                                NOT FOR PUBLICATION WITHOUT THE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-4459-17T3

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

MAWULDA PINKSTON,

     Defendant-Respondent.
___________________________

                    Argued December 19, 2018 – Decided May 30, 2019

                    Before Judges Fuentes, Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment Nos. 16-07-0103
                    and 17-03-0041.

                    Omari S. Reid, Deputy Attorney General, argued the
                    cause for appellant (Gurbir S. Grewal, Attorney
                    General, attorney; Omari S. Reid, of counsel and on the
                    brief).

                    Alicia J. Hubbard, Assistant Deputy Public Defender,
                    argued the cause for respondent (Joseph E. Krakora,
                    Public Defender, attorney; Alicia J. Hubbard, of
                    counsel and on the brief).
PER CURIAM

      By leave granted, the State appeals from an April 10, 2018 order imposing

sanctions, including the dismissal of an indictment, based on the State's failure

to make timely discovery in two pending criminal cases, which had been

consolidated for trial, against defendant Mawulda Pinkston. We affirm in part,

reverse in part, and remand for further proceedings.

                                       I.

      Defendant was charged with various drug offenses and arrested on June

27, 2015, as the result of a New Jersey State Police investigation during which

a confidential informant allegedly bought controlled dangerous substances from

defendant on five separate occasions. The police seized two cellphones from

defendant at the time of his arrest. Approximately three-and-a-half months later,

the State sent defendant a letter concerning the charges and a disc containing

initial discovery.

      On July 6, 2016, over one year after his arrest, a grand jury returned an

indictment charging defendant with second-degree conspiracy to distribute

cocaine, N.J.S.A. 2C:5-2, 2C:35-5(a)(1) (count one); first-degree distribution of

cocaine, N.J.S.A. 2C:35-5(a)(1), (b)(1), (c) (count two); third-degree

distribution of cocaine within one thousand feet of school property, N.J.S.A.


                                                                         A-4459-17T3
                                       2
2C:35-7(a) (count three); second-degree distribution of cocaine within five

hundred feet of certain public property, N.J.S.A. 2C:35-7.1(a) (count four); and

third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count five).

Defendant was arraigned on July 18, 2016. 1

      On March 7, 2017, a grand jury returned a second indictment charging

defendant with a single count of third-degree witness tampering, N.J.S.A.

2C:28-5(a), for contacting the confidential informant involved in his drug case

and attempting to dissuade the informant from testifying.2 At the April 10, 2017

arraignment on the indictment, the State did not provide defendant with

discovery on the witness tampering charge, but represented to the court that the

discovery would be supplied to defendant. 3




1
  The State has not provided the transcript of defendant's arraignment on the
drug charges. See R. 2:5-4(a).
2
  The confidential informant told police defendant attempted to contact him at
his workplace on July 22, 2016, and called him on his cellphone the following
day and attempted to dissuade him from testifying against defendant. The
informant called defendant on July 25, 2016, and the police recorded that call.
3
  The State has not provided the transcript of the April 10, 2017 arraignment.
See R. 2:5-4(a). We discern the facts concerning the arraignment from the
representations of counsel at other proceedings for which transcripts have been
provided and the trial court's findings, which the parties do not dispute.
                                                                        A-4459-17T3
                                       3
      In September 2017, a new deputy attorney general took over the

prosecution of defendant's cases. The court held a pretrial conference and plea

cutoff proceeding in the drug case on October 16, 2017. Defendant expressed

uncertainty regarding whether to proceed to trial and the court gave defendant a

week to consider his decision. On October 23, 2017, defendant appeared before

the court and rejected the State's plea offer; the State offered to recommend that

defendant receive a sentence not to exceed fifteen years with a seventy-five

month period of parole ineligibility in exchange for his plea of guilty to the first-

degree distribution charge.4 The State's plea offer also included its commitment

to recommend dismissal of the witness tampering charge.

       The pretrial memorandum, that was signed by defendant, his counsel and

the deputy attorney general, and entered by the court, expressly stated that "All

Pretrial Discovery is complete."5 The pretrial memorandum also provided that,



4
  The State has not provided the transcripts of either the October 16 or October
23, 2017 proceedings. See R. 2:5-4(a). We discern the facts concerning the
proceedings from the representations of counsel in other proceedings for which
transcripts have been provided and the trial court's findings, which are not
disputed.
5
   The pretrial memorandum noted that the State would provide defendant with
a copy of a formal order dismissing charges against the confidential informant.
The State's compliance with this provision of the pretrial memorandum is not at
issue.
                                                                             A-4459-17T3
                                         4
"except in extraordinary circumstances, the filing of [the] [m]emorandum ends

all plea negotiations, and no further bargaining will take place. Any subsequent

plea of guilty will be without a plea recommendation." The court scheduled

November 16, 2017, for the commencement of jury selection for the trial on the

drug charges.

