                                NOT FOR PUBLICATION WITHOUT THE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-2859-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

J.L.,

     Defendant-Appellant.
___________________________

                   Submitted April 1, 2020 – Decided June 5, 2020

                   Before Judges Whipple and Gooden Brown.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Ocean County, Indictment No. 17-06-
                   0843.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michael T. Denny, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Bradley D. Billhimer, Ocean County Prosecutor,
                   attorney for respondent (Samuel J. Marzarella, Chief
                   Appellate Attorney, of counsel; Dina R. Khajezadeh,
                   Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant J.L. appeals from a January 4, 2019 judgment of conviction.

Defendant pled guilty to N.J.S.A. 2C:39-7(b)(1), second-degree certain

persons not to have weapons, after his motion to suppress evidence was denied

by the trial court. He was sentenced to a five-year term with a mandatory five-

year parole bar. He raises the following arguments on appeal.

            POINT I
            THE COURT'S CONCLUSION THAT THE
            WARRANT WAS OBTAINED FOLLOWING THE
            CORRECT PROCEDURES WAS ERRONEOUS,
            AND     BECAUSE THE   WARRANT  WAS
            FUNDAMENTALLY INVALID, THE SEARCH
            WAS WARRANTLESS, AND SUPPRESSION
            SHOULD HAVE BEEN GRANTED.

            POINT II
            THE WARRANT WAS ISSUED WITHOUT
            PROBABLE CAUSE AS REQUIRED BY THE
            FOURTH AMENDMENT AND ARTICLE [ONE]
            PARAGRAPH [SEVEN] OF THE NEW JERSEY
            CONSTITUTION.

We agree with defendant's first argument and reverse.

      We discern the following facts and procedural history from the court

record. On March 12, 2017, defendant's wife, E.L.,1 sought and telephonically

obtained a Temporary Restraining Order (TRO) pursuant to the Prevention of

1
   We use initials pursuant to Rule 1:38-3(c)(12) to protect the identity of an
alleged victim of domestic violence.


                                                                      A-2859-18T4
                                      2
Domestic Violence Act 2 (PDVA) from a Toms River Municipal Court judge

because of an incident that occurred in the home.

      The telephonic application was recorded, as is required under Rule

5:7A(b).3   However, the recording was destroyed after ninety days by the

Tom's River Police Department, consistent with its records retention policy.

While there is no written or recorded memorialization of it in the record before

us, the State asserts that the application for the TRO was conducted in the

presence of a Toms River police officer, that E.L. was administered an oath,

and the municipal court judge took testimony about current and previous acts

of domestic violence by defendant. The municipal court judge then issued the

TRO, along with a warrant to search for and to seize weapons for safekeeping

pursuant to Rule 5:7A and N.J.S.A. 2C:25-28(j). The warrant allowed officers

to seize the following weapons and ammunition: a Smith & Wesson .357

2
    N.J.S.A. 2C:25-17 to -35.
3
    Under Rule 5:7A(b), a TRO issued telephonically "shall" be
"contemporaneously record[ed]" electronically or, where electronic recording
is not available, by the judge's longhand notes summarizing what is said. The
applicant must be sworn, identify themselves, specify the purpose of the
request, and disclose the basis of the application. Ibid. This sworn testimony
is deemed to be an affidavit for the purpose of issuing the TRO , and serves as
the basis for the judge's finding of exigent circumstances sufficient to excuse
the failure of the applicant to appear personally, as well as whether sufficient
grounds have been shown to grant the TRO. Ibid.


                                                                       A-2859-18T4
                                      3
Magnum, hollow-point bullets, and three shotguns. When officers arrived at

defendant's home, they served him with the TRO and executed the search

warrant, finding the weapons and ammunition enumerated in the warrant. The

next day, defendant was served with a complaint warrant charging one count

of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1).

