENTITY OF THE CI. NOW THE COURT HATS TO MAKE THAT DETERMINATION.
AND WE TONE PRETEND THAT WE CAN MAKE THAT DETERMINATION. SO THE COURT WOULD HAVE
TO TO IT IN CAMERA AND DECIDE WOULD THIS REVEAL THE IDENTITY OF THE
CONFIDENTIAL INFORMANT. JUSTICE FERNANDEZ-VINA: CHIEF
JUSTICE RABNER: MAY I JUSTICE I'M NOT SURE I HAVE THE ANSWER TO WHAT IS CONCERNING
TO ME. DO THEY GET THE SINGLE REPORT OR GET THE HALF A DOZEN ADDITIONAL
REPORTS THAT ALL RELATE TO THE RELATIONSHIP BETWEEN CI AND THIS DEFENDANT? CAN YOU
ANSWER THAT. ALICIA J. HUBBARD: WHAT YOU ARE TELLING ME THAT
IT RELATES TO THE RELATIONSHIP WENT THE CI AND THE DEFENDANT, I QUITE FRANKLY
SURPRISING COME TO A STEPS ATTORNEY BUT IF IT RELATES TO THEIR RELATIONSHIP THAT
SEEMS LIKE THE TYPE OF INFORMATION THAT COULD ACTUALLY REVEAL WHO THE CI
IS AND THE COURT CAN LOOK AT THOSE REPORTS AND SAY IT'S TALKING ABOUT THEIR RELATIONSHIP
THAT'S GOING TO REVEAL HIS IDENTITY THAT COULD BE COVERED BY THE CONFIDENTIAL
INFORMANT PRIVILEGE. SO IN THOSE SITUATIONS NO, IT WOULD SEEM THAT THE COURT
WOULD RULE THE DEFENDANT IS NOT ENTITLED TO THOSE REPORTS. CHIEF
JUSTICE RABNER: ONE LAST QUESTION THEN I JUSTICE FERNANDEZ-VINA. A HALF OF DOZEN
CONTROLLED BUYS. ONLY ONE IS MENTIONED IN THE AFFIDAVIT THE OTHER FIVE
POLICE REPORTS IN YOUR VIEW GET TURNED OVER OR NOT THAT'S WHAT I WAS ALLUDING TO
WITH THE INARTFUL PHRASE RELATIONSHIP. ALICIA J. HUBBARD: I'M SORRY.
I DIDENED THAT THEY REFER TO CONTROLLED BUYS BUT THOSE CONTROLLED BUYS ARE
NOT MENTIONED IN THE AFFIDAVIT. CHIEF JUSTICE RABNER: CORRECT.
ALICIA J. HUBBARD: I DO NOT TO SAY NO CATEGORICALLY ONLY BECAUSE I COULD
IMAGINE THAT THERE COULD BE A SITUATION WHERE THERE IS SOMETHING ABOUT THOSE,
THE FOLLOWERS ABOUT THOSE CONTROLLED BUYS IN THE REPORT WOULD COUNTER THE INFORMATION
IN THE AFFIDAVIT ABOUT A CONTROLLED BUY BUT UNLESS THAT INFORMATION CALLS
INTO QUESTION THE VORACITY OF THE STATEMENTS ABOUT THE CONTROLLED BUY IN THE REPORT,
THEN IT WOULD SEEM THAT THERE WOULD BE BASIS FOR THE COURT TO SAY NO, YOU
DON'T GET THAT. BECAUSE IT'S NOT RELATED TO THE AFFIDAVIT. AGAIN.
THE SPEAKER: ALWAYS ARE SITUATIONS NUANCES COULD BE AN ARE REASON WHY IT WOULD
RELATE TO THAT AFFIDAVIT BUT IF IT DOESN'T, THEN IT'S NOT NECESSARILY
CLEAR THAT THE DEFENSE WOULD GET IT FOR THE PURPOSES OF THIS FRANKS HEARING. IT
DOES NOT MEAN HOWEVER THAT THERE MIGHT NOT BE THINGS IN IT THAT WOULD RELATE TO
THINGS FOR TRIAL. JUSTICE FERNANDEZ-VINA: MS. HUBBARD IF THE
ISSUE AS YOU PRESENTED IS WHETHER THERE WAS ACTUAL DRUGS OR PERHAPS FLOUR
OR MOLLY AS OPPOSED TO SOMETHING ELSE, HOW IS THE PHONE NUMBER RELEVANT TO THAT?
HOW DOES THE PHONE NUMBER GO IN ANY WAY TO PROVE THAT THE AFFIDAVIT WAS
FALSE THAT IT CONTAINED FLOUR AND THE OFFICER INDICATED IT WAS MOLLY WHAT DOES
THE PHONE NUMBER HAVE TO DO WITH THAT. ALICIA J. HUBBARD: FIRST OF
ALL TO BE CLEAR I NEVER POSED THE IDEA THAT IT WAS AN IMITATION SUBSTANCE
THAT WAS ACTUALLY. JUSTICE FERNANDEZ-VINA: I'M JUST ASKING A
HYPOTHETICAL QUESTION. ASSUMING THE ISSUE IS THAT HOW IS A PHONE NUMBER WHEN THE
DRUG WAS BOUGHT RELEVANT OR NOT, THE ISSUE IS THE LAB REPORT COMES BACK AS FLOUR,
AND THE AFFIDAVIT SAID IT WAS MOLLY. SO HOW IS A PHONE NUMBER RELEVANT
TO THAT THAT YOU SEEK THE PHONE NUMBER? ALICIA J. HUBBARD: SO THE
PHONE NUMBER IS RELEVANT FOR AT LEAST TO DIFFERENT REASONS ONE OF THE REASONS
THAT THE PHONE NUMBER IS RELEVANT IS BECAUSE IF IN FACT FIRST OF ALL, THE DEFENDANT
COULD SUBPOENA THE RECORD FROM THE PHONE NUMBER AND PERHAPS THERE WERE NO CALLS
TO THAT PHONE NUMBER. THAT'S ONE ISSUE RIGHT AND THAT WOULD ALLOW THEM TO RAISE THE
QUESTION OF VORACITY OF THE WARRANT BUT IN ADDITION TO THAT. JUSTICE
FERNANDEZ-VINA: THAT'S NOT THE FRANK'S HEARINGS HEARING. ALICIA
J. HUBBARD: YES IT IS WHEN YOU ARE CALLING INTO QUESTION THE VORACITY OF THE WARRANT
SO IF THE AFFIDAVIT SAYS THE OFFICER OVERHEARD, HE DIDN'T SAY JUST HE
WASN'T JUST TALKING ABOUT THE CONFIDENTIAL INFORMANT HE SAID HE WAS PRESENT FOR
THESE TWO PHONE CALLS SO IF IN FACT THERE WERE NO PHONE CALLS TO THAT NUMBER,
OR FROM THAT NUMBER, THEN THAT GOES TO THE VORACITY OF THE AFFIDAVIT. BUT IN ADDITION
TO THAT, THAT INFORMATION IS IMPORTANT AS I SAID, BECAUSE IT WOULD ASSIST
THE DEFENDANT IN STASHING THE THERAPY FWILLT THAT'S MORE ON THE TRIAL SIDE.
JUSTICE FERNANDEZ-VINA: THAT'S A TRIAL ISSUE WE'RE NOT TALKING 3:13-3
RIGHT NOW WE'RE TALKING FRANKS LIMITATIONS ON A FRANKSHEARING.
ALICIA J. HUBBARD: YOUR HONOR JUST TO BE CLEAR THE DEFENSE IS NOT EVER CONFUSED
313 DOES NOT APPLY TO THIS HEARING IN FACT THE PARTIES BELOW ALL ASSUME
THAT IT DID AND THAT'S WHY THAT ISSUE WAS NOT BRIEFED AND TO THE EXTENT THAT THIS COURT
QUESTIONS WHETHER 3:13 APPLIES THEN WE WOULD ASK FOR SUPPLEMENTAL BRIEFING
ON THAT ISSUE. JUSTICE FERNANDEZ-VINA: BUT 3:13 ALWAYS
APPLIES BUT IS LIMITED IN THIS SITUATION OF COURSE IT ALWAYS A WISE BUT IN THIS
FRANKS HEARING IT'S LIMITED BY THE FRANKS HEARING STANDARD. ALICIA
J. HUBBARD: OUR ENTIRE POSITION HERE IS THAT DISCOVERY IS IMPORTANT AT -- THE
QUESTION ABOUT DISCOVERY AND RELEVANT EVIDENCE GOES TO WHETHER IT TENDS TO
PROVE OR DISPROVE FACTS OF CONSEQUENCE. AND THIS IS A FACT OF CONSEQUENCE. THIS
COURT HAS NOTED AGAIN AND AGAIN THE FEDERAL COURTS HAVE NOTED AGAIN THAT
OFTENTIMES IT IS A TRIAL MOTION IMPORTANT MORE DISPOSITIVE OF AN ACTION THAN A
TRIAL ITSELF THIS IS A FOURTH AMENDMENT. JUSTICE FERNANDEZ-VINA:
DOESN'T YOUR ARGUMENT RIGHT NOW DO AWAY WITH THE FRANKS STANDARD?