      On November 14, 2017, two days before jury selection was to begin, the

State requested a trial adjournment due to purported witness availability issues.

The trial court held a telephone conference on November 15, 2017, accepted the

State's representation it had witness availability issues and granted the State's

adjournment request. The court rescheduled the trial for February 27, 2018.

      On November 15, 2017, hours after the court granted the State's

adjournment request, the State filed a motion to consolidate the drug and witness

tampering cases for trial. The deputy attorney general did not disclose the State's

planned filing of the consolidation motion during the adjournment telephone

conference with the court.

      The State's representation in the October 23, 2017 pretrial memorandum

that discovery was complete proved to be inaccurate and disingenuous. On

November 15, 2017, the State first produced lab notes related to the drug case.

On November 21, 2017, unbeknownst to defendant and the judge who conducted


                                                                           A-4459-17T3
                                        5
the pretrial conference and plea cutoff proceeding and was scheduled to try the

drug case, the State obtained two search warrants from another judge for the

cellphones that were seized from defendant more than two years earlier during

his June 2015 arrest.6 The deputy attorney general later admitted she knew prior

to the October 23, 2017 pretrial conference and plea cutoff proceeding that the

State planned to obtain the search warrants for the phones, and that she did not

disclose the State's intention to the court or defendant during that proceeding.

She nonetheless signed the pretrial memorandum stating all discovery in the

drug case was complete.

      Police executed the warrants and downloaded information from the

phones on or before December 18, 2017, but the State did not provide the

information to defendant at that time. Instead, the State waited until February

6, 2018, three weeks before the scheduled trial date, to first advise defendant

that the warrants had been sought and provide defendant with the information

downloaded from the phones.




6
  In a later proceeding, the judge who had handled the proceedings in the two
matters stated that he was not available to consider the search warrant
applications on the day the warrants were issued, and did not know the State
sought or obtained the search warrants until February 6, 2018.
                                                                        A-4459-17T3
                                       6
      Confronted in November 2017 with the State's motion to consolidate the

drug and witness tampering cases, defendant's counsel sent a written request for

discovery in the witness tampering case on November 21, 2017. Prior to that

time, defendant had not received any discovery in that case, and his counsel had

not requested any discovery because she believed, based on her communications

with the State, the witness tampering case would be disposed of separately after

trial in the drug case.7 Having not received a reply, defendant's counsel renewed

the request on December 6, 2017.

      The State first provided discovery in the witness tampering case on

December 15, 2017, when the State revealed, despite prior assertions to the

contrary, that the confidential informant had been financially compensated for

his work as an informant in the drug case. The State provided some additional

documentation regarding the confidential informant on December 19, 2017, and

provided information concerning some of the payments made to the confidential

informant in connection with his cooperation in defendant's drug case on

January 3, 2018.



7
   During a February 21, 2017 proceeding, the deputy attorney general agreed
that the planned handling of the two cases "until very late in the game was that
the State was going to try the first[-]degree drug charge and then . . . see where
[it] went with the witness tampering."
                                                                          A-4459-17T3
                                        7
      On January 12, 2018, the court heard argument and granted the State's

motion to consolidate the drug and witness tampering cases for trial. The court

found "the evidence that would support the [witness tampering] indictment . . .

would clearly be admissible to support a consciousness of guilt theory in the

drug charge." The court was "satisfied that the probative value of this evidence

is not outweighed by any prejudice," but noted it was "a little bit late" for the

State "to be filing" the consolidation motion.

      The court also ordered the State to provide any outstanding discovery and

instructed the parties to return for a pretrial conference on the witness tampering

case. The court emphasized that the deputy attorney general at the hearing was

"new to this case, new being in the last several months anyway and a lot of [the

discovery] discussions occurred with counsel who was in the case prior to " the

new deputy attorney general's involvement. The State refused to represent that

all discovery had been produced because it had "been finding out information

through the State Police . . . over the past several months," but the deputy

attorney general represented that the State had "provided everything that

[it] . . . [had] currently."   The court accepted the State's representation, but

stated the answer was "unacceptable" because the February 27, 2018 trial was

six weeks away and defendant had already "been to plea cutoff in this case."


