                        RECORD IMPOUNDED

                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                 SUPERIOR COURT OF NEW JERSEY
                                 APPELLATE DIVISION
                                 DOCKET NO. A-1891-16T2

STATE OF NEW JERSEY,
                                     APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                        February 8, 2017
v.
                                       APPELLATE DIVISION

HABEEB ROBINSON,

     Defendant-Appellant.

_____________________________________


         Argued January 31, 2017 – Decided February 8, 2017

         Before Judges Reisner, Koblitz and Rothstadt.

         On appeal from the Superior Court of New
         Jersey, Law Division, Essex County, Complaint-
         Warrant No. W20160256160714.

         Elizabeth C. Jarit, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph E. Krakora, Public Defender, attorney;
         Ms. Jarit, of counsel and on the brief).

         Frank J. DuCoat, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued
         the cause for respondent (Carolyn A. Murray,
         Acting Essex County Prosecutor, attorney; Mr.
         DuCoat, of counsel and on the brief).

         Claudia Joy Demitro, Deputy Attorney General,
         argued the cause for amicus curiae Attorney
         General (Christopher S. Porrino, Attorney
         General, attorney; Ms. Demitro, of counsel and
         on the brief).
            Alexander Shalom argued the cause for amicus
            curiae American Civil Liberties Union of New
            Jersey Foundation (Mr. Shalom, Edward L.
            Barocas and Jeanne LoCicero, on the brief).

       The opinion of the court was delivered by

REISNER, P.J.A.D.

       In this appeal, we address the scope of the discovery which

the State must produce prior to a pretrial detention hearing held

under the Bail Reform Act (Act), N.J.S.A. 2A:162-15 to -26.                   Rule

3:4-2(c)(1)(B), which was part of a comprehensive set of rule

amendments adopted to implement the Act, provides:

            [I]f the prosecutor is seeking pretrial
            detention, the prosecutor shall provide the
            defendant with all statements or reports in
            its possession relating to the pretrial
            detention application.      All exculpatory
            evidence must be disclosed.

            [R. 3:4-2(c)(1)(B).]

This   appeal   primarily   focuses       on   the   meaning   of   the    phrase

"relating to the pretrial detention application."1

       In this case, defendant was arrested on January 4, 2017, and

charged with murder based on an affidavit of probable cause

reciting that two eyewitnesses saw defendant shoot the victim, and


1
  In this case, the State acknowledged its obligation to provide
"[a]ll exculpatory evidence," Rule 3:4-2(c)(1)(B), and provided
defense counsel with defendant's statement to the police.    The
"exculpatory evidence" provision is not at issue in this appeal
and therefore the opinion will not address that requirement.


                                      2                                   A-1891-16T2
the witnesses identified defendant from a photo array.                          The

Preliminary   Law    Enforcement    Information       Report    (PLEIR)2       also

stated that the police had surveillance video footage relevant to

the   commission    of   the   crime.        The   defense   asked   for     those

documents, and the State refused to provide them.

      As a result, the January 10, 2017 pretrial detention hearing

devolved into a dispute over discovery, with the State insisting

that its discovery obligation was limited to producing the probable

cause affidavit and the PLEIR.              Judge Ronald D. Wigler rejected

that argument.      Instead, keying the State's discovery obligation

to the evidence referenced in the probable cause affidavit and

related information listed in the PLEIR, Judge Wigler required the

prosecutor to produce as discovery the two eyewitness statements,

the photo array, and the surveillance video listed in the PLEIR.




2
  In a comprehensive directive aimed at guiding law enforcement
agencies to implement and comply with the Act, the Attorney General
directed the creation of the PLEIR form, as a means by which law
enforcement officers could quickly summarize the evidence in their
possession. Att'y Gen. Law Enf't Directive No. 2016-6, Oct. 11,
2016.   The PLEIR was intended to "succinctly describe[] the
relevant factual circumstances pertaining to the offense for which
the defendant was arrested and the basis for the arresting
officer's belief that probable cause exists."      Id. at 48.   The
PLEIR was also intended to "inform the prosecutor's decision
whether to file a motion for pretrial detention." Ibid. On the
face of the document, the PLEIR recites that it must accompany the
probable cause affidavit and is deemed to be incorporated by
reference into the affidavit.

                                        3                                  A-1891-16T2
He also ordered the State to turn over any initial police reports

that related to the application.

