                        NOT FOR PUBLICATION WITHOUT THE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-1421-16T1

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

THOMAS EVERETT,

        Defendant-Respondent.

______________________________

              Argued September 14, 2017 – Decided October 18, 2017

              Before Judges Simonelli, Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Indictment No.
              15-09-1184.

              Michael R. Philips, Assistant Prosecutor,
              argued the cause for appellant (Gurbir S.
              Grewal, Bergen County Prosecutor, attorney;
              Mr. Philips, of counsel and on the brief;
              John J. Scaliti, Legal Assistant, on the
              briefs).

              Dennis D.S.      McAlevy    argued     the   cause   for
              respondent.

PER CURIAM

        The State appeals from the Law Division's dismissal of the

indictment       charging    defendant,     Thomas    Everett,     with   second-
degree possession of a weapon without a permit, N.J.S.A. 2C:39-

5(b),   third-degree     possession         of   stolen   property,        N.J.S.A.

2C:20-7, and second-degree possession of a handgun by a person

not lawfully permitted to possess a weapon, N.J.S.A. 2C:39-7(b).

The motion judge dismissed the indictment after he concluded

that the State failed to produce a statement from a federal

agent   working    for   the   United      States    Department      of    Homeland

Security about a confidential informant (CI) involved in the

events that led to defendant's arrest.                 On appeal, the State

contends it was error for the court to dismiss the indictment

under the circumstances.        We agree and reverse.

    The facts leading to the dismissal of the indictment can be

summarized   as    follows.      The   CI    was    working   with    a    Homeland

Security   agent    on   an    unrelated     matter    when    he    advised     the

federal agent that he could arrange for the purchase of weapons

from a third party, who turned out to be defendant.                       The agent

informed local police who set into motion a series of events

that led to the CI scheduling a purchase from defendant while

under   police    surveillance.         At   the    scheduled    purchase,       the

police stopped defendant while he was with the CI.                    The police

found a handgun in defendant's possession.                    He was arrested,

charged and later indicted.



                                       2                                   A-1421-16T1
    During   the   ensuing    prosecution,      defense    counsel   filed    a

motion for a bill of particulars, R. 3:7-5, seeking information

from the prosecutor about the CI.          The motion judge granted the

application, entering an order on April 28, 2016, identifying

specific information that the prosecutor was to turn over to

defense counsel relating to the CI.             According to the court's

order, the prosecutor was to produce the following information

by May 13, 2016:

         1.   Documentation regarding the length of
         [the   CI's]   employment  with  [the   local
         police];    copies    of  all    oral/written
         agreements between [the CI] and [the local
         police], and any/all benefits given or
         promised by [the local police] to [the CI];

         2.   Documentation regarding the length of
         [the   CI's]    employment    with   Homeland
         Security;   copies    of   all   oral/written
         agreements between [the CI] and Homeland
         Security, and any/all benefits given or
         promised by Homeland Security to [the CI];
         or in the alternative, if the State is
         unable to obtain such documentation, then to
         provide defense counsel with the name,
         address and telephone number of the Homeland
         Security agent who is supervising [the CI's]
         work for said agency;

         3.    A true        copy   of   [the   CI's]     criminal
         history[.]

         [(emphasis added).]

    The prosecutor wrote to defense counsel on May 16, 2016,

providing him with information responsive to the court's order.


                                    3                                A-1421-16T1
That information included confirmation that the CI did not have

any oral or written agreements with local law enforcement.               As

to Homeland Security, the prosecutor explained:

           [he] reached out to the. . . [a]gent . . .
           [who] conveyed . . . that there was no
           written  confidential   informant agreement
           between . . . Homeland Security and [the
           CI]. . . . [The CI's] length of service as
           an informant to . . . Homeland Security was
           less than six (6) months. For helping . . .
           Homeland Security, [the CI] potentially had
           an opportunity to benefit himself with
           regard to his own criminal charges in New
           Jersey.    However, [the CI] received no
           benefit with regard to any of his own cases
           and was dropped by . . . Homeland Security
           as an informant when it was discovered that
           he was continuing to commit crimes in New
           Jersey.

    The prosecutor's letter also advised counsel of the CI's

federal   and   state   criminal   history   and   identified   by   name,

address and telephone number the agent who supervised the CI's

work with Homeland Security.