                                                                           A-4459-17T3
                                          8
During the proceeding, the deputy attorney general inexplicably failed to

mention to the court or counsel that search warrants had been issued for the

cellphones and information from the cellphones had been obtained from the

execution of the warrants but not yet provided to defendant.

      On January 16, 2018, defendant reprised his request for information

regarding any past cooperation between the confidential informant and the State.

The State objected, arguing it had no obligation to provide information

concerning the confidential informant's cooperation in other investigations and

prosecutions.

      On February 5, 2018, the parties appeared for a pretrial conference in the

witness tampering case. Defense counsel advised the court she intended to file

a motion to compel the production of discovery related to the confidential

informant. The court did not conduct the pretrial conference but instead ordered

a briefing schedule for defendant's motion. The court scheduled a February 21,

2018 hearing on the motion, but advised that the trial would proceed as

scheduled on February 27. The deputy attorney general again failed to disclose

the cellphone search warrants or the information obtained when the warrants

were executed in December 2017.




                                                                        A-4459-17T3
                                       9
      On February 6, 2018, the State supplied additional discovery in the drug

and witness tampering cases, including defendant's signed Miranda card, a

photograph of defendant, the confidential informant's drawing of a house, two

search warrant affidavits, three evidence receipts and a lab report. For the first

time, the State also separately alerted defendant concerning the cellphone search

warrants and searches, providing copies of the search warrant affidavits and two

discs containing hundreds of pages of encrypted data seized two months earlier

during the search of the phones. On February 8, 2018, the State provided

additional discovery in the witness tampering case.

      Six days later, defendant filed a motion to exclude the late cellphone data

discovery under Rule 3:13(f). The trial court heard oral argument on the motion

on February 21, 2018, and noted its ongoing frustration with the State because

of its numerous inaccurate representations during prior proceedings that

discovery was complete. The court noted the State's failure to search the phones

for two-and-a-half years, its decision to conduct the searches after the plea cutoff

proceeding in the drug case, its failure to disclose the December 2017 cellphone

searches and their results during proceedings in January and February 2018, and

its belated disclosure on February 6, 2018, of the search warrants and

information seized from the phones, only ten days before jury selection in the


                                                                            A-4459-17T3
                                        10
trial was to begin. The court did not rule on defendant's motion to exclude the

information seized from the phones and instead required the State to submit a

certification detailing the discovery history in the cases and the reasons for its

failures and delays in providing discovery. The court adjourned the trial.

      On March 6, 2018, the State finally responded to defendant's request for

discovery regarding two witnesses who the confidential informant claimed

observed the witness tampering; the State's response was that it did not have a

full name or contact information for either individual because they were

unknown to the confidential informant.

      On March 8, 2018, the deputy attorney general filed the court-ordered

certification on the discovery history of the cases and mailed defendant a copy

of ostensibly all discovery in both the drug and witness tampering cases.

      On April 4, 2018, the court heard further argument on defendant's motions

to compel discovery of information concerning payments to the confidential

informant and to exclude the cellphone records. The deputy attorney general

acknowledged that discovery concerning the confidential informant should have

been disclosed at the outset of the drug case because the distribution charge

against defendant was dependent on the confidential informant's testimony. The

deputy attorney general also admitted to the "possibility" that the State made a


                                                                          A-4459-17T3
                                       11
conscious choice not to disclose the identity of the confidential informant until

ordered by the court. The deputy attorney general conceded that the State's

agreement with the confidential informant was an important and relevant

document in the drug case, but could offer no explanation why it had not been

turned over to defendant in discovery. The court rejected the deputy attorney

general's explanation that the delays in the production of discovery were the

result of State Police actions, noting the Attorney General has supervisory

authority over the State Police.

      The court heard argument on defendant's motion to bar the information

seized from the cellphones at trial. The deputy attorney general indicated the

State perceived it had a strong case against defendant on the drug charges and

the information from the cellphones was "something additional and

supplemental for trial." She further acknowledged her failure to disclose the

State's plan to obtain the search warrants for the phones at the October 23, 2017

pretrial conference and plea cutoff proceeding "gets pretty close to a sandbag"

of defendant, deprived defendant of the ability to make a knowing decision about

how to proceed in the case, deprived defense counsel of the ability to provide

good legal advice and was not fair.




                                                                         A-4459-17T3
                                      12
      The deputy attorney general represented that the decision to move to

consolidate the drug and witness tampering cases was not made until after the

pretrial proceeding in the drug case, and the motion was made without regard to

the effect it would have on the scheduled trial date. She further admitted the

motion was filed on November 15, 2017, immediately following the trial

adjournment request telephone conference during which she did not disclose that

the motion would be filed, and that, prior to filing the motion, the State had not

provided any discovery to defendant in the witness tampering case.