       We conclude that Judge Wigler correctly interpreted Rule 3:

4-2(c)(1)(B).      The State's argument, which it repeats on this

appeal, is contrary to the plain language and textual context of

the rule, as well as its purpose.         The State's contention is also

directly contrary to the position it asserted before the Criminal

Practice Committee - including the version of the rule the State

advocated - during the Committee's comprehensive review of Court

Rule    amendments    needed   to   implement   the   Act.   The   State's

submissions were included in the Committee's report to the Supreme

Court and thus became part of the legislative history of section

(B) as adopted by the Court.         See Rep. of the Sup. Ct. Comm. on

Criminal Practice on Recommended Court Rules to Implement the Bail

Reform Law, Part 1, Pretrial Release (May 9, 2016) (CPC Report).

       We conclude that Judge Wigler correctly interpreted the rule

as entitling a defendant to discovery of the factual materials on

which the State bases its application for defendant's pretrial

detention,   and     not   merely   the   hearsay   description   of     those

materials set forth in the probable cause affidavit and the PLEIR.

       We reject the State's contention that it need only produce

the materials described in the affidavit if it says it relies on

them.    Clearly, the State relies on the affidavit to establish

                                      4                                A-1891-16T2
probable cause, and therefore, the materials described by hearsay

in the affidavit "relate" to the detention application.               R. 3:4-

2(c)(1)(B).       Moreover, the trial court cannot be expected to

ignore what is set forth in the probable cause affidavit in

considering the weight of the State's evidence, N.J.S.A. 2A:162-

20(a),    and   the   defense    cannot     meaningfully    respond   to    the

application without seeing at least the most critical evidence

supporting the State's allegations.

     In this case, the State alleged that defendant committed a

murder in view of two eyewitnesses and a surveillance camera.               The

State's   probable    cause     affidavit   turned   on    identification    of

defendant as the shooter, and thus the required discovery would

be the materials "relating to" that aspect of the State's motion.

R. 3:4-2(c)(1)(B).      We agree with Judge Wigler that defendant was

entitled to discover the statements of the two eyewitnesses; the

photo array described in the probable cause affidavit as having

been used in the identification process; the surveillance video;

and the initial police reports of the crime.                 Accordingly, we

affirm the January 10, 2017 discovery order.3             We also vacate the


3
 We granted the State's motion for leave to appeal from the January
10, 2017 order. Defendant did not cross-move for leave to appeal
from the order.    We note that the order, which the prosecutor
drafted, directs the State to produce the documents described
above, plus any other discovery "related to" its application,


                                      5                               A-1891-16T2
stay of the order that was entered pending appeal, and remand this

case   to    the   trial   court    to     complete   discovery   and   hold   the

detention hearing forthwith.4

       Finally, we understand that, because of the expedited nature

of the pretrial detention hearing process, all parties need clear

guidance as to the State's discovery obligations.                 In particular,

the State needs to know with some specificity what documents it

must produce when it files its detention application, an event

that will usually occur shortly after defendant's arrest.                 At oral

argument, defendant and the amicus American Civil Liberties Union

agreed      that   under   the     Rule,    the   State's   initial     discovery

obligation is limited to the materials in the State's possession

that are referenced in the probable cause affidavit and the related



without listing those materials.     The parties did not specify
other documents to which the order applies. For future reference,
if it is necessary for the court to order the State to produce
discovery, the order should list with specificity the documents
the State must produce.
4
  The probable cause affidavit stated that the witnesses were
fearful, but the State did not apply to Judge Wigler for a
protective order limiting discovery due to concerns for witness
safety. At oral argument, in response to our inquiry about its
underlying policy concerns, the State did not even mention the
protection of witnesses. We infer that the State is aware of its
right to apply for a protective order, in camera review of
evidence, or other relief in a case that presents a genuine issue
as to the protection of witnesses. See In re N.H., 226 N.J. 242,
256 (2016).


                                           6                              A-1891-16T2
materials listed in the PLEIR.5        That is consistent with our

interpretation of the Rule.

     To be clear, if such materials are in the possession of the

police, they are in the State's possession and the prosecutor must

produce them.      See State v. Womack, 145 N.J. 576, 589, cert.

denied, 519 U.S.    1011, 117 S. Ct. 517, 136 L. Ed. 2d 405 (1996);

State v. Mustaro, 411 N.J. Super. 91, 102 (App. Div. 2009).        We

expect that all parties will act cooperatively in implementing

Rule 3:4-2(c)(1)(B), and that they will use available electronic

communication methods to promptly produce and receive discovery.