ALICIA J. HUBBARD: NO IT DOESN'T BECAUSE FRANKS HAS TO DEAL WITH WHEN ONE GETS
A HEARING. AND AS I INDICATED AGAIN AND AGAIN, BECAUSE I'M CONCERNED THAT
THERE'S CONFUSION. THE APPELLATE DIVISION. JUSTICE FERNANDEZ-VINA:
I'M NOT CONFUSED AT ALL MA'AM NO CONFUSION I DIDN'T SAY WHO WAS CONFUSED BUT
A CONFUSION BECAUSE IT'S BEEN REPEATED AND I SAY THAT BECAUSE I'VE HEARD DIFFERENT
INDIVIDUAL THIS MORNING TALK ABOUT BUT FRANKS SAID YOU DON'T GET A HEARING
UNLESS BUT FRANKS SAYS YOU DON'T GET A HEARING UNLESS THAT'S VERY TRUE WE CAN AGREE
WITH THE FRANKS HEARING AND WE DO BUT THAT'S IN THE THE ISSUE TODAY THAT'S
NOT WHAT THE APPELLATE DIVISION DECIDED. THE APPELLATE DIVISION SIMPLY SAID YOU
GET THE DISCOVERY NOT YOU GET A HEARING. YOU GET THE DISCOVERY. AND SO WHAT
WE ARE TALKING ABOUT IS NOT WHETHER HE GETS A HEARING. HE TO COULD GET THE DISCOVERY
AND THAT DISCOVERY COULD SHOW THAT IT WAS MOLLY WHICH IS ITS OWN QUESTION
BECAUSE WE'RE IN THE EVEN SURE IF IT SAYS ETHYLONE THERE'S ACTUALLY A CASE THAT
THE APPELLATE DIVISION WILL BE HEARING WE'RE NOT SURE IT'S ETHYLONE. IF
IT'S A CONTROLLED DANGEROUS SUBSTANCE BUT THAT WILL BE DECIDED AT THE APPELLATE
DIVISION DECISION ON THURSDAY BUT HE COULD GET THE LAB REPORT AND IT SAY ETHYLONE
WAS SOLD. IN WHICH CASE THAT ISSUE IS NOT AN ISSUE AT LEAST THAT WOULD GO WOULD
SUPPORT HIS MAKING A SHOWING UNDER FRANKS. THAT'S NOT WHAT WE'RE TALKING ABOUT
WE'RE TALKING ABOUT EVEN GETTING DISCOVERY IN THE FIRPTS THEN THE DECISION IS MADE
ABOUT IF GETS A HEARING. I'M SORRY. JUSTICE ALBIN: I WANT
TO ASK YOU A QUESTION ABOUT THE APPELLATE DIVISION'S REMEDY. ASSUMING THAT
YOUR CLIENT WAS ENTITLED TO SOME DISCOVERY, I FAIL TO UNDERSTAND WHAT YOUR
CLIENT WOULD BE ENTITLED TO WITHDRAW HIS PLEA. SHOULDN'T THE REMEDY BE YOU
GET THE DISCOVERY TO WHICH YOU ARE ENTITLED, AND THEN THERE'S A DETERMINATION OF
WHETHER OR NOT YOU ARE ENTITLED TO A FRANKS HEARING. IF YOU ARE NOT ENTITLED
TO A FRANKS HEARING, WHY WOULD YOU BE ENTITLED TO WITH WITHDRAWAL OF A PLEA
DO YOU UNDERSTAND MY QUESTION. ALICIA J. HUBBARD: I DO UNDERSTAND
YOUR QUESTION AS MR. GALDIERI ALLUDE TO EARLIER WHILE THAT WAS IN THE ORIGINAL
OPINION, DEVELOPED MORE IF YOU WILL, IN THE MOTION FOR BAIL OPINION APPEAL, WE
DID ALSO SMAURING COVID ISSUES YOUR HONOR QUITE FRANKLY, ARCHITECTURAL.
JONATHAN RICHES: AND I ARGUED YOU IN THIS BRIEF THAT CAME BEFORE THE
COURT FOR THE BAIL MOTION IT DID NOT SEEM TO ME AT LEAST UNTIL THERE WAS SOME
DISPOSITION OF THIS CASE THAT THAT REMEDY COULD EVEN BE EFFECTUATED BECAUSE HE
COULDN'T MAKE A DETERMINATION ABOUT YOU KNOW, GOING FORWARD WITH, KEEPING THE PLEA
HE HAD OR WITHDRAWING IT WITHOUT SOME DETERMINATION SO IT WASN'T EVEN
SOMETHING THAT COULD BE ACTED ON UNTIL THE ONE ISSUE THAT MR. GALDIERI TALKED ABOUT
I SEEMED TO GROW ON WE BOTH SUBMITTED BRIEFS SAYING THAT COULDN'T BE THE
WAY THAT THIS PROCEEDED AT LEAST AT THAT TIME. IN THIS CASE QUITE FRANKLY IT SEEMS
AS IF IT WAS REMANDED THERE WOULD BE A DECISION ABOUT AFTER THE DISCOVERY
WAS PROVIDED, ABOUT HOW, IF THEY COULD PROCEED WITH A FRANKS HEARING. AND THEN
HE AND THE THE STATE WOULD NEGOTIATE WITH ANY PLEA NEGOTIATIONS THEY WANTED
TO. IF THERE WAS A DETERMINATION THAT THIS CHANGED THE POSITION OF THE CASE.
BUT I DON'T, I COULD NOT FORESEE A WAY THAT THAT WOULD EVEN BE ACTED UPON
LEAST BEFORE THE DISPOSITION OF THIS CASE. CHIEF JUSTICE RABNER: LET'S
GO BACK. JUSTICE SOLOMON: I'M SORRY CHIEF. CHIEF
JUSTICE RABNER: . CHIEF JUSTICE RABNER: LET'S GO BACK FOR A
SECOND TO THE DISCLOSURE QUESTION I WANT YOU TO ASSUME THAT 3:13 DOES NOT COVER
THIS SITUATION HERE. WHAT HAS DEFENDANT SHOWN TO CAST DOUBT ON THE VORACITY OF THE
REPRESENTATION ABOUT THE RESULTS OF THE LAB REPORT? ALICIA J.
HUBBARD: WELL, THE DEFENDANT CAN'T SHOW IT BECAUSE THEY WEREN'T PROVIDED WITH THE
DISCOVERY. BUT I'M SORRY JUST A MOMENT. BECAUSE AGAIN WHAT WE SAY, WHILE
WE'RE CLEAR 3:13 DID APPLY EVEN IF IT DIDN'T, THERE ARE MEANS OF COMPELLING
DISCOVERY OUTSIDE OF RULE, OR IN ADDITION TO OR OUTSIDE OF RULE 3:13. SO
THAT A B, THEY THEY USE INITIALS IN THIS CASE AND W C DECIDED THE 1981, TALK ABOUT
TALK DOING A REVIEW IF DIRECT REPORTS YOU WEIGH THE PROPORTION OF THE THE
EXTENT OF THE INTRUSION TO THE NEED OF THE DEFENDANT. AND THEY LOOK AT THINGS
LIKE IS THE EVIDENCE SOUGHT COULD IT CONTRIBUTE TO AN ADEQUATE DEFENSE OF
THE ACCUSED PERSON CAN IT NOT BE PREPRACTICALLY ATTAINED BY OTHER SOURCES AND
IS THERE A LIKELIHOOD OF SUBJECTING WITNESSES TO INTIMIDATION UNNECESSARY
ANNOYANCE, HARASSMENT OR EMBARRASSMENT AND THE COURT SHOULD WEIGH UNDER THE CASE
LAW THAT WHEN LOOKING AT DISCOVERY OUTSIDE OF, OUTSIDE OF 3:13. HERE THERE WAS
NO SUCH DETERMINATION. IF WE WEIGH THOSE FACTORS THEY WOULD STILL WEIGH IN FAVOR
OF MR. DESIR OR SIMILARLY SITUATED PEOPLE GETTING THE DISCOVERY.
CHIEF JUSTICE RABNER: IN THE CONTEXT OF A FRANKS HEARING, A REQUEST FOR A FRANKS
HEARING, WHAT HAS THE DEFENDANT HERE SHOWN TO CAST DOUBT ON THE RESULTS
OF THE LAB REPORT AS RELAYED IN THE AFFIDAVIT? ALICIA J. HUBBARD:
IN THIS SITUATION NONE BUT WE'RE NOT SAYING HE WAS ENTITLED TO THE FRANKS
HEARING WE'RE SAYING HE SHOULD GET THE DISCOVERY SO THAT HE CAN MAKE THE SHOWING.
CHIEF JUSTICE RABNER: BUT BOTH. ALICIA J. HUBBARD:
BOTH COUNSEL MOVED FOR BOTH BELOW AND ONE WAS HEARD BEFORE THE OTHER. BUT HERE
WHAT WE HAVE BEFORE THE COURT WAS NOT A DISCUSSION ABOUT -- A RULING FROM THE
APPELLATE DIVISION IS NOT ABOUT IF GETS THE FRANKS HEARING, IT'S ABOUT IF THE GETS
DISCOVERY TO MAKE A SHOWING TO GET A FRANKS HEARING. CHIEF JUSTICE
RABNER: YES THOSE ARE CONNECTED QUESTIONS HAS HE MET THE THRESHOLD TO GET THE
DISCOVERY FOR THE PURPOSES OF THE FRANKS HEARING. ALICIA J.
HUBBARD: YES. CHIEF JUSTICE RABNER: NO. ALICIA J.