      The deputy attorney general also agreed the evidence in the witness

tampering case should have been provided separately as discovery in the drug

case because it pertained to the confidential informant who allegedly witnessed

the drug distribution charged in the indictment. The deputy attorney general

acknowledged that even after the consolidation of the cases on January 12, 2018,

there were "significant items . . . missing" from the discovery due to defendant.

      On April 10, 2018, the trial court rendered an oral decision on defendant's

motions and sua sponte dismissed the witness tampering charge, vacated the

order consolidating the cases, and barred the State's use of evidence seized from

the cellphones following the October 23, 2017 pretrial conference in the drug




                                                                          A-4459-17T3
                                       13
case.8 The court's sua sponte actions were founded on its determination that the

New Jersey Division of Criminal Justice "displayed . . . a cavalier and arrogant

indifference to its discovery obligation[s]," and "violated [its] inherent

obligation to promote fundamental fairness and protect the basic rights of people

who [are] accused of committing a crime." The court noted that the "Division

has made representations . . . it didn't keep" and "affirmatively failed to disclose

information . . . which any reasonable person would know that the [c]ourt

wanted."

      The court detailed the numerous court proceedings that occurred during

the two matters,9 recounted the State's failure to provide discovery in the witness

tampering case until after the consolidation motion was filed, and explained that

it would not have granted the consolidation motion if it had known th at, due to

the State's failure to honor its obligation to provide automatic and broad



8
  The court also ordered that the State provide in discovery information related
to payments made by the State to the confidential informant. The State does not
challenge that portion of the court's order and we therefore do not address it.
9
   The court noted that it reviewed the audio recordings of all of the prior
proceedings in the two cases and incorporated the record of those proceedings
into its decision. The State, however, failed to include in the record on appeal
the transcripts of all of the proceedings, other than the grand jury hearings,
occurring prior to the January 12, 2018 hearing on the State's consolidation
motion. See R. 2:5-4(a).
                                                                            A-4459-17T3
                                        14
discovery, the witness tampering case was not prepared for the trial that was

scheduled only weeks later. The court observed that the State's failure to provide

the discovery deprived defendant's counsel of the opportunity to provide

effective assistance because she could not adequately assess the State's case or

prepare for trial. The court found the State's failure to timely provide the

discovery in the witness tampering case "constitutes an egregious carelessness

tantamount to [a] suppression of evidence against . . . defendant."

      The court further found the State committed a "significant additional

discovery violation" by choosing to wait until after the pretrial proceeding in the

drug case to obtain the search warrants and information from the cellphones and

by misrepresenting at the pretrial hearing and in the pretrial memorandum that

discovery was complete. The court found the State had the cellphones for more

than two years before the search warrants were sought and made a strategic

decision not to search the phones prior to the pretrial conference and plea cutoff

proceeding, instead opting to obtain the search warrants and information from

the cellphones only after defendant rejected the State's plea offer and the court

entered the pretrial memorandum. The court also noted the State's consistent

and inexplicable failure to disclose the search warrants and the search of the

cellphones during the October 23, 2017 proceeding and the numerous court


                                                                           A-4459-17T3
                                       15
interactions and exchanges with defense counsel following the issuance of the

warrants in November 2017 and prior to February 6, 2017. The court found the

State's actions constituted a "deliberate failure to candidly share . . . important

information in this case."

      The court concluded the State's actions unfairly deprived defendant of the

opportunity to make a fully informed decision concerning the State's plea offer

at the October 23, 2017 pretrial conference and plea cutoff proceeding, and

reasoned that "the best way to address this matter is simply to restore the

defendant to the exact position that he was in on the day that the pretrial

memorandum was completed [in the drug case] and the day that the State

represented that its discovery was complete and that it was ready for trial." The

court found it was "fair to make the State honor that choice" and "fundamentally

unfair to let the State make representations of plea cutoff and then act to

strengthen [its] case in anticipation of trial" through, not just the motion to

consolidate, but "the search warrants concerning the phones."           The court

concluded that defendant's decision to proceed to trial "was not fully informed"

because his lawyer did not have all the State's discovery and thus could not

"provide him with the most effective assistance possible."