While there may be occasional glitches in producing discovery,

those should be the exception rather than the rule, to avoid

delaying the pretrial detention hearings and compromising the

rights of defendants.

                               I

     Because this is the first opinion to address an issue under

the Bail Reform Act, it will be helpful to review the history and

content of the Act to put the legal issues in context.




5
  At oral argument, the parties acknowledged that the trial court
has discretion to order additional discovery. That issue is not
presented here, however, and we need not address it.

                                   7                        A-1891-16T2
       The Constitutional Amendment and the Bail Reform Act

      Effective January 1, 2017, the voters of New Jersey approved

a constitutional amendment providing a right to pretrial release,

but   authorizing   pretrial   detention   under   certain   limited

circumstances, N.J. Const. art. I, ¶ 11:

           All persons shall, before conviction, be
           eligible for pretrial release.        Pretrial
           release may be denied to a person if the court
           finds that no amount of monetary bail, non-
           monetary conditions of pretrial release, or
           combination of monetary bail and non-monetary
           conditions   would   reasonably   assure   the
           person's appearance in court when required,
           or protect the safety of any other person or
           the community, or prevent the person from
           obstructing or attempting to obstruct the
           criminal justice process. It shall be lawful
           for the Legislature to establish by law
           procedures, terms, and conditions applicable
           to pretrial release and the denial thereof
           authorized under this provision.

           [N.J. Const. art. I, ¶ 11 (amended effective
           2017).]

      To meet this constitutional mandate, and its shift from a

pretrial system based on the right to bail, New Jersey adopted a

risk-based approach unrelated to a defendant's ability to pay.      As

codified by the Bail Reform Act, the new system favors pretrial

release and monitoring as the presumptive approach and limits

preventive detention to defendants who actually warrant it.         By

permitting judges to keep high-risk defendants detained without

bail, and to release with or without conditions those defendants

                                 8                           A-1891-16T2
who pose little risk of flight or of committing another offense,

these constitutional and legislative changes represent a major

reform to criminal justice that will promote public safety and

fairness.

     Historically, in New Jersey, individuals had a constitutional

right to bail before trial in all criminal cases, "except for

capital offenses when the proof is evident or the presumption

great."     N.J. Const. art. I, ¶ 11; N.J. Const. of 1844 art. I, ¶

10. Although this fundamental right to bail was first incorporated

into the New Jersey Constitution in 1844, it existed by statute

prior to the 1776 Constitution.       State v. Johnson, 61 N.J. 351,

354 (1972) (citing Leaming & Spicer, Grants and Concessions of New

Jersey, 1664-1702 235 (1881)).

     The constitutional amendment approved by voters in November

2014 arose from the recognition that a sizable number of pretrial

defendants stayed in jail before trial because of their inability

to pay relatively small amounts of bail.        Pub. Hearing before

Senate Law and Pub. Safety Comm., Senate Concurrent Resol. 128,

at 2 (July 24, 2014),                  http://www.njleg.state.nj.us/

legislativepub/pubhear/slp 07242014.pdf (Public Hearing).         The

reliance on bail also led to the pretrial release of high-risk

defendants without appropriate individual assessments.        Public



                                  9                          A-1891-16T2
Hearing, supra, at 1-2.            The 2014 constitutional amendment was

intended to address these issues.

     In 2014, the Legislature adopted a new law to take effect on

the same day as the constitutional amendment. Effective on January

1, 2017, the Bail Reform Act established reforms for bail and

other   forms    of   pretrial     release    and    for    pretrial      detention,

established     statutory       speedy   trial   deadlines,     and    made    other

changes to court administration and court-related programs.                       See

Statement to S. 946 (July 31, 2014).

     The three-fold purpose of the Bail Reform Act is to primarily

rely upon pretrial release by non-monetary means "to reasonably

assure an eligible defendant's appearance in court when required,

the protection of the safety of any other person or the community,

[and] that the eligible defendant will not obstruct or attempt to

obstruct the criminal justice process."               N.J.S.A. 2A:162-15.         The

Act further seeks to assure that "the eligible defendant will

comply with all conditions of release, while authorizing the court,

upon motion of a prosecutor, to order pretrial detention . . .

when it finds clear and convincing evidence that no condition or

combination of conditions can reasonably assure the effectuation

of these goals."       N.J.S.A. 2A:162-15.          Under the statute, a court

may set monetary bail "only when it is determined that no other

conditions      of    release    will    reasonably        assure   the     eligible

                                         10                                  A-1891-16T2
defendant's appearance in court when required."                 N.J.S.A. 2A:162-

15.    For purposes of bail reform, an eligible defendant means "a

person for whom a complaint-warrant is issued for an initial charge

involving an indictable offense or a disorderly persons offense

unless otherwise provided" in the statute.                  N.J.S.A. 2A:162-15.