HUBBARD: YES WE SAY THAT WAS THE CASE LAW THAT I WAS SPEAKING ABOUT WHERE THE COURT
WHEN YOU ARE COMPELLING DISCOVERY OUTSIDE OF RULE 3:13, YOU LOOK AT, YOU
WEIGH WHETHER THE EVIDENCE SOUGHT TO CONTRIBUTE TO AN ADEQUATE DEFENSE OF THE
ACCUSED PERSON. IT CAN BE PRACTICALLY OBTAINED ELSEWHERE OR SUBJECTIVELY
LEAD TO HARASSMENT THAT ASSESSMENT WASN'T DONE BUT WHAT WE SAY HERE IS THAT ALL
OF THOSE THINGS AREN'T, WEIGH IN FAVOR OR MILITATE IN FAVOR OF GIVING MR. DESIR
THE DISCOVERY. SO YES, UNDER THAT CASE LAW, FOR GIVING DISCOVERY OUTSIDE OF RULE
3:13 HE MEETS THE STANDARD. THAT IS NOT THE STANDARD TO GET THE FRANKS HEARING
HOWEVER. THAT IS JUST TO GET THE DISCOVERY I'M SORRY I FEEL LIKE I HAVEN'T ANSWERED
YOUR QUESTION. JUSTICE SOLOMON: CAN I GET CLARIFICATION TO
MAYBE ANSWER BOTH OUR QUESTIONS. IT SEEMS TO ME THAT THE ARGUMENT WAS AND IT SOUND
LIKE YOU ARE GETTING TO THE ARGUMENT BEING THAT THIS WAS POST INDICTMENT
DISCOVERY SOUGHT PURSUANT TO 3:13-3. AND THAT YOU WERE ENTITLED TO CERTAIN DISCOVERY
WHICH WOULD HAD THEN, ENTITLED TO IT UNDER 3:13-3 POST INDICTMENT DISCOVERY, THAT
WOULD OF THEN PROVIDED YOU WITH THE INFORMATION TO MOVE TO A FRANKS HEARING. BUT
UNFORTUNATELY THE COURT SAID FRANKS HEARING NO, AND THEN MOTION TO COMPEL NO.
IS WHAT YOU ARE REALLY ARGUING THAT THE STANDARD THAT SHOULD HAVE BEEN APPLIED
HERE IS NOT THE FRANKS STANDARD BUT 3:13-3 STANDARD AS TO WHETHER THE INFORMATION
SOUGHT IS DISCOVERABLE IN THE FIRST INSTANCE AND IF SO, THEY MIGHT GIVE YOU THE
INFORMATION TO LEAD TO A FRANKS HEARING. IS THAT REALLY WHAT YOU ARE ARGUING?
ALICIA J. HUBBARD: I THINK THAT WAS WHAT THE APPELLATE DIVISION
FOUND. JUSTICE SOLOMON: I'M ASKING YOU I'M NOT SURE THAT'S
WHAT THEY FOUND. I'M NOT SURE WHAT THEY BUT I'M NOT SURE OF THAT I'M ASKING YOU,
IS THAT WHAT YOU'RE ARGUING? THAT IT'S NOT THE FRANKS STANDARD WE'RE WORRIED
ABOUT HERE, IT'S THE THREE THEFT FROM A PERSON THREE STANDARD, AND IF THAT IS APPLIED
HERE, IT WOULD HAVE PROVIDED YOU WITH INFORMATION UNDERMINING THE AFFIANT'S
AFFIDAVIT, THEREBY LEADING TO A FRANKS HEARING AND WHAT YOU WERE REALLY DEPRIVED
OF WAS 3:13-3 DISCOVERY POST INDICTMENT? IS THAT WHAT YOU ARE REALLY ARGUING.
ALICIA J. HUBBARD: I'M SORRY IF THAT HASN'T BEEN CLEAR.
JUSTICE SOLOMON: I'M NOT SURPRISING ME THAT I WOULDN'T BE CLEAR IN MY OWN
HEAD BUT I'M JUST ASKING YOU TO MAKE IT CLEAR. ALICIA J. HUBBARD:
OUR ISSUE IS THAT HE WASN'T GIVEN THE DISCOVERY. YES. HE MIGHT RECEIVE THE
DISCOVERY. IT MAY LEAD HIM TO BE ABLE TO MEET THE FRANKS HEARING BUT BE NEED TO HAVE
DISCOVERY UNDER THREE THERAPY. JUSTICE SOLOMON: SO IF THE 3:13
STANDARD WAS NOT MET, WE NEVER GET TO THE ISSUE OF A FRANKS HEARING BECAUSE
YOU ARE NOT GOING TO GET THE INFORMATION THAT GIVES YOU, THAT ENTITLES YOU, THATY
ESTABLISHES MAKES THE THRESHOLD SHOWING EASY FOR YOU TO SAY THRESHOLD SHOWING
THAT LEAD FRANKS HEARING IN ORDER WE SHOULD BE LOOKING AT 3:13-3 TO GET LOOK AT
IF THIS INFORMATION SHOULD HAVE BEEN DISCLOSED IF SO THEN YOU HAVE ENOUGH
TO MAKE THE FRANKS MOTION AND THE COURT DID IT BACKWARDS. ALICIA J.
HUBBARD: WHEN I SAY NO, I'M GOING TO, THAT THAT'S NOT THE ENTIRE ANSWER I WANT
TO REFER BACK TO WHAT, THE ANSWER I GAVE TO JUST CHIEF JUSTICE RABNER'S
QUESTION. YES WE ARE ADAMANT THAT 3:13 APPLIES BUT EVEN IF IT DOESN'T, THERE IS
A MECHANISM DISCUSSING CASE LAW FOR COMPELLING DISCOVERY OUTSIDE OF 3:13.
AND HE'S ALSO ENTITLED TO THAT. JUSTICE SOLOMON: BUT YOU HAVE ALREADY
AGREED THAT YOU DON'T HAVE ANY INFORMATION TO MAKE A FRANKS THRESHOLD SHOWING
WITHOUT THIS ADDITIONAL THE DISCOVERY IN RELIANCE ON 3:13-3 THAT YOU SAY YOU ARE
ENTITLED TO. ISN'T THAT CORRECT? ALICIA J. HUBBARD: IF I
COULD RESTATE THAT. WHAT WE HAVE SAID IS THAT HE -- WE WOULD AGREE THAT
THERE IS NOT A THRESHOLD SHOWING TO GET A FRANKS HEARING WITHOUT DISCOVERY THAT
COULD BE PROVIDED EITHER UNDER 3:13 WHICH WE BELIEVE HE'S ENTITLED TO OR OVEN
THIS OTHER MECHANISM UNDER THE CASE LAW OUTSIDE OF 3:13. IS THAT CLEAR.
JUSTICE SOLOMON: NO I GET IT. I GET IT. I THINK I GET IT.
YES I GET IT. JUSTICE LA VECCHIA: MS. HUBBARD THE TIMING OF
WHAT HAPPENED HERE IS A LITTLE BIT PERPLEXING IT'S DIFFERENT THAN BROOM-SMITH YOU
OR YOUR OFFICE WERE ENGAGED IN MAKING REQUESTS OF THE STATE FOR PRETRIAL
DISCOVERY THE STATE WAS RESPONDING THAT THERE WAS SOME HEAVY REDACTION THAT WAS
NECESSARY. AND BEFORE THE STATE COMPLIED WITH THE TURNOVERS THAT HAD BEEN
DISCUSSED BETWEEN THE PARTIES, THE DEFENSE MOVED TO SUPPRESS THE RESULTS OF THE
SEARCH. CORRECT? AND IT'S ALMOST SIX MONTHS LATER FINALLY BROUGHT THE MOTION
TO COMPEL THE DISCOVERY THAT HAS STILL NOT BEEN FORTHCOMING. SO HOW, IF
ANYTHING, WOULD THIS HAD BEEN DIFFERENT OR MORE LIKE BROOM-SMITH PERHAPS IF THE
MOTION TO COMPEL HAD EITHER PRECEDED THE FILING OF THE MOTION TO SUPPRESS
UNDER FRANKS, UP TO, WHERE YOU ASK FOR THE FRANKS HEARING, OR AT LEAST WAS MORE
TEMPORALLY APPROXIMATE TO IT SO THAT THESE TWO ISSUES WHICH CLEARLY ARE
TIED WOULD HAD BEEN MORE READILY A PARENT TO THE COURT. ALICIA J.
HUBBARD: THE COURT WAS AWARE OF IT THERE WAS A DISCUSSION AT THE FRANKS HEARING
ABOUT THE DISCOVERY. AND ABOUT THE FACT THAT THAT MOTION WOULD BE HEARD
LATER. THERE WAS A DISCUSSION AT THAT TIME. SO IT WASN'T THAT THEY WERE NOT AWARE
OF THE OUTSTANDING DISCOVERY. THERE HAD BEEN VIGOROUS CONVERSATIONS. THAT'S
MY UNDERSTANDING, ABOUT THE REFUSAL OR RELUCTANT ANSWER TO PROVIDE DISCOVERY.