    At a status conference held before the motion judge on May

23, 2016, defense counsel argued that the prosecutor's response

was not sufficient and that counsel intended to subpoena the

federal agent.     Counsel issued the subpoena and, in response,

assistant chief counsel to Homeland Security wrote that before

the agency would respond to the subpoena, defense counsel was




                                   4                             A-1421-16T1
required to comply with the federal "Touhy regulations,1" and

that    compliance         was     "an       absolute       condition       precedent     to

obtaining      testimony     .     .   .     from   a   .    .   .   Homeland    Security

employee."       Defense counsel made no effort to comply with the

regulations.

       After     making      another          unsuccessful           attempt     to     seek

compliance,      defense         counsel      filed     a   motion     to     dismiss    the

indictment.          The    motion         judge    granted      defendant's      motion,

placing his reasons on the record.                      In his oral decision, the

judge concluded that, under Rule 3:13-3(b), defendants have the

right to information relevant to the credibility of a State

witness, including any cooperation agreement setting forth any

benefits       promised     to     the       witness.         The     court    found     the

prosecutor and the federal government were working together when

defendant      was   arrested,         and    the     prosecutor's      statement       that

Homeland Security told him that no written cooperation agreement

existed was hearsay and inadequate to satisfy the State's burden

under Rule 3:13-3(b).             The judge concluded that the withholding




1
    United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S. Ct.
416, 95 L. Ed. 417 (1951) (recognizing agency's right to
promulgate regulations governing the disclosure of information).
See also 6 C.F.R. §§ 5.41-.49 (addressing conditions to Homeland
Security personnel responding to subpoenas).


                                              5                                   A-1421-16T1
of   the    information         violated         defendant's    federal    and      state

constitutional rights.

     The State filed a notice of appeal on December 13, 2016 and

the motion judge issued a written amplification of his decision

under Rule 2:5-1(b).             In his comprehensive amplification, the

judge      acknowledged         that      Homeland       Security   was     "not       the

prosecuting agent in this State Court proceeding," but because

it   participated          in    a        "joint       investigation"     with      local

authorities it should not be permitted to "stand[] behind an

opaque veil, refusing to comply" with the court's order.                                 He

also recognized that the court may not have "authority to compel

federal agencies" to produce discovery, but it could compel the

prosecutor       to   be   responsible           for    obtaining   the   information

sought     in    satisfaction        of    the    State's   obligation    under       Rule

3:13-3(b).        The judge concluded by rejecting the argument that

the prosecutor's version of what he was told by the federal

agent satisfied that obligation.                   The judge stated:

                     The Assistant Prosecutor is not a
                witness and cannot independently verify the
                accuracy of the hearsay statements made by
                the federal agent regarding the relationship
                between the federal government and the CI.
                In this State prosecution initiated by
                federal agents, with the direct involvement
                of a federal CI, the State must either (1)
                produce the appropriate federal entity with
                knowledge  of   the  relationship,   or  (2)
                produce a written statement from the federal

                                             6                                   A-1421-16T1
            agency confirming the existence or                        non-
            existence of a cooperation agreement                      with
            its CI.

                 The failure of the State to provide
            information  pertaining  to   the  CI   has
            deprived defendant of the right to confront
            the CI and attack his credibility, and has
            also deprived defendant with information
            which may be relevant to the defense of
            entrapment.

            [(emphasis added).]

    On appeal from the order dismissing the indictment, the

State argues the motion judge erred because federal regulations

prevented     the     prosecutor         from     obtaining      the       information

defendant    sought    from     the     federal    agent,    and    "the     assistant

prosecutor's representations, regarding the nature of the CI's

arrangement    with       law   enforcement       authorities,        satisfied       the

State's discovery obligation."

    "We     review    a     trial     court's     decision    [on]     a     motion    to

dismiss an indictment for a clear abuse of discretion."                           State

v. Zembreski, 445 N.J. Super. 412, 424 (App. Div. 2016) (citing

State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010)).

"[T]he decision whether to dismiss an indictment lies within the

discretion     of     the       trial     court,     and     that      exercise        of

discretionary       authority       ordinarily     will    not   be    disturbed       on

appeal unless it has been clearly abused."                   State v. Hogan, 144

N.J. 216, 229 (1996) (citations omitted).                   "However, if a trial

                                          7                                    A-1421-16T1
court's discretionary decision is based upon a misconception of

the law, a reviewing court owes that decision no particular

deference."     Zembreski, supra, 445 N.J. Super. at 424 (quoting

Lyons, supra, 417 N.J. Super. at 258).