      A Grand Jury indicted defendant eighty-one days later, on June 7, 2017,

charging fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39-

3(f), and four counts of second-degree certain persons not to have weapons,

N.J.S.A. 2C:39-7(b)(1).     Defendant's counsel wrote to the Toms River

Municipal Court on October 17, 2017, to request the electronically-recorded

testimony or the judge's longhand notes pursuant to Rule 5:7A(b). However,

the recording of the proceeding had been destroyed, no affidavit was filed with

the warrant, and no longhand notes were taken.

      Defendant moved to suppress the evidence retrieved from the search,

arguing that without the availability of the telephonic record, the search

warrant did not comply with procedural requirements of Rules 5:7A(b) and

3:5-3(b)4 and could not be considered valid.


4
   Rule 3:5-3 allows for the issuance of a search warrant upon the sworn oral
testimony of an applicant who is not physically present. The procedure


                                                                       A-2859-18T4
                                      4
      The motion judge disagreed, finding:

            I do not find that the failure to preserve the recording
            of the telephonic proceedings before [the municipal
            court judge] . . . affords the defendant the remedy or
            relief that it seeks. I do not find that this is a
            deliberate destruction. I do not find it driven by bad
            faith . . . . And the fact that it was not around after
            that period of time I do not think is the result of any
            type of police misconduct or State misconduct. As
            pointed out . . . the defendant had knowledge of the
            existence of it, that there was the restraining order
            hearing itself, and that the indictment was handed
            down well in advance of the request for this particular
            piece of evidence. So I do not find that the fact that
            the recording was not made available or maintained is
            critical, certainly did not afford the remedy to the
            defendant that he believes should be available to him.

      On November 13, 2018, defendant pled guilty to second-degree certain

persons not to have weapons, N.J.S.A. 2C:39-7(b)(1). This appeal followed.

      "Appellate courts reviewing a grant or denial of a motion to suppress

must defer to the factual findings of the trial court so long as those findings are

supported by sufficient evidence in the record." State v. Hubbard, 222 N.J.


(continued)
mirrors Rule 5:7A(b) in that the applicant must be sworn, identify themselves,
specify the purpose of the request, and disclose the basis of their information,
which is deemed to be an affidavit for the purposes of issuing the search
warrant. R. 3:5-3. Like Rule 5:7A(b), the sworn oral testimony "shall" be
recorded electronically or by "adequate longhand notes summarizing what is
said." R. 3:5-3.


                                                                          A-2859-18T4
                                        5
249, 262, (2015) (citations omitted). We do not, however, defer to the trial

court's legal conclusions, which we review de novo. Id. at 263 (citing State v.

Gandhi, 201 N.J. 161, 176, (2010)).

      When a search warrant is issued under N.J.S.A. 2C:25-28(j), the police

are authorized to search for and seize weapons. In State v. Hemenway, the

Supreme Court stated that

            before issuing a warrant to search for weapons under
            the [PDVA], a court must find that there is (1)
            probable cause to believe that an act of domestic
            violence has been committed by the defendant; (2)
            probable cause to believe that a search for and seizure
            of weapons is "necessary to protect the life, health or
            well-being of a victim on whose behalf the relief is
            sought[]"; and (3) probable cause to believe that the
            weapons are located in the place to be searched.

            [239 N.J. 111, 117, (2019) (quoting N.J.S.A. 2C:25-
            28(f)).]

      In State v. Cassidy, the New Jersey Supreme Court determined that a

warrant included in a TRO was invalid because the issuing judge who spoke to

the domestic violence complainant by telephone did not swear her in , nor did

he record his conversations with her or the officer who took the complaint.

179 N.J. 150, 155, 164 (2004), abrogated on other grounds by State v.

Edmonds, 179 N.J. 117 (2012). The Court noted "the procedural requirements

for a telephonic search warrant are fundamental to the substantive validity of

                                                                      A-2859-18T4
                                      6
the warrant," and a telephonic authorization will only be deemed the

"functional equivalent of a written warrant" when "all of the procedural

safeguards . . . to assure the underlying reliability of the judge's decision to

authorize the search have been met." Id. at 158. Given the principle the Court

adheres to that views "searches and seizures inside a home without a warrant

a[s] presumptively unreasonable," it is imperative that "[t]he record of the ex

parte proceeding . . . disclose a proper basis" for the TRO and attached

warrant. Id. at 164 (alteration in original) (citation omitted). Cognizant of the

principles enunciated in Hemenway and Cassidy, we turn to the motion court's

analysis herein.