THAT BEING SAID, TO BE QUITE FRANK I KNOW THAT ONE OF THE CONCERNS OF THE STATE
HAS enunciated GIVEN THE TYPE OF DISCOVERY WILL SLOW THINGS DOWN BUT IN THIS CASE
HAD THE DISCOVERY BEEN PROVIDED IT WOULD HAVE FOFED HAD JUDICIAL ECONOMY
IT MAY HAVE BEEN A RECEIPT OF THE DISCOVERY A DECISION MAY HAVE BEEN MADE NOT
THE TO PROCEED WITH FRANKS MOTION OR FILE IT IN THE FIRST PLACE. THAT'S
A POSSIBILITY. I DON'T KNOW WHAT THAT DISCOVERY SHOWS. SO THAT MAY HAVE AFFECTED
HOW. JUSTICE LA VECCHIA: BUT AT LEAST WE WOULD HAVE HAD A RULING
ON THE DISCOVERY DISPUTE BETWEEN THE PARTIES THAT WOULD HAVE BEEN CLEARLY RESOLVED
AT THE TIME THE REQUEST FOR THE FRANKS HEARING WAS BEING WRAPPED INTO THE
DISCUSSION ABOUT SUPPRESSION OF THE SEARCH RESULTS. CORRECT. THE ATTORNEY:
Q ALICIA J. HUBBARD: YES. JUSTICE LA VECCHIA:
AND THAT IS A POINT I KNOW YOUR COLLEAGUE FROM THE ACT WILL YOU IS MAKING IN
THIS MATTER BUT I WANTED TO HEAR YOUR VIEW ON THE IMPORTANCE OF THAT. NOW UNFORTUNATELY
IN PART THE DEFENSE DELAY IN BRINGING THE MOTION HAS CONTRIBUTED TO THIS
DILEMMA THAT WE'RE IN NOW. BUT YOU ARE ASKING US TO CONSIDER THEM ALL WRAPPED
TOGETHER. CORRECT? ALICIA J. HUBBARD: I AM. AND LET ME JUST SAY
I'VE BEEN IN OUR APPELLATE FOR SOME TIME BUT I WAS A TRIAL ATTORNEY FOR THE BETTER
PART OF A DECADE IF OUR TRIAL BRIEFING AND QUITE FRANKLY, BECAUSE WE KNOW THAT
THERE WERE DISCUSSIONS ABOUT DISCOVERY AND THAT'S TALKED ABOUT ON THE RECORD,
WHAT THE COURT RULED AND WHAT QUITE FRANKLY OUR COURTS DEPENDENT UPON OR POSING
COUNSEL BEING ADVERSARIES BUT BEING PROFESSIONAL ADVERSARIES AND NO
NORMALLY WE AREN'T FORCED TO FILE THESE MOTIONS TO COMPEL DISCOVERY. THAT IS A
LAST RESORT. I WANT TO BE CLEAR DEFENSE COUNSEL IS NOT OFFICIALLY FILING
THE MOTION. BUT INSTEAD TRYING TO WORK TO GET IT IN OTHER MEANS TO WORK OUT THINGS
WITH THE PROSECUTOR, WITH WAS IN THE AN INDICATION THEY DIDN'T WANT IT THEY
WERE VERY CLEAR ON THE RECORD AND WITH THE COURT. IT WAS MOST LIKELY AN INDICATION
THEY BELIEVED THAT PROFESSIONALLY THESE ADVERSARIES WOULD BE ABLE TO WORK
IT OUT UNFORTUNATELY THAT DIDN'T OCCUR. ALSO JUST WHEN YOU SAID HOW ELSE WOULD
IT HAVE AFFECTED THINGS IF THEY HAD BEEN HEARD TOGETHER I THINK IT'S ALSO
VERY INTERESTING THAT WHEN WE FINALLY GET TO THE DISCOVERY MOTION THE SECOND MOTION
JUDGE WHO'S A DIFFERENT JUDGE, DENIES THE MOTION IN PART BECAUSE.
JUSTICE LA VECCHIA: THE FRANKS WAS ALREADY DECIDED. ALICIA J.
HUBBARD: SO I MEAN IT'S A DIFFICULT SITUATION WHERE ONE COULD NEVER WIN YOU
COULDN'T WIN THE FIGHT BECAUSE YOU DIDN'T HAVE THE DISCOVERY YOU COULDN'T WITHIN
THE STKOI MOTION BECAUSE THE FRANKS WAS DENIED AND THIS CAVED A REAL PROBLEM.
JUSTICE LA VECCHIA: WELL, WE'RE PART OF THE REASON WE'RE ASKING
THIS QUESTION IS BECAUSE OF YOUR EMPHASIS AT LEAST WHEN YOU STARTED YOUR ARGUMENT
THAT YOU ARE ENTITLED TO MUCH OF THIS DISCOVERY THAT YOU'VE BEEN ASKED ABOUT
IN DETAIL PURELY UNDER 3:13. REGARDLESS OF WHAT YOU WERE GOING TO DO WITH IT PERHAPS
USE IT FOR A FRANKS HEARING OR NOT IN CONNECTION WITH OTHER ASPECTS OF THE
DEFENSE YOU WERE ENTITLED TO IT THAT'S YOUR POSITION AND IT SHOULDN'T BE NARROWLY
VIEWED AS AN ENTITLEMENT DEPENDENT UPON UPON THE FRANKS HEARING THAT WOULD
HAVE BEEN MORE CLEAR HAD THE MOTION FWIENLED IMPOSE THE MOTION TO SUPPRESS OR AT
THE SAME TIME. FILED. JONATHAN RICHES: CHIEF
JUSTICE RABNER: TWO QUICK QUESTIONS. ONE AS RELATES TO TIMING TO AVOID SITUATIONS
LIKE THIS IN FUTURE WOULD IT MAKE SENSE TO EXPECT THAT THE MOTION FOR DISCOVERY
WOULD BE APPROXIMATELY AROUND AT THE SAME TIME AS THE MOTION FOR THE FRANKS HEARING?
ALICIA J. HUBBARD: I THINK IT WOULD MAKE THINGS EASIER. AGAIN
I GO BACK TO THE FACTS THAT IN THE TRIAL COURT THERE OFTEN ARE NOT LEGAL MOTIONS
FOR DISCOVERY THERE ARE REQUESTS LETTERS ORDERS FROM JUDGES WITHOUT A MOTION
AND IT WAS REALLY CLEAR IN THIS CASE BECAUSE WE ONLY KNOW THIS BECAUSE OF THE
DISCUSSION IN THE TRANSCRIPT, THAT EVERYONE WAS ON NOTICE OF WHAT THE DEFENSE
WANTED. JUST HAD NOT BEEN A FORMAL FILING OF NOTICE OF MOTION IN FACT THE DECIDING
THE FIRST MOTION JUDGE SAID THAT WILL BE HANDLE THE AT A DIFFERENT TIME SO
IT'S NOT NO ONE WASN'T ON SOME SORT OF NOTICE. CHIEF JUSTICE RABNER:
UNDERSTOOD. AND. ALICIA J. HUBBARD: GO AHEAD. CHIEF
JUSTICE RABNER: AND SECOND MS. HUBBARD, BASED ON YOUR EXPERIENCE IN THE TRIAL COURT,
THIS IS HARDLY A NOVEL FACT PATTERN WHERE YOU HAVE A CONTROLLED BUY THAT RESULTS
IN A SEARCH WARRANT HAVE YOU BEEN RECEIVING LAB REPORTS FOR THE CONTROLLED BUY?
ALICIA J. HUBBARD: SO I HAVE TO GO BACK FOR A WHILE AND I CANNOT
-- I THOUGHT YOU WERE GOING TO ASK ME A DIFFERENT QUESTION ABOUT HOW MANY CASES
DID I ASK FOR A FRANKS HEARINGS IN. THAT I HAVE A READY ANSWER FOR YOU
FOR. I CANNOT RECALL -- I CAN'T, TRY TO JUST AGGREGATE THE NUMBER OF LABS THAT
CAME FROM CONTROLLED BUYS THAT WEREN'T CHARGED VERSUS CONTROLLED BUYS THAT
WERE CHARGED. I DO BELIEVE I RECEIVED THEM IN THE PAST BUT I WOULD NOT FEEL COMFORTABLE
TELLING THE COURT THIS WAS A REGULAR PRACTICE OR WASN'T A REGULAR PRACTICE.
CHIEF JUSTICE RABNER: THANK YOU. JUSTICE ALBIN:
I JUST WANT TO BE CLEAR. THE DEFENSE COUNSEL DID STATE DURING THE FRANKS HEARING
THAT HE HAD NOT RECEIVED A RESPONSE TO HIS REQUEST FOR DISCOVERY AND IN
PARTICULAR, HE MENTIONED A COPY OF THE LAB REPORT. AM I CORRECT ABOUT THAT?
ALICIA J. HUBBARD: YES. AND MY UNDERSTANDING IS THAT THERE WERE
I BELIEVE THE RECORD IT REFERENCES LETTERS THAT MAY ALSO BEEN SENT SO THERE WAS
NO QUESTION THE DEFENDANT ASKED FOR THIS. CHIEF JUSTICE RABNER: ANYTHING
WOULD YOU LIKE THE AD MS. HUBBARD. ALICIA J. HUBBARD: NO, YOUR
HONOR. CHIEF JUSTICE RABNER: THANK YOU. MS. HUERTAS.
ALICIA J. HUBBARD: THAT XM AND MAY IT PLEASE THE COURT. IN OUR BRIEF THE
ACLU OF NEW JERSEY MAKES ARGUES TWO POINTS FIRST THAT IT IS ABUSE OF
DISCRETIONARY WHENEVER A COURT SCHEDULING DECISION COMPROMISES A DEFENDANT ABILITY
TO MOUNT A VIING ALSO DEFENSE AND SECOND THAT NEW JERSEY CAN'T CASE LAW
ESTABLISHES TIME AND AGAIN THAT IT IS POSSIBLE FOR COURTS TO PROTECT A CONFIDENTIAL
INFORMANT'S IDENTITY WITHOUT SACRIFICING A DEFENDANT'S RIGHT TO DISCOVERY AND
THUS A FAIR TRIAL. I'LL DISCUSS EACH OF THESE POINTS IN TURN. SO WE BELIEVE THAT
THE APPELLATE DIVISION WAS RIGHT TO BE CONCERNED BY THE UNUSUAL PROCEDURAL
HISTORY OF THIS CASE. THE TIMING OF THE COURT'S CONSIDERATION OF THE MOTION TO
COMPEL AFTER THE MOTION TO SUPPRESS AS WELL AS THE COURT'S RELIANCE ON THE
DECISION REGARDING THE MOTION TO SUPPRESS WHEN DECIDING THE EMGS MOTION THE COMPEL
UNDULY PREJUDICES THE DEFENDANT HERE WHILE IT'S TRUE THAT COURTS HAVE AN INHERENT
AND NECESSARY RIGHT TO CONTROL THEIR CALENDARS THAT RIGHT IS NOT WITHOUT LIMITATIONS.