       The Bail Reform Act provides that an eligible defendant,

following the issuance of a complaint-warrant, will be temporarily

detained     to     allow    the    Pretrial     Services    Program     (PSP)     the

opportunity to "prepare a risk assessment with recommendations on

conditions     of    release."       N.J.S.A.     2A:162-16(a);        see   N.J.S.A.

2A:162-25.        The court must make a pretrial release decision "in

no    case   later    than    48    hours    after   the    eligible    defendant's

commitment to jail."           N.J.S.A. 2A:162-16(b)(1).           The court may

release a defendant on his or her own recognizance, or may order

the pretrial release subject to certain conditions.                          N.J.S.A.

2A:162-17.

       If the prosecutor makes a motion for pretrial detention, the

eligible defendant must be detained in jail pending a pretrial

detention hearing.          N.J.S.A. 2A:162-18, -19.         The hearing must be

held no later than the defendant's first appearance, unless either

the eligible defendant or the prosecutor seeks a continuance, or

unless the prosecutor files the motion after the first appearance.

N.J.S.A. 2A:162-19(d).             Upon filing of the prosecutor's motion,

                                            11                                A-1891-16T2
and during any continuance granted by the court, the eligible

defendant must remain in jail.          N.J.S.A. 2A:162-19(d)(2).               If the

eligible defendant was previously released from custody before

trial,    the   court   must   issue   a     notice    to    compel     his    or   her

appearance at the hearing.        N.J.S.A. 2A:162-19(d)(2).

      At the pretrial detention hearing, the eligible defendant has

the right to counsel and, if financially unable to obtain adequate

representation, has the right to appointed counsel.                           N.J.S.A.

2A:162-19(e).       The eligible defendant also has the right "to

testify, to present witnesses, to cross-examine witnesses who

appear at the hearing, and to present information by proffer or

otherwise."     N.J.S.A. 2A:162-19(e)(1).             At a hearing where there

is no indictment, the prosecutor must "establish probable cause

that the eligible defendant committed the predicate offense."

N.J.S.A. 2A:162-19(e)(2).       In reaching its decision, the court may

consider certain information enumerated in N.J.S.A. 2A:162-20.                         A

pretrial detention order must include "written findings of fact

and   a   written   statement    of    the    reasons       for   the   detention."

N.J.S.A. 2A:162-21(a).         "If the court enters an order that is

contrary to a recommendation made in a risk assessment when

determining a method of release or setting release conditions, the

court shall provide an explanation in the document that authorizes

the eligible defendant's release."            N.J.S.A. 2A:162-23(a)(2).

                                       12                                      A-1891-16T2
       When an eligible defendant is released from custody before

trial,   and   upon   motion   of   a    prosecutor   the   court   finds   the

defendant violated a restraining order or condition of release,

or finds probable cause to believe the defendant committed a new

crime while on release, it may not revoke the release and order

the defendant detained unless, after considering all relevant

circumstances, it "finds clear and convincing evidence that no

monetary bail, non-monetary conditions of release or combination

of monetary bail and conditions would reasonably assure" the three

primary purposes of the Act.        N.J.S.A. 2A:162-24.

       The Bail Reform Act also directs courts to calculate speedy

trial deadlines for eligible defendants who are subject to pretrial

detention ordered by a court or who remain in jail pretrial due

to the inability to post monetary bail imposed pursuant to the

Act.     N.J.S.A. 2A:162-22.        Not counting excludable time for

reasonable delays, an eligible defendant must not remain in jail

for more than 90 days prior to the return of an indictment, or 180

days following the return or unsealing of the indictment and before

the commencement of trial.      N.J.S.A. 2A:162-22(a)(1), (a)(2).           The

Bail Reform Act identifies thirteen periods to exclude in computing

the time in which a case must be indicted or tried.                  N.J.S.A.

2A:162-22(b).



