                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5249-18T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

EVERETT E. MOORE,

     Defendant-Respondent.
__________________________

                    Argued December 9, 2019 – Decided January 13, 2020

                    Before Judges Messano, Ostrer and Susswein.

                    On appeal from an interlocutory order of the Superior
                    Court of New Jersey, Law Division, Gloucester
                    County, Indictment No. 18-07-0598.

                    Margaret A. Cipparrone, Senior Assistant Prosecutor,
                    argued the cause for appellant (Charles A. Fiore,
                    Gloucester County Prosecutor, attorney; Margaret A.
                    Cipparrone, on the brief).

                    Wayne Powell argued the cause for respondent (Wayne
                    Powell LLC, attorneys; Wayne Powell, on the brief).

PER CURIAM
      This case arises from a road-rage incident that culminated in a fatal knife

attack. Defendant, Everette E. Moore, is charged with first-degree murder. The

State appeals from the trial court’s interlocutory order that directed the

prosecutor to recreate the results of a police officer's analysis of stored data.

The officer's search of law enforcement databases identified the vehicle the State

alleges was involved in the road-rage incident and ensuing homicide. The

officer did not save the computer search results. We have considered the

arguments in light of the applicable legal principles and conclude the trial judge

did not abuse her discretion when she ordered the State to recreate the computer

search results that were not preserved. We therefore affirm the trial court’s

discovery order.

                                     I.

      On March 7, 2018, police responded to a 9-1-1 call reporting a man

bleeding from his face. The victim, Joseph Pirri, told police he had been

assaulted with a knife during a road-rage incident. Pirri described his attacker

as a black male in his early forties who was wearing a gray vest and blue jeans.

Pirri also said the attacker was driving a white Ford King Ranch truck with a

cream-colored border around the bottom. Pirri was taken to the hospital and

later succumbed to his wounds.


                                                                          A-5249-18T4
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      The following day, Mantua Township Police Officer Brian Hauss

reviewed surveillance footage of the suspect vehicle. After consulting with

automotive mechanics, Hauss determined the pickup truck depicted in the

surveillance video was a 2010-2014 Ford model F-250 or F-350 based on

specific badges that appeared on the truck and the style of the tailgate and front

end of the vehicle. Hauss then searched the ProPhoenix Records Management

System for 2010-2014 Ford F-250 and F-350 trucks registered in the area. Hauss

narrowed the search to the towns of Deptford, Mantua, Pitman, Glassboro, and

Clayton—the towns along the suspect vehicle's route of travel. The search

produced 100 results. 1 Hauss then manually entered the registrations for those

vehicles in the BOSS Automated License Plate Reader system, which displayed

stored photographs of some of the vehicles identified in the ProPhoenix database

query.

      Officer Hauss's diligence bore fruit. He identified one pickup truck that

matched the description of the vehicle involved in the incident. The truck that

Hauss identified was a 2012 white and tan four-door Ford F-250 with a toolbox

in the rear bed. That vehicle was registered to Donna Moore, who resided in



1
  The record is not clear whether the search produced 99 or 100 results. Both
numbers are referenced in the trial court's discovery order.
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                                        3
Clayton, New Jersey. Hauss discovered the vehicle was previously operated by

her husband, defendant, who matched the victim’s description of the assailant.

Hauss provided this information to his sergeant but did not print or save the

results of the computer search. As a result, the electronic record of the data

query and results was lost. 2

      On July 18, 2018, defendant was indicted for first-degree murder, N.J.S.A.

2C:11-3(a)(1); third-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(d).

      The State provided post-indictment discovery at the time of defendant’s

arraignment.    On January 7, 2019, defendant made additional discovery




2
   There is no indication in the record before us that the prosecutor’s office
supervised or otherwise was involved in the computer search that Hauss
undertook. Although that circumstance may explain why the computer search
results were not preserved, it has no bearing on the State’s discovery obligations
or the propriety of the discovery order entered by the trial court. See State v.
Richardson, 452 N.J. Super. 124, 133 (App. Div. 2017) ("[O]nce 'a case is
referred to the prosecutor following arrest by a police officer as the initial
process, or on a complaint by a police officer, local law enforcement [becomes]
part of the prosecutor’s office for discovery purposes.'" (alteration in original)
(quoting State v. W.B., 205 N.J. 588, 608 (2011))).



                                                                          A-5249-18T4
                                        4
requests.3 Specifically, defendant requested the registration numbers for all

Ford F-150,4 F-250, and F-350 trucks obtained from the ProPhoenix system,

together with the names and addresses of the registrants. The State replied this

information was not available. Defendant also requested all the registration

information that was entered into the BOSS system. In reply to this specific

request, the State invited defendant to review Office Hauss's report.

      Defendant filed a motion to compel production of additional discovery.

At oral argument before the trial court, defense counsel requested registration

and owner information for the results of Hauss's search so that he could

determine whether any of the vehicles other than defendant's were depicted in

the surveillance videos. Counsel argued, "I'm not prepared to take [Officer

Hauss's] word for the fact that only one of the trucks that he had an opportunity

to enter into the system necessarily meets the description given by the victim."