A TRIAL COURT BROAD DISDISCRETIONARY MUST NEVER SUBVERT A DEFENDANT'S ABILITY
TO OBTAIN DISCOVERY OUR POSITION IS SIMPLE IF THE SCHEDULING DECISION COMPROMISES
A DEFENDANTS OPPORTUNITY TO INCIDENT HIMSELF THE COURT HAS ABUSED IT'S
DISCRETIONARY BY ESSENTIALLY MAKING IT THE PROCESS DICK IT'S A THE RESULTS THIS IS NOT
CONTROVERSIAL INDEED, THE STATE CONCEDE THIS POINT AND IT'S RYE APPLY TO
OUR BRIEF BUT SAYS IT IS OF NO MOMENT HERE WE DISAGREE WHILE IT'S POSSIBLE THE
ULTIMATE RESULT IN THIS CASE MAY HAVE BEEN THE SAME, THAT DOES NOT RESOLVE THE
QUESTION OF WHETHER THE PROCESS PREJUDICED THE DEFENDANT LIKELIHOOD OF SUCCESS
ON THE MOTION TO COMPEL DISCOVERY AND THAT KEY ISSUE HERE THIS COURT HAS
PREVIOUSLY EXPRESSED THE SOUND ADMINISTRATION OF CRIMINAL JUSTICE IN OUR DEMOCRACY
REQUIRES THAT BOTH THE END AND THE MEANS BE JUST. WE HAVE SEEN THIS PRINCIPLE
PLAY OUT MANY TIMES IN THE RIGHT TO COUNSEL CONTEXT IN BOTH OUR FEDERAL AND STATE
JURIS PRUDENCE IN STATE V. INDICATES FOR EXAMPLE, THE APPELLATE DIVISION
RECOGNIZED AND THIS COURT AFFIRMED THE TRIAL COURT MUST STRIKE A BALANCE BETWEEN
IT'S RIGHT TO CONTROL IT'S CALENDAR AND THE PUBLIC INTEREST IN THE ORDERLY
ADMINISTRATION OF JUSTICE ON THE ONE HAND, AND THE DEFENDANTS CONSTITUTIONAL RIGHT
TO OBTAIN COUNSEL OF HIS OWN CHOICE ON THE OTHER. AND JUST AS COURTS CANNOT
ALLOW CALENDERING DECISIONS TO UNDERMINED THE DEFENDANT RIGHT TO COUNSEL NEITHER
CAN THOUGH SO IN THE CONTEXT OF DISCOVERY WHICH IS JUST AS CRUCIAL TO A DEFENDANT'S
ABILITY TO DEFEND THEMSELVES AND THE SAME GENERAL BALANCING PRINCIPLES SHOULD BE
APPLIED TO ALL INSTANCES THAT NECESSITATE THE COURT TO MAKE CLARLING DECISIONS
IMPACTING A DEFENDANT'S CONSTITUTIONAL RIGHTS. JUST VR JUSTICE REQUIRES
THAT THE RIGHT TO FULL AND FAIR DISCOVERY MUST PREVAIL IN MOST CASES BECAUSE IT
IS CRUCIAL FOR A DEFENDANT TO UNDERSTAND THE CONTOURS OF THE STATE'S CASE
BEFORE PROCEEDING WITH AN EVIDENTIARY HEARING. THE TIME-LINE OF THE TRIAL COURT
HANDLING OF THE TWO MOTIONS HERE, THE MOTION TO SUPPRESS AND THEN THE MOTION
TO COMPEL, ULTIMATELY DICTATED THE RESULTS OF BOTH THUS PREVENTING THE DEFENDANT
FROM SEEKING APPELLATE REVIEW ON THE ISSUE. DISCOVERY PROVIDED AFTER A
SUBSTANTIVE ISSUE HAS BEEN LITIGATED SIMPLY SERVE NO SUCCESS. CHIEF
JUSTICE RABNER: END THE CRITICISM THAT YOU ARE VOICING IN TERMS OF THE PROCESS
HERE I'M NOT SURE ENTIRELY FALLS ON THE TRIAL COURT BECAUSE IT TOOK DEFENDANT
AS JUSTICE LA VECCHIA POINTED OUT FIVE MONTHS TO FILE THE DISCOVERY MOTION.
SHOULDN'T DEFENDANTS ATTEMPT TO PRESENT THE ISSUE IN AN ORDERLY FASHION SO
THAT THE COURT CAN TREAT THEM IN THE PRECISELY THE WAY YOU ARE ASKING?
ELYLA HUERTAS: OUR RULES CONTINGENT UPON PROMPTNESS AND WE DO BELIEVE THE
DEFENDANT ACTED PROMPTLY HERE THEY MADE THE REQUEST BEFORE THE MOTION TO
SUPPRESS HEARING AND BEFORE THE FRANKS HEARING AND BECAUSE THE REQUESTS WERE DONE
BEFOREHAND, IT WAS -- CHIEF JUSTICE RABNER: DO YOU THINK IT'S A
GOOD PRACTICE TO WAIT FIVE MONTHS AFTER MOVING FOR FRANKS HEARING RECOLLECTION TO
MOVE FOR DISCOVERY? ELYLA HUERTAS: THE REQUEST SHOULD BE MADE
AS SOON AS POSSIBLE AND WE I DON'T HAVE ALL THE FACTS BUT IN THE RECORD IT DOES
SEEM LIKE THE DEFENDANT WAS ATTEMPTING TO GET THIS DISCOVERY IN ADVANCE THAT QUITE
A WHILE THE MOTION TO COMPEL WAS NOT MADE UNTIL LATER IT WAS STILL MADE BEFORE
THE MASSACHUSETTS MOTION TO SUPPRESS AND BEFORE THE FRANKS HEARING. WE AGREE THAT
DEFENDANTS SHOULD BE DOING IT AS SOON AS POSSIBLE IT WAS STILL DONE IN A
PROMPT MANNER. SO EACH STEP OF THE TRIAL PROCESS MUST BE MEANINGFUL AND HERE THE
MOTION THE HEARINGS AND THE MOTION TO COMPEL DISCOVERY WAS A HEARING IN
NAME ONLY THERE WAS NO ACTUAL SIGNIFICANCE IN THE RESULTS. I'LL BRIEFLY TURN TO
OUR SECOND POINT REGARDING THE SAFETY OF CONFIDENTIAL INFORMANT.
JUSTICE SOLOMON: BEFORE YOU LEAVE THE FIRST POINT. DO YOU AGREE OR DISAGREE THE
STANDARD OBTAINING DISCOVERY UNDER 333133 DETERMINES WHETHER THE INFORMATION
SOUGHT TO SUPPORT ENTITLEMENT TO FRANKS HEARING IS THE STANDARD IT'S A 3:13-3
STANDARD, SEPARATE AND APART FOR THE REQUEST FOR A FRANKS.
ELYLA HUERTAS: WE BELIEVE THAT THE DEFENDANT IS ENTITLED TO ALL DISCOVERY THAT
ALLOWS THEM TO MOUNT A VIGOROUS DEFENSE. JUSTICE SOLOMON: UNDER
3:13-3? YES? ELYLA HUERTAS: YES, YOUR HONOR. JUSTICE
SOLOMON: AND THAT THAT STANDARD SHOULD HAVE BEEN APPLIED BEFORE THE FRANKS HEARING
WAS DENIED. AND HAD THAT BEEN APPLIED, FOLLOWERS WOULD HAVE BEEN COMPELLED
TO BE DISCLOSED THAT WOULD HAVE THEN ENTITLED DEFENDANT TO A FRANKS HEARING? IS
THAT YOUR ARGUMENT JOA. ELYLA HUERTAS: WE ARGUE THE PROCESS
CAN NOT DICTATE THE RESULT. CHIEF JUSTICE RABNER:
JUSTICE SOLOMON: I GET THAT BUT HAD THEY DECIDED THE MOTION TO COMPEL UNDER 3:13-3,
THAT WOULD HAVE REVEALED INFORMATION THAT THEN LED TO DEFENDANT'S ENTITLEMENT
TO A FRANKS HEARING. IS THAT THE ARGUMENT? 82 WE TAKE NO POSITION AS TO THE ULTIMATE
RESULT HERE. BUT. JUSTICE SOLOMON: I'M NOT ARGUING RESULT
I'M JUST SAYING IS THAT YOUR ARGUMENT I'M NOT SAYING HOW THE THE COURT WOULD
HAVE DECIDED IT. IS THAT YOUR ARGUMENT, 3:13-3 SEARCH WARRANT HADN'T BEEN APPLIED,
TO THE MOTION TO COMPEL DISCOVERY DEFENDANT WOULD HAVE GOTTEN
INFORMATION THAT COULD HAVE THEN ENABLED HIM TO MAKE HIS THRESHOLD SHOWING TO GET
HIM A FRANKS HEARING IS THAT THE ARGUMENT. ELYLA HUERTAS: YES.