                                        13                            A-1891-16T2
    Detention Hearing Provisions in Greater Detail

    The Act, N.J.S.A. 2A:162-19(a), grants the State the right

to file an application for pretrial detention when the State

charges the defendant with the following crimes or offenses:

              (1) any crime of the first or second
         degree enumerated under subsection d. of
         section 2 of N.J.S.A. 2C:43-7.2;

              (2) any crime for which the eligible
         defendant would be subject to an ordinary or
         extended term of life imprisonment;

              (3) any crime if the eligible defendant
         has been convicted of two or more offenses
         under paragraph (1) or (2) of this subsection;

              (4) any crime enumerated under paragraph
         (2) of subsection b. of section 2 of N.J.S.A.
         2C:7-2 or crime involving human trafficking
         pursuant to section 1 of N.J.S.A. 2C:13-8 or
         N.J.S.A. 52:17B-237 et al. when the victim is
         a minor, or the crime of endangering the
         welfare of a child under N.J.S.A. 2C:24-4;

              (5) any crime enumerated under subsection
         c. of N.J.S.A. 2C:43-6;

              (6) any crime or offense involving
         domestic violence as defined in subsection a.
         of section 3 of N.J.S.A. 2C:25-19; or

              (7) any other crime for which the
         prosecutor believes there is a serious risk
         that:

                  (a) the eligible defendant will not
         appear in court as required;

                  (b) the eligible defendant will pose
         a danger to any other person or the community;
         or

                              14                          A-1891-16T2
                     (c) the eligible defendant will
            obstruct or attempt to obstruct justice, or
            threaten, injure, or intimidate, or attempt
            to   threaten,   injure  or   intimidate, a
            prospective witness or juror.

       At the hearing mandated by N.J.S.A. 2A:162-19(c), if the

defendant   has   not   yet   been   indicted,   "the   prosecutor     shall

establish probable cause that the eligible defendant committed the

predicate offense."      N.J.S.A. 2A:162-19(e)(2).        If "the court

finds probable cause that the eligible defendant" committed murder

or a crime that would subject the defendant to life imprisonment,

then

            there shall be a rebuttable presumption that
            the eligible defendant shall be detained
            pending trial because no amount of monetary
            bail, non-monetary condition or combination of
            monetary bail and conditions would reasonably
            assure the eligible defendant's appearance in
            court when required, the protection of the
            safety of any other person or the community,
            and that the eligible defendant will not
            obstruct or attempt to obstruct the criminal
            justice process . . . .

            [N.J.S.A. 2A:162-19(b).]

The presumption of detention

            may be rebutted by proof provided by the
            eligible defendant, the prosecutor, or from
            other materials submitted to the court. The
            standard of proof for a rebuttal of the
            presumption of pretrial detention shall be a
            preponderance of the evidence.      If proof
            cannot   be   established    to   rebut   the
            presumption, the court may order the eligible
            defendant's pretrial detention.       If the

                                     15                              A-1891-16T2
            presumption is rebutted by sufficient proof,
            the prosecutor shall have the opportunity to
            establish that the grounds for pretrial
            detention exist pursuant to this section.

            [N.J.S.A. 2A:162-19(e)(2).]

     In all cases, "[e]xcept when an eligible defendant has failed

to rebut a presumption of pretrial detention pursuant to" N.J.S.A.

2A:162-19(b), "the court's finding to support an order of pretrial

detention    .   .   .   shall   be   supported     by   clear   and   convincing

evidence."       N.J.S.A. 2A:162-19(e)(3).          The court may reopen the

hearing at any time if new and material evidence is discovered.

N.J.S.A. 2A:162-19(f).

     At   the     hearing,   "the     court   may   take   into   account"     the

following information, set forth in N.J.S.A. 2A:162-20:

                 a. The nature and circumstances of the
            offense charged;

                 b.   The weight of the evidence against
            the eligible defendant, except that the court
            may consider the admissibility of any evidence
            sought to be excluded;

                 c.   The history and characteristics of
            the eligible defendant, including:

                 (1) the eligible defendant's character,
            physical and mental condition, family ties,
            employment, financial resources, length of
            residence in the community, community ties,
            past conduct, history relating to drug or
            alcohol abuse, criminal history, and record
            concerning appearance at court proceedings;
            and


                                       16                                 A-1891-16T2
                 (2) whether, at the time of the current
            offense or arrest, the eligible defendant was
            on probation, parole, or on other release
            pending   trial,   sentencing,   appeal,   or
            completion of sentence for an offense under
            federal law, or the law of this or any other
            state;

                 d. The nature and seriousness of the
            danger to any other person or the community
            that   would  be   posed   by  the  eligible
            defendant's release, if applicable;

                 e. The nature and seriousness of the risk
            of obstructing or attempting to obstruct the
            criminal justice process that would be posed
            by the eligible defendant's release, if
            applicable; and

                 f. The release recommendation of the
            pretrial services program obtained using a
            risk assessment instrument under N.J.S.A.
            2A:162-25.