                                                                           A-4459-17T3
                                       16
      The court also determined it was inappropriate to reward the State's

"unilateral decision making" which caused months of delay in bringing

defendant's drug case to trial following the plea cutoff proceeding. The court

vacated its January 12, 2018 order consolidating the drug and witness tampering

cases for trial, finding the State had failed to provide discovery in the witness

tampering   case   prior   to   filing    the   motion   for   consolidation   and

"sandbagg[ed] . . . defendant." The court found the State's consolidation motion

was "designed to increase the likelihood of [defendant's] conviction," the State

indicated it would provide discovery to defendant when he was arraigned on the

witness tampering charge but did not, and the State's failure to provide the

discovery both before and after the consolidation motion was "borne of abject

indifference and a complete lack of due diligence." The court dismissed the

witness tampering indictment with prejudice, finding the State's conduct

appalling and noting discovery in the witness tampering case "should have been

provided substantially earlier at or near the time of the arraignment at a

minimum."

      The court barred the State from using at trial any evidence it provided in

discovery after the October 23, 2017 pretrial conference, where the State

disingenuously represented that discovery was complete. The court permitted


                                                                           A-4459-17T3
                                         17
defendant to use at trial evidence provided by the State after October 23, 2017,

including the cellphone records, without "opening the door" to the State's use of

the evidence. The court, however, ordered that the State could move at trial to

utilize evidence produced following the October 23, 2017 pretrial conference if

defendant relied on such evidence in the first instance at trial. The court also

directed that the State provide all outstanding discovery related to the drug case.

      The court entered an April 10, 2018 order dismissing the witness

tampering indictment, vacating the order consolidating the drug and witness

tampering indictments for trial, barring the State's use of any discovery produced

following the October 23, 2017 pretrial conference in the drug case, and

allowing defendant to rely on such evidence without opening the door to the

State's use of such evidence. We granted the State's motion for leave to appeal

the court's order.

      On appeal, the State presents the following argument for our

consideration:

             POINT I

             THE JUDGE ABUSED HIS DISCRETION BY
             IMPOSING    UNNECESSARILY  DRACONIAN
             SANCTIONS TO ADDRESS DISCOVERY ISSUES
             THAT WERE NOT INTENTIONAL, EGREGIOUS,
             OR PREJUDICIAL.


                                                                           A-4459-17T3
                                       18
                                       II.

      We consider the State's argument in the context of basic principles

applicable to the State's grave responsibilities in its prosecution of criminal

cases. "Because of the overwhelming power vested in his [or her] office, [a

prosecutor's] obligation to play fair is every bit as compelling as his [or her]

responsibility to protect the public." State v. Torres, 328 N.J. Super. 77, 94

(App. Div. 2000) (second alteration in original); see also RPC 3.8 (outlining

special responsibilities of prosecutors). Our Supreme Court has explained that

"[t]he heightened responsibilities of prosecutors include faithful adherence to

all . . . protections accorded defendants[.]" State v. Harvey, 176 N.J. 522, 529

(2003) (alterations in original) (quoting State v. Carreker, 172 N.J. 100, 115

(2002)). Among those protections is the defendant's right to discovery.

      A "[d]efendant's post-indictment right to discovery is automatic" under

our Rules of Court. State v. Gilchrist, 381 N.J. Super. 138, 145 (App. Div. 2005)

(quoting Pressler, Current N.J. Court Rules, cmt. 3.1 on R. 3:13-3 (2006)). A

criminal defendant is "entitled to broad discovery under Rule 3:13-3," State v.

Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), and our Supreme

Court has recognized "our longstanding case-law view in favor of the exchange




                                                                          A-4459-17T3
                                      19
of pretrial discovery and the court rule that makes pretrial access to the evidence

a critical right for all defendants," State v. Scoles, 214 N.J. 236, 257 (2013).

      The State has a continuing duty to provide the requisite discovery during

the course of a criminal proceeding. R. 3:13-3(f). However, where, as here, a

trial court determines that the State has failed to comply with its discovery

obligations under the Rule, the court

            may order such party to permit the discovery of
            materials not previously disclosed, grant a continuance
            or delay during trial, or prohibit the party from
            introducing in evidence the material not disclosed, or it
            may enter such other order as it deems appropriate.

            [Ibid.]

      "A trial court's resolution of a discovery issue is entitled to substantial

deference and will not be overturned absent an abuse of discretion." State v.

Washington, 453 N.J. Super. 164, 179-80 (App. Div. 2018) (quoting State v.

Stein, 225 N.J. 582, 593 (2016)). However, we will not defer to discovery orders

that are "wide of the mark" or "based on a mistaken understanding of the

applicable law." Id. at 180 (quoting State v. Hernandez, 225 N.J. 451, 461

(2016)). We review "the meaning or scope of a court rule . . . de novo" and "do

not defer to the interpretations of the trial court . . . unless we are persuaded by




                                                                            A-4459-17T3
                                        20
[its] reasoning." Ibid. (second and third alterations in original) (quoting State

v. Tier, 228 N.J. 555, 561 (2017)).