JUSTICE SOLOMON: THAT IS THE ARGUMENT SO WE SHOULD BE APPLYING
THE 3:13 STANDARD AS SHOULD HAVE THE TRIAL COURT BEFORE IT SUMMARILY DISMISSED
THE FRANKS REQUEST. ELYLA HUERTAS: CORRECT.
JUSTICE SOLOMON: OKAY JUST TRYING TO GET CLEAR. ELYLA HUERTAS:
THANK YOU, YOUR HONOR NOW I WILL BRIEF VERY BRIEFLY TURN TO OUR SECOND POINT
REGARDING THE SAFETY OF CONFIDENTIAL INFORMANTS SO TO THE EXTENT THAT THE TRIAL COURT
FELT COMPELLED TO LIMIT DISCOVERY TO PROTECT THE CONFIDENTIAL INFORMANT IN THIS
MATTER IT WAS MISGUIDED WHEN IT SIMPLY DENIED THE DEFENDANT REQUEST WITHOUT
ATTEMPTING TO FIND OTHER WAYS THE ALLOW HIM OR HIS LAWYER ACCESS TO DISCOVERY WITHOUT
COMPROMISING THE CONFIDENTIAL INFORMANT'S IDENTITY. THIS IS ESPECIALLY
TRUE WHEN IT COMES TO THE LAB REPORTS. THIS COURT HAS FREQUENTLY DEALT WITH THE
ISSUE OF BALANCING INTEREST OF WITNESSES AND VICTIMS AGAINST THE DEFENDANT
RIGHT TO A FAIR TRIAL AND EVEN IN MORE COMPLICATED OR SENSITIVE CASES AS CASE
INVOLVING DISCOVERY INVOLVING ADOLESCENT VICTIMS AND OUR COURTS KEPT SOUND
WAYS IN ALL OF THOSE CONTEXT TO AVOID COMP MAOYLING THE DEFENDANT RIGHT TO A FAIR
TRIAL WHILE STILL PREBLING GO THE INTERESTS OF ALL INVOLVED. THE SAME
SHOULD HAVE HAPPENED HERE. AND LASTLY AND BRIEFLY TO THE STOLEN THAT THE STATE
IS WORRIED THAT THE RULE BEING PROPOSED WOULD RESULT IN EVERY DEFENDANT MAKING
BROAD DEMAND FOR DISCOVERY WITH REDACTION AND IN CAMERA PROCEEDINGS YES IT CAN
BES AND IN CAMERA REVIEW, WE WOULD SIMPLY LIKE TO REMIND THE COURT THAT THE WAY
OUR GRADUATED PLEA STRUCTURE IS SET UP, IT WOULD LIKELY SPREN THIS RESULT. JUST
AS IT DOES IN OTHER ASPECTS OF TRIAL PRESO UNLESS THERE'S ANY QUESTIONS I'LL END
BY SAYING THAT WE URGE THE COURT AFFIRM THE PLAINTIFFS DECISION BELOW AND
REMAND THIS MATTER BACK TO THE TRIAL COURT. CHIEF JUSTICE
RABNER: THANK YOU MS. HUERTAS MR. YOMTOV REBUTTAL AND I HOPE AS PART OF YOUR
REBUTTAL YOU CAN ANSWER THIS QUESTION IT'S A STRAIGHT 3:13 QUESTION. HAS IT BEEN
UNIFORM PRACTICE FOR PROSECUTOR'S OFFICE NOT TO DISCLOSE A LAB REPORT IN A CASE
LIKE THIS WHERE YOU HAVE A SIGH BUY THAT DOES NOT RESULT IN CHARGES?
STEVEN A. YOMTOV: IN ANSWER TO YOUR, THAT PARTICULAR QUESTION, IT'S MY I DON'T KNOW,
AND THIS IS JUST ANECDOTAL BASED ON CONVERSATIONS THAT I'VE HAD WITH OTHER
PROSECUTOR'S OFFICES, NOT ALL OF THEM, NOT ALL 21 BUT IT'S OUR UNDERSTANDING THAT
TYPICALLY THE LAB REPORTS ARE NOT TURNED OVER. I JUST WANT TO BRIEFLY MAKE
TWO REMARKS AND BOTH TIED TO THE SAFETY OF THE CONFIDENTIAL INFORMANT THAT MS. HUERTAS
JUST REFERRED TO. I ALSO WANT TO COMMENT ON MS. HUSBAND'S REMARKS WITH RESPECT
TO THE SPECIFIC DISCOVERY. YOU KNOW, THE PROBLEM IS, IS THAT MUCH OF WHAT THEY'RE
CHALLENGING ARE THESE HYPER-TECHNICAL, POINTING OUT HYPER TECHNICAL
DEFICIENCIES SUCH AS THE PHONE NUMBER THAT THE PHONES WERE USED BY SEVERAL PEOPLE.
AND YOU KNOW, AS POINTED OUT, AGAIN THESE ARE JUST MINOR DETAILS THAT ARE
BEING, THAT ARE BEING PICKED AND THAT'S THE PROBLEM JUSTICE SOLOMON POINTED OUT
WITH MINUTIA THAT A SMALL BIT, IT DOESN'T TAKE MUCH, A SMALL PARTICULAR
OF INFORMATION TO A SAVVY DRUG DEALER, CAN REVEAL MUCH. WHAT COULD APPEAR TO BE
INNOCUOUS TO A JUDGE OR EVEN TO A MR., WHEN THEY ARE REDACTING, MIGHT BE
VERY REVEALING TO A DRUG DEALER AND THAT'S WHAT WE'RE CONCERNED ABOUT. DON'T WANT
TO SEE YOU KNOW, THE GENERAL APPLICATION OF THREE TLIERN TO THESE WARN BASED
CHALLENGES THAT FRANKS AND A PRESUMPTION OF VALIDITY OF WARRANTS AFFIDAVITS EXIST
FOR A REASON. THAT IT'S A LIMIT LIMITED INQUIRY AND IF WE JUST ALLOW 3:13 TO
GOVERN IT WILL DESCENT ADVISE THE POLICE IF GETTING WARRANTS.
JUSTICE ALBIN: MR. YOMTOV I HAVE ONE QUESTION DO YOU AGREE WITH MR. GALDIERI THAT
IF THE AFFIANT AVERS AN AFFIDAVIT THAT HE SUBMITTED DRUGS TO A LAB AND IT
CAME BACK TESTING FOR EXAMPLE, MOLLY, AND THE PROSECUTOR HAS THE ACTUAL LAB REPORT
THAT INDICATES THAT IT DIDN'T COME BACK AS MOLLY, IT CAME BACK AS FOR INSTANCE
FLOUR, THAT THE PROSECUTOR WOULD HAVE NO OBLIGATION TO TURN OVER THAT REPORT TO
THE DEFENSE? STEVEN A. YOMTOV: I BELIEVE YOU ALSO, AND YOU
ASKED THAT QUESTION IN IN CONTEXT OF AN ETHICAL OBLIGATION AND I BELIEVE HE TIED
THAT TO BRADY. I WOULD AGREE THAT YOU KNOW IT WOULD HAVE TO BE SOME SORT OF
REAL EXCULPATORY INFORMATION. JUSTICE ALBIN: I'VE GIVEN YOU TO LOOK
I'VE GIVEN YOU AN EXAMPLE. I GAVE YOU THE HYPOTHETICAL. TRY TO ANSWER
THE HYPOTHETICAL I GAVE YOU. IT PRETTY MUCH TRACKS THE FACTS IN THIS CASE. WOULD
THERE BE AN, IN THIS PARTICULAR CASE, IF THE LAB REPORT IN FACT CAME BACK
AS FLOUR AND IT'S IN THE PROSECUTOR'S FILE, WOULD THE PROSECUTOR HAVE AN OBLIGATION
TO TURN THAT OVER TO THE DEFENSE? SIMPLE QUESTION. STEVEN A.
YOMTOV: I'LL ANSWER THAT IN CONTEXT SOLELY OF FRANKS, THAT AND THIS IS IN THE
CONTEXT ALSO OF GENERAL THAT WARRANT LAW AND THAT IS MISTAKES DO MAKE THEIR
WAY INTO WARRANT AFFIDAVITS. AND JUST BECAUSE YOU HAVE A MISTAKE OR SOME SORT
OF INCONSISTENCY, THAT DOES NOT NECESSARILY MEAN IT'S A FALSEHOOD IT
DOESN'T EVEN MEAN IT'S INTENTIONAL. JUSTICE ALBIN: I ASKED YOU A SIMPLE
QUESTION. STEVEN A. YOMTOV: OKAY. JUSTICE
ALBIN: I UNDERSTAND WHAT YOU ARE SAYING. THE QUESTION IS WOULD YOU HAVE AN OBLIGATION
TO TURN IT OVER YES OR NO. STEVEN A. YOMTOV: NO UNDER FRANKS,
NO. JUSTICE PIERRE-LOUIS: SO IN A CASE LIKE THIS ONE OF THE
FIRST THINGS YOU SAID MR. YOMTOV, WAS THAT AVENUE VORACITY IN TRUTH FOR AFFIDAVIT
IS WHAT IS AT ISSUE HERE THAT'S ONE OF THE THINGS YOU SAID SO IN A CASE
LIKE THIS, THE DEFENDANT IS SEEKING A FRANKS HEARING BECAUSE HE IS LOOKING TO CHALLENGE
WHAT SUBSTANCE WAS ACTUALLY ATTAINED AND SUBMITTED TO OR WHAT WAS SUBMITTED
TO THE LAB. AND WE HAVE, THE STATE HAS A LAB REPORT THAT SHOWS THAT IT WAS NOT
MOLLY. AND THIS DEFENDANT IS SEEKING A FRANKS HEARING REALLY BASED OFF,
BASED ON THAT ISSUE. AND YOU DON'T THINK THAT THAT IS A SITUATION WHICH THE STATE
WOULD HAVE TO TURN THAT OVER? STEVEN A. YOMTOV: WELL FIRST OF ALL
YOUR HONOR, FIRST HE HASN'T MET HIS STANDARD UNDER FRANKS AND THAT IS, AND
EVEN UNDER THIS LUT BIGGERER CASE YOU CAN'T JUST BE SOME SORT OF CONCLUSORY BARE
ASSERTION AND THIS WAS ACTUALLY MADE BY COUNSEL NOT DEFENDANT HIMSELF.