                                  II

      In preparing to implement the Act, the Supreme Court tasked

the   Criminal   Practice    Committee        with   drafting    recommended

amendments to the Court Rules.             Several judges, representatives

of the Attorney General, county prosecutors, the Office of the

Public   Defender,   and    private    attorneys     participated    on   the

Committee.    During the Committee's deliberations, the defense bar

urged that the rules provide for broad discovery in pretrial

detention    hearings.      The   Attorney       General   and   prosecutors

expressed concern that requiring extensive discovery would pose


                                      17                             A-1891-16T2
too great a burden on prosecutors and would transform pretrial

detention hearings into "mini-trials" on a defendant's guilt or

innocence, rather than a focused inquiry on whether the defendant

should be released or detained pretrial.

     After lengthy consideration, the Committee recommended that

the pretrial detention discovery rule mirror Rule 3:13-3(a), which

governs    pre-indictment   plea-offer   discovery.   Section   3(a)

requires the State to provide, at the time of a pre-indictment

plea offer, (1) all exculpatory material, and (2) "all available

relevant material that would be discoverable at the time of

indictment," unless the State determines that disclosure "would

hinder or jeopardize a prosecution or investigation," or "would

impose an unreasonable administrative burden on the prosecutor's

office."   R. 3:13-3(a).6

     In making that recommendation, the Committee acknowledged

that it was not without controversy:

           There were strong concerns raised about the
           nature of a detention hearing, and that it is
           supposed to be limited in scope. Some members
           noted that it would be overly burdensome for
           prosecutors   to   be  required  to   provide
           'complete' discovery, i.e., all material that
           must be turned over under current R. 3:13-3

6
  The Committee's proposed rule read as follows: "(b) if the
prosecutor is seeking pretrial detention, the prosecutor shall
provide all relevant material in its possession that would be
discoverable at the time of indictment as set forth in paragraph
(a) of Rule 3:13-3."

                                 18                         A-1891-16T2
           when the State tenders a plea offer. It was
           asserted that any such requirement would
           signal that the detention hearing could be as
           broad as a trial on the merits of the charge.
           Thus, it was important that the discovery
           obligation be limited to 'relevant material'
           in the prosecutor's possession since these
           hearings   would   be  convening,   in   most
           instances, within a few days of arrest.

           [CPC Report, supra, Part 1 at 51.]

     In a strongly worded dissent, which was appended to the

Committee's report, the Attorney General advocated a narrower rule

that would still require the State to provide some discovery.             The

Attorney General's dissent relied on a proposal put forth earlier

by Judge Martin Cronin, a Committee member, who proposed that

discovery should be limited to exculpatory material and material

related to the State's pretrial detention application.                  That

proposal   was   aimed   at   giving   a   defendant   an   opportunity    to

challenge the basis for detention while also limiting the scope

of discovery to only that which was relevant to the hearing.

     In his dissent, the Attorney General stated:            "To be clear,

prosecutors do not dispute that under the new framework of the

Bail Reform Law, available discovery must be provided to allow the

defense to address the facts and arguments that the State will

present at the pretrial detention hearing."            He noted that "the

weight of the evidence may be relevant," because it "relates

directly to defendant's incentive to flee to avoid a likely trial

                                   19                               A-1891-16T2
conviction."     To   address    "the      legitimate   discovery    needs        of

defendants   facing   pretrial    detention      hearings,"    the    Attorney

General proposed the following alternate version of the discovery

rule:

           (b) if the prosecutor is seeking pretrial
           detention   or   release    revocation, the
           prosecutor shall provide the defendant with
           all statements or reports in its possession
           that relate to the facts upon which the
           prosecutor relies in these motions.

           [Emphasis added.]

Contrary to the position the Attorney General and prosecutor

asserted in this case, the Attorney General's proposed rule did

not limit discovery to the probable cause affidavit and the PLEIR.

        Ultimately,   the   Supreme     Court   did   not   adopt    the     "full

discovery" approach advocated by the Committee and instead adopted

a rule closer to the version advocated by the Attorney General.

As adopted, subsections (A) and (B) of Rule 3:4-2(c)(1) distinguish

between the State's discovery obligation if detention is not sought

and the discovery that must be produced if the State files a

detention motion.