      Here, the motion judge found no bad faith on the part of the State in

connection with the destruction of the testimony recording in support of the

search warrant. And, we do note that "[w]ithout bad faith on the part of the

State, 'failure to preserve potentially useful evidence does not constitute a

denial of due process of law.'" George v. City of Newark, 384 N.J. Super. 232,

243 (App. Div. 2006) (quoting Arizona v. Youngblood, 488 U.S. 51, 57

(1988)); see also State v. Marshall, 123 N.J. 1, 109-10 (1991) (applying

Youngblood's bad faith standard); State v. Mustaro, 411 N.J. Super. 91, 103

(App. Div. 2009). However, the judge did not address the State's obligation to


                                                                        A-2859-18T4
                                      7
preserve evidence consistent with the strictures of the Fourth Amendment in

cases it prosecutes criminally, nor did he consider the prejudice to defendant of

the destroyed evidence.

      When evidence has been destroyed, the court must focus on "(1) whether

there was bad faith or connivance on the part of the government, (2) whether

the evidence . . . was sufficiently material to the defense, [and] (3) whether

[the] defendant was prejudiced by the loss or destruction of the evidence."

State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.) (citations omitted).

"In the absence of bad faith, relief should be granted to a defendant only where

there is a 'showing of manifest prejudice or harm' arising from the failure to

preserve evidence."    State v Dreher, 302 N.J. Super. 408, 489 (App. Div.

1994), abrogated on other grounds by State v. Brown, 170 N.J. 138 (2001)

(quoting DeVitis v. N.J. Racing Comm'n, 202 N.J. Super. 484 (App. Div.

1985)).

      Here, the manifest prejudice or harm arose from the destruction of

evidence by the Toms River Police Department, presumptively just three days

after defendant was indicted.     Although not explicitly stated, the motion

judge's finding that the State acted "without bad faith" is apparently drawn

from the Toms River Police Department's ninety-day retention policy.


                                                                        A-2859-18T4
                                      8
However, the Toms River Police Department's retention policy is not a valid

measure of the State's good faith obligation to preserve evidence it controls in

a criminal prosecution. While the matter began as a domestic violence case,

the moment the State chose to bring criminal charges against defendant as a

result of a search warrant generated under the PDVA, its obligation to preserve

evidence arose.5

      In New Jersey, an accused has a right to broad discovery after the return

of an indictment in a criminal case. R. 3:13-3(b); State v. Scoles, 214 N.J.

236, 252 (2013); State v. Hernandez, 225 N.J. 451, 461 (2016). Without any

record of the telephonic TRO application to review, we do not have a

sufficient factual basis by which to determine whether the municipal court

judge properly issued the search warrant. Defendant cannot be faulted for not

requesting the recording before its destruction when he was indicted a mere


5
   In March 2010, the New Jersey Attorney General issued guidelines for
retaining evidence in criminal cases that required each county prosecutor's
office to develop and follow its own evidence destruction authorization policy
and procedures, which include procedures to be followed regarding both
evidence held by the county prosecutor's office as well as evidence held by
local law enforcement agencies within its jurisdiction. N.J. Attorney Gen.
Dep't of Law and Pub. Safety and the N.J. Prosecutor's Ass'n, Attorney Gen.
Guidelines     for   the    Retention    of    Evidence     (March      2010),
https://www.nj.gov/oag/dcj/agguide/directives/2010-1evidence-retention.pdf.



                                                                       A-2859-18T4
                                      9
three days before the expiration of the ninety-day retention period,

notwithstanding the fact that he was served with a complaint-warrant three

months earlier. See R. 3:13-3(b)6.

      Reversed and judgment of conviction vacated.




6
   Rule 3:13-3(b)(1) provides that the prosecutor's discovery is to be made
available to the defendant "upon the return or unsealing of the indictment."


                                                                    A-2859-18T4
                                     10