SO THAT ISSUE HE'S NOT ENTITLED TO IT. IN TERMS OF YOUR QUESTION AND JUSTICE ALBIN'S
QUESTION, YOU KNOW, DOES THIS DISCREPANCY YOUR HONOR IMPART AN OBLIGATION
ON THE PART OF THE PROSECUTOR TO TURN OVER THE LAB REPORT, I STILL AM GOING TO
ANSWER THAT IT'S NO UNDER THE FRANKS STANDARD BECAUSE IT'S NOT MATERIAL,
IT'S NOT A MATERIAL ELEMENT TOWARD PROBABLE CAUSE. JUSTICE SOLOMON:
YOU AGREE. JUSTICE PIERRE-LOUIS: I'M SORRY.
JUSTICE SOLOMON: GO AHEAD. JUSTICE PIERRE-LOUIS: I'M SORRY. SO
YOU'RE SAYING IT'S A DISCREPANCY. BUT WE HAVE AN AFFIDAVIT THAT HE TESTED POSITIVE
FOR MOLLY WE HAVE A LAB REPORT THAT SAYS IT'S NOT MOLLY. DOESN'T THAT GO TO
THE VORACITY OF THE TRUTHFULNESS OF THE STATEMENT IN THE AFFIDAVIT? WE DON'T KNOW
IF IT'S DISCREPANCY OR A MISTAKE. WE DON'T KNOW THAT YET. WE HAVE A LAB REPORT
AND WE HAVE THE AFFIDAVIT. DON'T YOU THINK THE PROSECUTOR SHOULD BE TURNING
THAT OVER? BEYOND WHY I STILL DON'T UNDERSTAND WHY THAT WOULDN'T BE TURNED
OVER. STEVEN A. YOMTOV: BECAUSE LIKE WE EARLIER SAID IT COULD
BE FLOUR AND THAT IT DOESN'T GO TOWARDS THE MATERIAL FINDING OF PROBABLE CAUSE.
THERE WAS STILL AN ILLEGAL TRANSACTION THAT WAS. JUSTICE ALBIN:
THAT'S A DECISION THE COURT MAKES YOU ARE TELLING THE COURT NOW THAT AN ACTUAL
FALSEHOOD IN THE AFFIDAVIT WOULD NOT MEET THE PRELIMINARY SHOWING. IT'S
A JUDGE WHO ULTIMATELY DECIDE WHETHER OR NOT IT WAS INADVERTENT DISCREPANCY OR
WHETHER OR NOT IT WAS A DELIBERATE FALSEHOOD. THAT'S AN ISSUE FOR THE
JUDGE. AFTER HE TAKES TESTIMONY. AM I MISTAKEN ABOUT THAT?
STEVEN A. YOMTOV: AS I SAID EARLIER IN MY PRIOR, IF THE RESULTS WERE PRESENTED
TO THE AVENUE, HE WOULD HAVE TO PUT IN THAT IT CAME BACK AS FLOUR. NO DOUBT.
BUT I'M JUST TRYING THAT THERE'S NO OBLIGATION TO TURN OVER THE LAB REPORT ITSELF:
CHIEF JUSTICE RABNER: MAY I JUMP IN. JUSTICE SOLOMON:
PLEASE GO AHEAD. CHIEF JUSTICE RABNER: MR. YES, MA'AM I WANT
TO ASK THIS QUESTION VERY CAREFULLY BECAUSE I'M NOT ASKING YOU TO GIVE UP THE PRINCIPLE
YOU'VE BEEN ASKED A HYPOTHETICAL AND YOUR ANSWER IS UNSETTLING TO A NUMBER OF
US. THAT YOU HAVE A STATEMENT IN THE AFFIDAVIT THAT SAYS THE LAB RESULTS SHOW
THAT THIS IS A CONTROLLED DANGEROUS SUBSTANCE. AND YOU'VE BEEN ASKED
HYPOTHETICALLY WHAT IF THE LAB RESULTS SHOW IT WAS FLOUR. WOULD YOU CARE TO ADDRESS
WHETHER THAT HYPOTHETICAL SHOULD BE OF CONCERN TO US IN THIS CASE?
STEVEN A. YOMTOV: IF THE LAB RESULT CAME BACK AND IT WAS FLOUR, AND THE OFFICER
PUT IN THERE THAT IT WAS MOLLY, THAT WOULD BE A FALSEHOOD. IF IT CAME BACK,
OKAY, HE WOULD HAVE TO -- MY POINT IS, IS THAT LIKE A WARRANTS AFFIDAVIT YOU WOULD HAVE
TO PUT IN, I THINK WHAT IT WOULD BE -- IT WOULD ALMOST BE LIKE AN OMISSION
WHERE LET'S SAY THAT THE POLICE OFFICER DID KNOW THAT THE RESULT WAS FLOUR AND
DIDN'T PUT IT IN, UNDER FRANKS, THAT WOULD BE AN ISSUE BECAUSE THAT WOULD BE
AN OMISSION THAT GOES TOWARD, IF THE JUDGE HEARD THAT, THE JUDGE MAY SAY YOU KNOW
WHAT, I WANT TO HEAR FROM THE POLICE OFFICER. AND AT THAT POINT THAT THE
MAGISTRATE WOULD HAVE THE RIGHT TO ASK THE POLICE OFFICER TO TESTIFY. I'M NOT SAYING
THAT A FALSEHOOD SHOULD BE SUPPRESSED. NO. WHAT I'M SAILING IS THAT A
DISCREPANCY MUST BE REVEALED, MUST BE DISCLOSED TO THE MAGISTRATE, LET THE MAGISTRATE
DETERMINE WHETHER THERE IS STILL PROBABLE CAUSE BECAUSE THAT LIKE I JUST SAID
IT GOES TO THE ISSUE OF WHETHER THE, YOU KNOW, IF YOU LEAVE I OUT THEN IT
BECOMES AN ISSUE OF OMISSION FOR THE PURPOSES OF FRANKS. I'M NOT SUGGESTING THAT
THERE SHOULD BE ANY KIND OF COVER UP OR HIDING UNDER THE DESK OR NOT GUILTY
LIKE THAT. IF I GAVE THAT IMPRESSION I APOLOGIZE. THAT I'M TRYING TO GET THE
COURT UNSETTLED. CHIEF JUSTICE RABNER: I'M TRYING TO UNDERSTAND
WHETHER IN THIS CASE THE HYPOTHETICAL IS REAL WITHOUT COMPELLING YOU TO GIVE THE
ANSWER. STEVEN A. YOMTOV: I HAVEN'T SEEN THE LAB REPORT.
IN ALL CANNEDNESS I USED THE UNION COUNTY PROSECUTOR'S OFFICE CAN YOU GIVE ME THE
LAB REPORT AND THEY SAID NO. I COULDN'T EVEN GET IT. THAT SO THEY ARE
VERY PROTECTIVE OF THEIR CONFIDENTIAL INFORMANTS. THAT. JUSTICE
ALBIN: THEY DON'T EVEN TRUST YOU WITH THE LAB REPORT AFTER REDACTIONS.
STEVEN A. YOMTOV: NO THEY DON'T TRUST ME THEY GAVE ME A SAMPLE THAT WAS ALL THEY
GAVE ME. JUSTICE SOLOMON: IS YOUR ANSWER. STEVEN A.
YOMTOV: I CAN'T THAT TELL YOU RIGHT NOW WHAT THE RESULT OF THAT, WHETHER IT WAS
MOLLY OR NOT. ALL I CAN RELY ON LIKE YOU IS WHAT WAS REPRESENTED IN THAT
AFFIDAVIT. JUSTICE LA VECCHIA: I JUST DON'T UNDERSTAND YOUR
LAST QUESTION. JUSTICE SOLOMON: I'M NOT STOPPING UNTIL I GET
THIS ANSWERED IS YOUR ANSWER DEPENDENT UPON WHETHER THE DEFENDANT WAS CHARGED WITH
THE DRUG SALE THAT IS THE SUBJECT OF THE SEARCH WARRANT? IN OTHER WORDS, IF IT
WAS OR WAS NOT MOLLY, POWDER, IS YOUR ARGUMENT THAT THAT'S NOT MATERIAL AND THEREFORE
NOT, DOESN'T ENTITLEMENT HIM TO A FRANKS HEARING BECAUSE HE WAS NEVER CHARGED
WITH THAT OFFENSE? IS THAT WHAT YOU WERE RELYING ON IN PART.
STEVEN A. YOMTOV: YES. JUSTICE SOLOMON: NOW, THAT YOU WERE LOCAL
PROSECUTOR FOR A WHILE WEREN'T YOU ALWAYS AG MAYBE MR. GALDIERI IS THE ONE
TO ASK THE QUESTION OF BUT IN TERMS OF THE ETHICAL OBLIGATION, YOU WOULD CLEARLY
HAVE AN OBLIGATION TO DISCLOSE THE ERROR IF THAT OFFICER WAS GOING TO CORRECT?