           (A) if the prosecutor is not seeking pretrial
           detention, the prosecutor shall provide the
           defendant with a copy of any available
           preliminary law enforcement incident report
           concerning the offense and any material used
           to establish probable cause;



                                      20                                   A-1891-16T2
            (B) if the prosecutor is seeking pretrial
            detention, the prosecutor shall provide the
            defendant with all statements or reports in
            its possession relating to the pretrial
            detention   application.    All exculpatory
            evidence must be disclosed.

            [R. 3:4-2(c)(1)(A), (B).]

                                    III

        Against that backdrop, we turn to the issue presented in

this appeal.     Our review of a trial court's legal interpretations

- including "the meaning or scope of a court rule" - is de novo.

State v. Hernandez, 225 N.J. 451, 461 (2016).           In construing a

court    rule,   we   apply   well-understood   principles   of   statutory

construction.

            When interpreting court rules, we ordinarily
            apply canons of statutory construction.
            Accordingly, as with a statute, the analysis
            must begin with the plain language of the
            rule.    The Court must "ascribe to the [words
            of the rule] their ordinary meaning and
            significance . . . and read them in context
            with related provisions so as to give sense
            to the [court rules] as a whole . . . ." If
            the language of the rule is ambiguous such
            that it leads to more than one plausible
            interpretation,   the   Court   may  turn   to
            extrinsic evidence.

            [Wiese v. Dedhia, 188 N.J. 587, 592 (2006)
            (citations   omitted)    (alterations   in
            original).]

     Reading the plain language of subsection (B), we conclude

that the words cannot support the State's cramped construction of


                                     21                             A-1891-16T2
the provision.     When the State seeks pretrial detention, it must

turn over "all statements or reports in its possession relating

to the pretrial detention application," and not merely the probable

cause affidavit and the PLEIR. R. 3:4-2(c)(1)(B) (emphasis added).

     If we had any doubts about that conclusion, they would be

laid to rest by comparing section (A), which only requires that

the State produce the PLEIR and the probable cause affidavit, and

section   (B),   which   requires   that   the   State   turn   over   "all

statements or reports."      R. 3:4-2(c)(1)(A), (B).        If the Court

intended the State's discovery obligation under section (B) to be

as narrow as under (A), it would have used the same language in

both sections.     We "must presume that every word" in subsection

(B) "has meaning."    Shelton v. Restaurant.com, Inc., 214 N.J. 419,

441 (2013) (quoting Cast Art Indus., L.L.C. v. KPMG, L.L.P., 209

N.J. 208, 224 (2012)).

     In considering the types of materials the State must produce,

we also note that the Court used the term "relating to," which in

normal usage means "to be about" or "connected with" something.

Merriam-Webster,         https://www.merriam-webster.com/dictionary/

relate%20to (last visited Feb. 3, 2017).                 Considering that

language in light of the rule's legislative history - the CPC

Report and the Attorney General's dissent - we infer that the rule

requires the State to produce those materials in its possession

                                    22                             A-1891-16T2
which relate to the facts on which the State relies in its

application.

     In    this   case,   the   State   relies    on   the   facts   that   two

eyewitnesses identified defendant as the shooter, and that a

surveillance video supports the identification.                 Therefore, it

must produce in discovery the materials relating to those factual

assertions - i.e., the witness statements, the photo arrays, and

the surveillance video.7        The initial police reports must also be

turned over, because they can be expected to provide the basic

background facts concerning the time and place of the crime, the

interviews of the witnesses, and the filing of the murder charge.

     Contrary to the State's argument on this appeal, the required

discovery is not limited to the documents on which the State claims

to rely. Rather, it extends to those materials that "relate" to

the State's application. Therefore, the State cannot avoid turning

over discovery by claiming that it is only "relying" on the

probable    cause   affidavit     and     the   PLEIR.   That    argument     is

unpersuasive and contradicts the position the Attorney General

espoused before the Committee.




7
 At oral argument, the prosecutor confirmed that the surveillance
video was from an ordinary security camera located in the vicinity
of the shooting, as opposed to a special law enforcement
surveillance device.

                                     23                                A-1891-16T2
        We are also unpersuaded by the State's expressed concern

that allowing defendants to obtain discovery beyond the PLEIR and

the probable cause affidavit will turn the pretrial detention

hearings    into   mini-trials.       The    State's    argument    puts    the

proverbial cart before the horse.         The scope of discovery will not

necessarily determine the scope of the hearing. The latter issue

is not before us on this appeal and we do not address it.