      Prior to addressing the court's exercise of its discretion in imposing the

specific sanctions at issue here, we first reject the State's contention that no

sanctions are appropriate because the discovery violations, which the State does

not dispute, were inadvertent. Stated differently, the deputy attorney general

representing the State on appeal 10 contends in part that we should reverse the

court's order because the "State did not intentionally or carelessly withhold the

discovery." We are unconvinced.

      The court's findings concerning the State's violation of the discovery rules

are well-supported by sufficient evidence in the record. After representing to

the court at defendant's arraignment on the witness tampering charge that it

would provide the discovery in the matter to defendant, the State simply,

undeniably and without any explanation failed to do so. As the trial court aptly

noted, discovery in the witness tampering case was pertinent to the drug case,



10
   The deputy attorneys general representing the State in the trial court have not
made an appearance in this appeal. The deputy attorney general representing
the State on this appeal, who ably handled this matter with professionalism and
candor, did not participate in any of the proceedings before the trial court and
was not involved in the State's discovery infractions that are the subject of this
appeal.
                                                                          A-4459-17T3
                                       21
but the State failed to honor its continuing obligation to supply that discovery in

the drug case as well.     Moreover, as we have already detailed, the State's

discovery improprieties did not end there; it planned to obtain search warrants

for the cellphones prior to the October 23, 2017 plea cutoff proceeding in the

drug case but never advised defendant or the court of that fact and instead

misrepresented to the court and in the pretrial memorandum that discovery was

complete. More importantly, the State permitted defendant to proceed to plea

cutoff, and reject the State's plea offer, without all of the discovery the State

planned to obtain and use later at trial. The State further did not advise the court

of the warrants or information harvested from the phones during the telephone

conference on its trial adjournment request, the argument on the consolidation

motion or the February 5, 2017 conference. When offered an opportunity to

provide a reason for its consistent and ongoing lack of disclosure, the State

offered nothing more than a belatedly candid acknowledgment of its

inexplicable failures.

      The State also failed to disclose its intention to make the consolidation

motion at the time it requested a trial adjournment for purported witness

unavailability issues, filing the motion only hours after the adjournment was

secured even though it had never provided any discovery related to the witness


                                                                            A-4459-17T3
                                        22
tampering case in either that case or the drug case. When the consolidation

motion was argued, the State not only failed to disclose the existence of the

cellphone search warrants and the information seized from the cellphones, it did

not disclose that it had not provided complete discovery to defendant in the

witness tampering case or the deputy attorney general's then realization she had

not been provided all of the discovery from the State Police in that matter.

Instead, the State was content to ignore its failures to comply with its discovery

obligations and let defendant and his counsel proceed to a trial scheduled only

weeks later where the State intended to request that an extended term life

sentence be imposed if defendant was convicted.

       Here, the trial court generously found the State's conduct constituted gross

carelessness and indifference, but regardless of how the conduct is

characterized, it is wholly inconsistent with the State's obligation to "promote

fairness and protect the basic rights of all citizens, even those [it] believe[s] to

be guilty." State v. Clark, 347 N.J. Super. 497, 508 (App. Div. 2002). We have

observed that "[a] criminal trial is not a jousting match or board game in which

strategy outweighs fairness and rules are celebrated in the letter and not the

spirit,"   ibid., but here the State's conduct, failure to honor its discovery

obligations, lack of disclosure, and strategy to gather and slowly mete out


                                                                            A-4459-17T3
                                        23
additional discovery to strengthen its case against a defendant who rejected a

plea offer is the paradigm of abhorrent and unacceptable gamesmanship not only

with defendant, but also with the court.

      The State asserts that the court's order dismissing the witness tampering

indictment constitutes a "draconian sanction[]" in response to "inadvertent

discovery violations that did not prejudice defendant and for which any number

of less severe remedies would have readily sufficed." While the court possesses

"inherent powers" to dismiss an indictment when the State fails to comply with

discovery rules, State v. Abbati, 99 N.J. 418, 429 (1985); see also R. 3:13-3(f),

the court should only grant a motion to dismiss an indictment in limited

circumstances, State v. Zembreski, 445 N.J. Super. 412, 424-25 (App. Div.

2016).   "One of the guiding principles to be followed by a court when

considering a motion to dismiss an indictment is that 'a dismissal of an

indictment is a draconian remedy and should not be exercised except on the

clearest and plainest ground.'" Ibid. (quoting State v. Williams, 441 N.J. Super.