STEVEN A. YOMTOV: YES SECOND DARRYL IF THE OFFICER MADE THAT
STATEMENT KNOWING IT WAS FALSE WOULD YOU NOT HAVE AN OBLIGATION TO INVESTIGATE
THAT OFFICER. STEVEN A. YOMTOV: YES. JUSTICE
SOLOMON: THAT COULD POTENTIALLY BE OFFICIAL MISCONDUCT YEARS IF STATE PRISON.
STEVEN A. YOMTOV: ABSOLUTELY YOUR HONOR. JUSTICE
SOLOMON: THOSE ARE SEPARATE AND INDEPENDENT OF OUR ARGUMENT HERE OF YOUR
DISAGREEMENT WITH THE DEFENDANT'S POSITION HERE. IS THAT CORRECT?
STEVEN A. YOMTOV: YES. JUSTICE SOLOMON: I'M DONE.
JUSTICE LA VECCHIA: I HAVE ONE FOLLOWUP QUESTION I THOUGHT I HEARD WHEN YOU CLARIFIED
YOUR ANSWER TO I BELIEVE IT WAS THE CHIEF JUSTICE, THAT THE DISCREPANCY,
THE LAB REPORT IN THE HYPOTHETICAL SITUATION SAID FLOUR AND THE OFFICER'S
AFFIDAVIT HAD SAID MOLLY. THE DISCREPANCY IN THE LAB REPORT WOULD BE DISCLOSED
TO THE COURT IS THAT WHAT I UNDERSTOOD YOU TO SAY? STEVEN A. YOMTOV:
YES IT SHOULD BE DISCLOSED IN THE AFFIDAVIT. JUSTICE LA
VECCHIA: SO A SUBSEQUENT AFFIDAVIT SHOULD BE DISCLOSED? STEVEN A.
YOMTOV: UM, I'M NOT FOLLOWING YOU THERE. NO. JUSTICE LA VECCHIA:
THERE'S ONE AFFIDAVIT. THE AFFIDAVIT SAYS IT'S MOLLY. AND THE LAB REPORT SAYS
IT'S FLOUR. STEVEN A. YOMTOV: CORRECT. JUSTICE
LA VECCHIA: RIGHT? WHAT DISCREPANCY IS REPORTED TO THE COURT AND HOW?
STEVEN A. YOMTOV: THE RESULT WOULD BE DISCLOSED TO, SHOULD BE DISCLOSED TO
THE ISSUING MAGISTRATE. JUSTICE ALBIN: WHY NOT TO THE DEFENSE?
ARE YOU SAYING THAT DOESN'T GO TO THE DEFENSE? HOW WOULD THE DEFENSE MAKE A
PRELIMINARY SHOWING FOR FRANKS PURPOSES? STEVEN A. YOMTOV:
I'M SORRY MAYBE I'M BEING -- THE, THEY GOT THE LAB REPORT BACK BEFORE THEY
SUBMITTED THE AFFIDAVIT. THEY DIDN'T INCLUDE. JUSTICE LA VECCHIA:
YES. CHIEF JUSTICE RABNER: THAT'S WHAT IT SAYS HERE.
STEVEN A. YOMTOV: SO THE OFFICER THAT CAME BACK FLOUR SHOULD SAY YOU KNOW,
SUBMITTED THE SAMPLE TO THE LAB, THE LAB, THE RESULT OF THE TEST WAS THAT IT
CAME BACK NEGATIVE FOR CDS AND THEY COULD SAY FLOUR WHATEVER SUBSTANCE IT WAS AND
THEN THE JUDGE WOULD HAVE TO MAKE THE DETERMINATION, THE MAGISTRATE WITH THE
SEARCH WARRANT WHETHER THERE WAS STILL PROBABLE CAUSE. JUSTICE ALBIN:
WOULD THE DEFENSE. JUSTICE LA VECCHIA: I THINK I JUST CHANGED WHAT
I UNDERSTOOD TO BE THE HYPOTHETICAL QUESTION THAT WAS ASKED OF YOU.
STEVEN A. YOMTOV: I'M SORRY. JUSTICE LA VECCHIA: NO. IT BE MAY BE
I MISUNDERSTOOD I THOUGHT YOU WERE GOING ASKED THE LAB REPORT COMES BACK
THE OFFICER INCLUDES IN THE AFFIDAVIT SUBMITTED TO THE MAGISTRATE THE ERROR IF YOU
WILL, THAT THE LAB REPORTED IT TO BE MOLLY WE KNOW IN THE LAB REPORT IN THE
PROSECUTORS HAND SAYS OTHER BUYS. I BELIEVED YOU SAID THAT THAT DISCREPANCY IN
THE SUBMITTED AFFIDAVIT WOULD BE REPORTED TO THE COURT. STEVEN A.
YOMTOV: YES. JUSTICE LA VECCHIA: BY THE PROSECUTOR'S OFFICE.
HOW WOULD THAT HAPPEN? STEVEN A. YOMTOV: UM, I JUST THINK IT WOULD
BE COMMUNICATED TO THEM. I DON'T THINK IT REQUIRES ANY, UM, YOU KNOW, ANY OTHER
YOU KNOW, WAY TO DO IT. MY JUST IT WOULD BE REPORTED BACK TO THEM ALL AFFIDAVIT
ARE REVIEWED BY PROSECUTOR'S OFFICES ALL SEARCH WARRANT AS MATTER OF AG POLICY
ALL POLICE SEARCH WARRANT AFFIDAVITS HAVE TO BE REVIEWED BY AN A P.
CHIEF JUSTICE RABNER: AND YET YOU CAN'T SEE THE LAB REPORT?
STEVEN A. YOMTOV: I CAN'T SEE IT. PERHAPS THE A P IN THE UNION COUNTY PROSECUTOR'S
OFFICE CAN SEE IT. BUT I WAS NOT ENTITLED TO IT. JUSTICE ALBIN:
SO JUSTICE LA VECCHIA ASKED THE FOLLOWUP QUESTION, AND NOT TO THE DEFENSE? CAN YOU
ANSWER THAT QUESTION? ARE YOU SAYING THAT YOU WOULD COMMUNICATE IT TO THE JUDGE
BUT NOT TO THE DEFENSE? IS THAT WHAT YOU'RE SAYING. STEVEN A.
YOMTOV: WELL IT WOULD BE CONTAINED WITHIN THE FOUR CORNERS OF THE AFFIDAVIT.
JUSTICE ALBIN: LOOK, LISTEN TO MY QUESTION. SO DON'T GET CONFUSED
HERE. THE AFFIDAVIT SAYS MOLLY. THE REPORT SAYS FLOUR. STEVEN
A. YOMTOV: CORRECT. JUSTICE ALBIN: SO WE KNOW THAT THERE'S A
DISCREPANCY BETWEEN THE REPORT AND WHAT WAS AN AVERRED IN THE AFFIDAVIT. DOES THE
DISCREPANCY GET REPORTED TO THE DEFENSE AND THE COURT? STEVEN A.
YOMTOV: IF THE OFFICER KNEW, HAD THE REPORT, HAD SAID FLOUR AND HE PUT IN MOLLY,
YES, IT WOULD BE TURNED OVER TO THE DEFENSE. JUSTICE ALBIN:
THANK YOU. JUSTICE LA VECCHIA: THANK YOU. STEVEN A.
YOMTOV: I DO NOT WANT TO LEAVE THE COURT WITH ANY UNSETTLED YOU KNOW, I HOPE I
ANSWERED YOUR QUESTION SATISFACTORILY. CHIEF JUSTICE RABNER:
I NEED TO FOLLOW UP WITH JUST ONE TO MAKE SURE I UNDERSTAND. STEVEN
A. YOMTOV: OKAY. CHIEF JUSTICE RABNER: NO I THINK I UNDERSTAND.
IF YOU HAD AN AFFIDAVIT IN YOUR HAND THAT YOU HAD REVIEWED IN THIS CASE THAT SAID
FLOUR, YOU'RE TELLING US BELIEVE IT WOULD BE DISCLOSED. STEVEN A.
YOMTOV: YES. CHIEF JUSTICE RABNER: YOU ARE UNABLE TO MAKE THAT
REPRESENTATION TO US FOR REASONS I CAN'T COMPREHEND, ONLY THE LINE PROSECUTOR COULD
SEE THE AFFIDAVIT PERHAPS, BUT NOT THE REPRESENTATIVE OF THE STATE IN FRONT
OF THE THE SUPREME COURT. STEVEN A. YOMTOV: THAT'S, THAT'S THE, YES,
THAT IS WHAT HAS HAPPENED AND I DON'T WANT TO THROW UNION COUNTY UNDER THE
BUS BUT THAT MAPS WE CAN LOOK AT IT ANOTHER WAY THAT THEY ARE VERY, VERY
PROTECTIVE OF THEIR CONFIDENTIAL INFORMANTS AND THAT'S WHAT WAS EXPLAINED
TO ME. CHIEF JUSTICE RABNER: UNDERSTOOD. STEVEN A.
YOMTOV: I APOLOGIZE ON BEHALF OF THE STATE FOR THAT YOU KNOW, IF THAT WAS AN ISSUE.
CHIEF JUSTICE RABNER: NO APOLOGY NEEDED AND I WANT TO THANK
ALL OF THE LAWYERS FOR THE VERY FINE ARGUMENTS TODAY. WE WILL TAKE THE MATTER
UNDER