     However, we do consider that the very limited discovery for

which   the   State    advocates   could     deny   a   defendant    a     fair

opportunity to defend against the State's application, and could

hamper the trial court's ability to fairly assess the nature and

circumstances of the offense and the weight of the evidence.

N.J.S.A. 2A:162-20(a) and (b) specifically allow the court to

consider those factors.

     In this case, the murder charge was based almost exclusively

on witness identifications.          If the circumstances surrounding

them established that the identifications were weak or otherwise

plainly unreliable, the basis for the State's application would

diminish. Neither defendant nor the court would know this without

review of the identification evidence.         Whether the State intends

to produce the witness statements at the hearing or call the

witnesses to testify is not pertinent.         The salient point is that

defendant     should    have   the        opportunity    to   review        the

                                     24                               A-1891-16T2
identifications to prepare a defense and to facilitate a court

decision based on the circumstances of the case.

      Moreover, although it may not be an issue in this case,

discovery relating to the State's application may reveal to the

court that the charges, while nominally supported by probable

cause, appear exaggerated or a product of over-charging.                   As an

example, a fistfight between two students in a schoolyard could

result in charges ranging from simple assault to attempted murder.

Or, review of a witness statement could result in a defendant

discovering that he or she has an alibi for the alleged time of

the crime. Considering the "nature and circumstances of the

offense     charged"   and    the    "weight       of   the   evidence"    could

significantly     affect     the    court's    decision       on   a   detention

application, even without holding a testimonial hearing.                       See

N.J.S.A. 2A:162-20(a), (b).

      Further, there is nothing unusual about providing a defendant

with additional discovery rights where the State seeks to impose

an additional burden on defendant's freedom or seeks to deprive

a defendant of a traditional legal protection.                   While it is an

imperfect analogy, our Court has held that in juvenile waiver

hearings, the State must provide "[f]ull discovery" to "enable

the   juvenile   and   counsel      to   prepare    for    all   facets   of   the

hearing."     N.H., supra, 226 N.J. at 245.               At a waiver hearing,

                                         25                               A-1891-16T2
the   State    must   establish     probable    cause    that    the   juvenile

committed an enumerated act and that the State did not abuse its

discretion in requesting waiver.           Ibid.     The factors a court may

consider are somewhat similar to those the court may consider at

a detention hearing.         Compare N.J.S.A. 2A:4A-26.1(c)(2) and (3),

with N.J.S.A. 2A:162-20.

      As   explained    by    the   Court,     the   waiver     hearing    is    a

"critically important event" in the process because the juvenile

risks losing the protections afforded by the Family Court, which

includes emphasis on rehabilitation and lesser sentences.                  N.H.,

supra, 226 N.J. at 255.        The Court acknowledged the importance of

discovery in the waiver hearing process:

              Full discovery facilitates the court's review
              of all the issues to be addressed at the
              hearing.    Full discovery also enables the
              juvenile and counsel to prepare for all facets
              of the hearing and decide how best to cross-
              examine the State's witnesses, whether the
              juvenile or others should testify, and how to
              assess and challenge the prosecutor's exercise
              of discretion.

              [Id. at 256.]

      However, the Court noted that the State was free to seek a

protective order "to redact, delay, or withhold the disclosure of

materials that would expose witnesses and others to harm, hinder

or jeopardize ongoing investigations or prosecutions, undermine

the secrecy of informants and confidential information which the

                                      26                                  A-1891-16T2
law recognizes, or compromise some other legitimate interest."

Ibid. (referring to R. 3:13-3(a)(1) and (e)(1)).

     In this case, Rule 3:4-2(c)(1)(B) does not provide for full

discovery.       However, N.H. is instructive because it recognizes

that at critical stages in a criminal proceeding, a defendant

must be afforded "a meaningful opportunity to be heard."                 N.H.,

supra, 226 N.J. at 253.        The discovery provided by section (B) is

an important component of that opportunity.

     In summary, we hold that Rule 3:4-2(c)(1)(B) obligates the

prosecutor to provide a defendant with those materials in the

State's possession that relate to the facts on which the State

bases its pretrial detention application.             Those "facts" are the

factual assertions contained in the probable cause affidavit. The

materials, which must be produced, include those referenced in

the affidavit and in the PLEIR.          In this case, the identification

of   defendant     as   the    shooter    was   central   to   the   State's

application, and the trial court properly ordered the State to

produce    the    eyewitness    statements,     the    photo   arrays,    the

surveillance video listed in the PLEIR, and the initial police

reports.

     Affirmed.




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