266, 271 (App. Div. 2015)).

      "Before a dismissal of an indictment is warranted . . . there must be a

finding of intention inconsistent with fair play and therefore inconsistent with

due process, or an egregious carelessness or prosecutorial excess tantamount to


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suppression." State v. Washington, 165 N.J. Super. 149, 156 (App. Div. 1979)

(quoting State v. Laganella, 144 N.J. Super. 268, 282 (App. Div. 1976)). "In the

absence of these conditions," the court should dismiss an indictment "only if

otherwise there would be manifest and harmful prejudice to defendant." Ibid.

(quoting Laganella, 144 N.J. Super. at 282-83). However, "the public interest

in the completion of criminal trials weighs against [dismissing an indictment]

where other remedies are available," State v. Ruffin, 371 N.J. Super. 371, 388

(App. Div. 2004), and "this drastic remedy is inappropriate where other judicial

action will protect a defendant's fair trial rights," Clark, 347 N.J. Super. at 508.

      We share the trial court's justifiable outrage at the State's conduct and

failure to honor its discovery obligations and duty to make disclosures where

appropriate. Nonetheless, we are not convinced the court correctly exercised its

discretion by dismissing the indictment charging witness tampering, and reverse

that portion of the court's order. Dismissal of an indictment due to a discovery

violation is a "last resort because the public interest, the rights of the victims

and the integrity of the criminal justice system are at stake." Ruffin, 371 N.J.

Super. at 384. That is particularly true where the charge to be dismissed is one

for witness tampering, and the putative victim is an important witness in the

prosecution of other significant criminal charges.


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      Here, dismissal of the witness tampering indictment was unnecessary for

the protection of defendant's right to a fair trial on that charge because the court's

decision, which we affirm, to vacate the consolidation order protected

defendant's right to a fair trial in the witness tampering case.           See, e.g.,

Zembreski, 445 N.J. Super. at 426-27 (finding no abuse of discretion where the

court denied defendant's motion to dismiss a superseding indictment after the

court offered defendant more time to prepare for trial and the defendant

declined); Clark, 347 N.J. Super. at 508 (holding a trial judge "properly denied

the defense motion to dismiss the indictment" after the prosecutor failed to

disclose information regarding a witness). Indeed, the court recognized "that it

ha[d] arguably taken appropriate ameliorative action by vacating the order

consolidating the two indictments for trial."

      "The choice of sanctions appropriate for discovery-rule violations is left

to the broad discretion of the trial court." State v. Marshall, 123 N.J. 1, 134

(1991).    The court properly exercised that discretion by vacating the

consolidation order to remedy the State's failure to provide discovery in that

matter prior to the filing of the consolidation motion and its failure to provide

complete discovery in the matter after the motion was filed. The court's vacation

of the consolidation order, however, eliminated any prejudice to defendant's


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                                        26
ability to prepare his defense to the witness tampering charge because the trials

on the drug and witness tampering indictments will proceed separately in

accordance with defendant's understanding at the time of the October 23, 2017

pretrial conference and plea cutoff proceeding.

        Moreover, the late delivery of the discovery in the witness tampering case

did not prejudice defendant in making his decision to reject the plea offer in the

drug case. Although no discovery on the witness tampering charge had been

provided prior to the October 23, 2017 plea cutoff proceeding, defendant and

his counsel were aware they did not have the discovery, but did not deem its

absence relevant to defendant's determination to accept or reject the State's plea

offer in the drug case. That is, defendant rejected the plea offer in the drug case

with full knowledge he did not have the discovery from the witness tampering

case.

        We therefore affirm the court's order vacating its January 12, 2018 order

consolidating the drug and witness tampering cases. We reverse the court's

order dismissing the witness tampering indictment; the sanction is unnecessary

to protect defendant's right to a fair trial.

        We do not find the court abused its discretion by barring the State's use in

the drug case of the discovery it produced following the October 23, 2017


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                                         27
proceeding at which the State represented that discovery was complete. We

recognize that "the sanction of preclusion is a drastic remedy and should be

applied only after other alternatives are fully explored[.]" Washington, 453 N.J.

Super. at 190 (alteration in original) (quoting State v. Scher, 278 N.J. Super.

249, 272 (App. Div. 1994)). Rule 3:13-3(f) "specifically provides for discretion

in formulating a sanction for a discovery violation," Clark, 347 N.J. Super. at

509, and expressly allows for an order "prohibit[ing a] party from

introducing . . . the material not disclosed," R. 3:13-3(f). "An adjournment or

continuance is a preferred remedy where circumstances permit." Clark, 347 N.J.