      The State explained to the trial judge that it attempted to recover the

results of Hauss's search, but the computer did not save that data. On June 11,



3
  We limit our discussion to those discovery requests that are directly relevant
to the issues raised in the State’s interlocutory appeal.
4
 Defendant requested the registration numbers for the F-150 model even though
Officer's Hauss's computer search did not include that model. The trial court
only ordered a recreated search for F-250 and F-350 models.
                                                                         A-5249-18T4
                                       5
2019, Judge M. Christine Allen-Jackson entered an order that, in pertinent part,

requires the State to:

             []. Provide the identity of any other driver who was
             disclosed to have operated or had registered to him or
             her a vehicle fitting the description supplied by
             Detectives Riggs and Hauss on or about March 7,
             2018[,] by reconducting a search of white Ford F-250
             and F-350 trucks on the ProPhoenix and BOSS systems;
             and determining how many of the ninety-nine (99)
             trucks from the original list that were owned from
             2010-2014 within the jurisdictions of Deptford,
             Mantua, Pitman, Glassboro and Clayton, County of
             Gloucester were also owned by the same people in
             March 2018. . . .; and

             []. Provide discovery manually determined by Officer
             Hauss and no longer in the possession of the State by
             resurrecting the list of 100 trucks Officer Hauss
             observed. Furthermore, the State will provide pictures
             of listed trucks to Defense Counsel for review.

      The State contends it should not be required to conduct a new computer

search or create documents that do not presently exist. The State also argues it

would not be possible to recreate the original search results because the

ProPhoenix database will have changed as residents move in and out of the

municipal jurisdictions in the search parameters, and as they buy and sell

vehicles.

                                      II.



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                                       6
      We begin our analysis by reviewing the legal principles that apply to this

appeal.   "The accused in a criminal case is generally 'entitled to broad

discovery.'" State ex rel. A.B., 219 N.J. 542, 555 (2014) (quoting State v.

D.R.H., 127 N.J. 249, 256 (1992)). As the Court explained in State v. Scoles,

"[t]o advance the goal of providing fair and just criminal trials, we have adopted

an open-file approach to pretrial discovery in criminal matters post-indictment."

214 N.J. 236, 252 (2013). "Rule 3:13-3(b) grants a defendant automatic access

to a wide range of relevant evidence," A.B., 219 N.J. at 555, including

"electronically stored information, and any other data or data compilations

stored in any medium from which information can be obtained and translated, if

necessary, into reasonably usable form." R. 3:13-3(b)(1)(E).

      As the Court noted in A.B., "[i]n addition to the automatic discovery

provision of Rule 3:13-3(b), our courts have 'the inherent power to order

discovery when justice so requires.'" 219 N.J. at 555 (quoting State ex rel. W.C.,

85 N.J. 218, 221 (1981)). The Court added:

            "Whether discovery should be expanded [beyond the
            automatic discovery provision of Rule 3:13-3(b)]
            involves exercising judicial discretion . . . [by]
            balancing the beneficial effects of discovery against its
            disadvantages." In exercising its discretion, a court
            should weigh whether the "evidence sought could
            contribute to an adequate defense of the accused
            person" and "cannot practicably be obtained from other

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                                        7
            sources" . . . . When a defendant seeks discovery
            outside of the categories permitted by our court rules,
            he bears the burden of establishing need.

            [Ibid. (citations omitted).]

      Furthermore, "[w]e accord substantial deference to a trial court's issuance

of a discovery order and will not interfere with such an order absent an abuse of

discretion." State v. Hernandez, 225 N.J. 451, 461 (2016) (citing A.B., 219 N.J.

at 554). Accordingly, we "defer to a trial court's resolution of a discovery

matter, provided its determination is not so wide of the mark or is not 'based on

a mistaken understanding of the applicable law.'" A.B., 219 N.J. at 554 (quoting

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).

      Applying these principles to the case before us, we agree with the trial

court that a recreated computer search would contribute to the defense because

it might reveal additional vehicles that match the victim's description and the

target vehicle in the surveillance footage. That, in turn, would assist defendant

in investigating a possible third-party guilt defense. Defendant cannot obtain

this information elsewhere.    Requiring defendant to rely solely on Hauss's

report, moreover, is less helpful because defendant has no way to test whether

the report accurately reflects the unsaved computer search results.




                                                                         A-5249-18T4
                                           8
      In the particular circumstances of this case, moreover, we do not agree

with the State’s characterization that it was ordered to create a new document.

Rather, we think it more apt to characterize the trial court’s order as requiring

the State to recreate search results that police previously generated and used to

identify defendant's vehicle. Had the electronic search results been preserved,

those results, without question, would have been discoverable, and the State

does not argue to the contrary. Furthermore, the State at oral argument before

us acknowledged that it was unfortunate that the search results had not been

preserved. We agree with that characterization and conclude that the trial court

was not powerless to address the unfortunate loss of relevant search results

police generated during the early stages of the investigation.

      We also recognize, as did Judge Allen-Jackson, that the databases Hauss

searched will have changed since he first performed the computer search. That

means the recreated search results will not be identical to the results Hauss

produced. No one has suggested to us, however, that changes in local vehicle

registrations captured in the ProPhoenix database, or in the inventory of

photographs stored in the BOSS Automated License Plate Reader system, are so

extensive as to render the results of a recreated computer search irrelevant. See

R. 3:13-3(b)(1) (discovery includes relevant material); N.J.R.E. 401 ("'Relevant


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                                        9
evidence' means evidence having a tendency in reason to prove or disprove any

fact of consequence to the determination of the action."). While the remedy

fashioned by Judge Allen-Jackson is an imperfect solution to the problem caused

by the failure to preserve the initial search results, her order is consonant with

the quest for truth that undergirds our discovery system.

      We emphasize that our ruling is based on the particular circumstances of

this case and our deference to the discretion of the trial court in addressing

discovery issues. We need not decide whether police are obligated to preserve

database search results that lead to the identification of a suspect vehicle, or

whether law enforcement's failure to do so constitutes a discovery violation. We

hold simply that the trial judge acted within her discretion in ordering the State

to recreate the original computer search. This recreated search would not be

unduly onerous to the State and might aid the defense by providing information

not otherwise available that police used to winnow down the vehicles that might

have been involved in the road-rage incident.

      Affirmed.




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