    Although     courts    have    "inherent    powers"    to    dismiss    an

indictment where the State has failed to comply with discovery,

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

granting a motion to dismiss an indictment should occur only in

limited circumstances.        Zembreski, supra, 445 N.J. Super. at

424-25.     "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) (alteration omitted)).            Dismissal of an indictment

"is the last resort because the public interest, the rights of

victims and the integrity of the criminal justice system are at

stake."    State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div.

2004)     (citations     omitted).         "[T]his   drastic     remedy     is

inappropriate    where     other     judicial   action    will   protect     a

defendant's fair trial rights."           State v. Clark, 347 N.J. Super.

497, 508 (App. Div. 2002).



                                      8                             A-1421-16T1
          Before a dismissal of an indictment is
          warranted in such circumstances, . . . 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 suppression.     In the absence
          of these conditions, the right of the public
          to its day in court in the prosecution of
          properly   found    indictments    should   be
          forfeited only if otherwise there would be
          manifest and harmful prejudice to defendant.

          [State v. Laganella, 144                  N.J. Super. 268,
          282-83 (App. Div. 1976).]

      "A trial judge is not limited to dismissal as a remedy.

The rule specifically provides for discretion in formulating a

sanction for a discovery violation."                   Clark, supra, 347 N.J.

Super. at 509 (citations omitted); see also R. 3:13-3(f).

      Applying    these     guiding    principles,          we    conclude   that   the

motion judge mistakenly exercised his discretion by dismissing

the indictment.      At the outset, we concur with the motion judge

that the hearsay statement of the prosecutor about what the

federal   agent     told    him   did       little     to    protect       defendant's

Confrontation      Clause     rights        under     the        federal   and    state

constitutions.        We    disagree,        however,       that     dismissing     the

indictment was warranted under the circumstances.

      First, there was no legal basis for the judge to find the

prosecutor violated the State's discovery obligations because of

the   federal     agent's    or   Homeland          Security's       conduct.       The

                                        9                                     A-1421-16T1
prosecutor complied with the only order entered by the court

prior to dismissal that required him "to provide counsel with

the name, address and telephone number of the Homeland Security

agent who is supervising [the CI's] work for said agency" if the

prosecutor was unable to obtain a written statement directly

from the agent.       The provisions of the court's order were never

violated.       If the motion judge believed the prosecutor had to do

more, he should have specified in another order the action to be

taken so that the prosecutor could attempt to comply or seek

alternate relief.

       Second, defense counsel's subpoena did not comply with the

Homeland Security regulations provided in 6 C.F.R. §§ 5.41-.49.

Specifically, 6 C.F.R. § 5.45 required that defense counsel "set

forth in writing, and with as much specificity as possible, the

nature and relevance of the official information sought."                               If

defendant complied with the regulations and Homeland Security

denied his request, pursuant to the considerations indicated in

6 C.F.R. § 5.48(a), then defendant's recourse would have been to

challenge that decision through an Administrative Procedure Act

proceeding      in   federal    court,     See   5    U.S.C.     §    702      (limiting

Administrative Procedures Act review to the federal courts), as

that    court     remained     the   ultimate        authority       as   to    whether

Homeland Security –— a federal agency –— should be required to

                                      10                                        A-1421-16T1
turn    over      any   information       to    a     defendant      in    a   state   court

criminal action.              See Chrysler Corp. v. Brown, 441 U.S. 281,

295-96,      99    S.    Ct.    170560     L.        Ed.    2d    208     (1979)   ("agency

regulations implementing federal statutes . . . pre-empt state

law under the Supremacy Clause"); see also Edwards v. U. S Dep't

of Justice, 43 F.3d 312, 314-15 (7th Cir. 1994).

       In light of the motion judge's misapplication of the law,

we     are   constrained         to   reverse          the       order    dismissing      the

indictment.

       Reversed         and    remanded        for     an    order       reinstating      the

indictment        and    for    further    proceedings            consistent       with   our

opinion.       We do not retain jurisdiction.




                                           11                                       A-1421-16T1