Super. at 509. However, "repeated and flagrant derelictions" of the discovery

rules "may require application of the sanction of preclusion." State v. Burnett,

198 N.J. Super. 53, 61 (App. Div. 1984).

      Here, the Court determined the State's discovery violations, including its

failure to provide discovery in the witness tampering case and in the drug case,

and other conduct amounted to "repeated and flagrant derelictions" of the

discovery rules and that preclusion of discovery produced after execution of the

pretrial memorandum was the appropriate remedy. We agree. The court shall

only conduct a pretrial conference and schedule a case for trial "[i]f the court

determines that discovery is complete." R. 3:9-1(f). The State represented in


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                                      28
the pretrial memorandum that, but for one document, discovery was complete,

but at the same time already planned to seek a search warrant for the cellphones

and knew it failed to provide the discovery in the witness tampering case in the

drug case. Defendant relied on that representation in deciding to proceed to

trial, and the court relied on that representation in scheduling the matter for trial.

The State then obtained search warrants for defendant's cellphones, obtained

information from the phones, withheld disclosure of the search warrants and

information for two months, and made disclosure only nine days before jury

selection was to begin. The State's conduct was not the result of inadvertence

or the late discovery of previously unknown evidence; it was the product of an

intentional and hidden strategy.

      The State contends the trial court "effectively created a new rule wherein

the State is barred at plea cutoff from conducting further investigation to

strengthen its case or respond to potential defenses at trial."            The State

mischaracterizes what occurred. The rule has always been that the State must

provide full and automatic discovery to a criminal defendant, cannot

misrepresent to the court that discovery is complete when it has an active plan

to obtain discovery in the future, is not permitted to fail to disclose that it applied

for search warrants and obtained additional discovery materials after a pretrial


                                                                               A-4459-17T3
                                         29
memorandum has been executed and a trial date has been set, and cannot delay

the production of newly discovered information for two months while knowing

that there are only weeks until a pending trial. The trial court did not create a

new rule.   It simply imposed an appropriate sanction for the State's clear

violation of well-established rules and principles that provide the foundation for

a criminal defendant's right to a fair trial. Cf. Washington, 453 N.J. Super. at

191 (setting aside the trial judge's exclusion of DNA evidence because the State

did not intentionally mislead the defendant, the report's completion "was

delayed for the straightforward reasons set forth in the certifications " regarding

the State Police's conduct, and the prosecutor immediately supplied the report

once available).

      The State never sought relief from the pretrial memorandum from the

court, but instead chose to employ a strategy of quietly developing and thrusting

upon defendant and the court additional discovery with the goal of bolstering its

case after defendant rejected the State's plea offer. There is no doubt the State

acted improperly and unfairly to gain an unfair advantage over defendant

following his final rejection of the plea offer. The deputy attorney general

admitted as much in April 2018, after the nature and extent of the State's conduct

was exposed; she acknowledged the State's actions—her actions—"get[] pretty


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                                       30
close to a sandbag," deprived defendant of the ability to make knowing decisions

about how to proceed in the drug case, denied his attorney the ability to give

him effective legal advice and were not fair.

      Under such circumstances, we discern no basis to conclude the court 's

decision to bar the State's use of the discovery disclosed after the October 23,

2017 proceeding constituted an abuse of discretion. See id. at 179-80. To the

contrary, the court's measured and well-reasoned decision barring the State's use

at trial in the drug case of the discovery produced following the October 23,

2017 proceeding constituted a justified and proper exercise of the court's

discretion.

       For these reasons, we affirm the court's order precluding the State from

using discovery submitted after the October 23, 2017 pretrial memorandum. We

read the remainder of the court's order, which conditions the State's use of the

discovery materials provided after October 23, 2017, upon the approval of the

court if defendant uses the materials in the first instance, as nothing more than

the court's exercise of its standard gatekeeping function concerning the

admission of evidence at trial. Stated differently, we do not read that portion of

the court's order limiting the State's use of the post-October 23, 2017, discovery

materials to prohibit the State's use of the materials, to the extent admissible


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                                       31
under the Rules of Evidence, to address, refute or rebut issues raised by

defendant's use, if any, of those materials.    Thus, contrary to the State's

contention, the order does not give "defendant free reign [sic]" to use the

materials while precluding the State from using the records "in any way."

      Affirmed in part, reversed in part and remanded for further proceedings.

We do not retain jurisdiction.




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