                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0591-13T2

STATE OF NEW JERSEY,

     Plaintiff-Respondent,             APPROVED FOR PUBLICATION

v.                                          April 6, 2016

                                         APPELLATE DIVISION
EBONEE R. WILLIAMS,
a/k/a EBONY WILLIAMS,
a/k/a FELTON N. WILLIAMS,
a/k/a ABONEE WILLIAMS,
a/k/a EBONEE ROSE WILLIAMS,
a/k/a EEBONY WILLIAMS,

     Defendant-Appellant.

____________________________________

         Submitted October 20, 2015 – Decided April 6, 2016

         Before Judges Reisner, Leone and Whipple.

         On appeal from the Superior Court of New
         Jersey, Law Division, Middlesex County,
         Indictment No. 11-08-1194.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Kevin G. Byrnes, Designated
         Counsel, on the brief).

         Andrew    C.    Carey,   Middlesex   County
         Prosecutor, attorney for respondent (Miriam
         Acevedo, Assistant Prosecutor, of counsel
         and on the brief).

     The opinion of the court was delivered by

LEONE, J.A.D.
    Defendant Ebonee R. Williams appeals from her conviction

for drug offenses.        Her principal challenge is to the ruling

that her formal statement during plea negotiations could be used

to impeach her if she testified.            We hold that N.J.R.E. 410

generally prohibits the use of any statement made during plea

negotiations to impeach the person making the statement, but

that a defendant can waive that protection under appropriate

circumstances.       We affirm, subject to a remand for a hearing to

determine if defendant waived that protection by agreeing her

statement could be used against her at trial.               We reject her

other claims.

                                     I.

    On May 13, 2011, New Brunswick Police Department officers

executed a search warrant at an apartment on Livingston Avenue.

In the apartment, the officers found defendant.              They located

mail addressed to both defendant and co-defendant Raymond Davila

bearing the apartment's address.            In the kitchen stove, the

officers found three "bricks" of heroin, each containing 150

bags.     In a bedroom containing women's clothing and shoes, the

officers found: seven "decks" of heroin on a television stand;

two "bundles" containing twenty bags of heroin on top of the

dresser; and one clear bag of about twelve grams of cocaine in a

dresser    drawer.      Also   in   the   bedroom,   the   officers   found




                                      2                           A-0591-13T2
defendant's    purse,      which   contained        her    identification,      empty

packets of heroin, and other drug paraphernalia.                       The officers

also discovered a loaded shotgun under a mattress and a loaded

handgun in the bedroom.

      Defendant and Davila were charged with possession of the

items found in the Livingston apartment.                   After a six-day trial,

defendant and Davila were both convicted of conspiracy under

N.J.S.A.     2C:5-2   to   possess     a       controlled    dangerous    substance

(CDS) with intent to distribute in violation of N.J.S.A. 2C:35-

5(a)(1), (b)(3); possession of heroin, N.J.S.A. 2C:35-10(a)(1);

and possession of cocaine, N.J.S.A. 2C:35-10(a)(1).                       Defendant

was   also   convicted     of    possession        of     heroin   with   intent   to

distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3); and possession of

heroin with intent to distribute within 1000 feet of a school,

N.J.S.A. 2C:35-7.1         For these third-degree offenses, the trial

court sentenced defendant to a total of three years in prison

with one-and-one-half years of parole ineligibility.

      Defendant   appeals       from   her      judgment     of    conviction   dated

June 11, 2013, raising the following arguments:


1
  Davila was acquitted of those crimes.       Both defendant and
Davila were acquitted of possession of cocaine with intent to
distribute; possession of cocaine with intent to distribute
within 1000 feet of a school; possession of firearms while in
the course of committing a drug distribution offense; unlawful
possession of a handgun; and possession of a sawed-off shotgun.



                                           3                                A-0591-13T2
            POINT I - THE TRIAL COURT ERRONEOUSLY RULED
            THAT THE DEFENDANT'S STATEMENT – MADE AS
            PART OF A PLEA AGREEMENT THAT WAS WITHDRAWN
            BY THE STATE – WAS ADMISSIBLE TO IMPEACH HER
            CREDIBILITY.

            POINT II - THE DEFENDANT'S MOTION TO DISMISS
            THE INDICTMENT SHOULD HAVE BEEN GRANTED.

                     A.   THE DEFENDANT'S PRETRIAL MOTION TO
                     DISMISS THE INDICTMENT SHOULD HAVE BEEN
                     GRANTED.

                     B.   THE MOTION FOR A JUDGMENT                OF
                     ACQUITTAL SHOULD HAVE BEEN GRANTED.

            POINT III - THE TRIAL COURT FAILED TO
            INSTRUCT THE JURORS ON ALL THE ESSENTIAL
            ELEMENTS OF THE OFFENSE OF POSSESSION OF CDS
            WITH THE INTENT TO DISTRIBUTE.

            POINT IV - THE DISCLOSURE OF THE IDENTITY OF
            THE CONFIDENTIAL INFORMANT WAS ESSENTIAL FOR
            A FAIR DETERMINATION OF THE ISSUES.

            POINT V - THE STATE FAILED TO ESTABLISH THE
            CHAIN OF CUSTODY OF THE EVIDENCE.

            POINT VI - THE DEFENDANT'S RIGHT TO BE FREE
            FROM UNREASONABLE SEARCHES AND SEIZURES AS
            GUARANTEED BY THE ART. I, PAR. 7 OF THE NEW
            JERSEY CONSTITUTION WAS VIOLATED BY THE
            ISSUANCE   OF   A  SEARCH  WARRANT  WITHOUT
            PROBABLE CAUSE.

                                        II.

      The   first      issue    concerns        whether     defendant's      formal

statement   to   the     Middlesex     County    Prosecutor's    Office      (MCPO)

could be used to impeach her if she took the stand at trial.                      We

must hew to our standard of review.                "'[C]onsiderable latitude

is   afforded    a    trial    court   in     determining    whether    to   admit



                                         4                                A-0591-13T2
evidence, and that determination will be reversed only if it

constitutes an abuse of discretion.'"                  State v. Kuropchak, 221

N.J.   368,   385    (2015)     (citation    omitted).          "But   evidentiary

rulings     that    undermine    confidence       in    the    validity    of     the

conviction or misapply the law are subject to reversal."                        State

v. Weaver, 219 N.J. 131, 149 (2014).

       Defendant     applied    pre-indictment         for    admission   to     Drug

Court.    She was tentatively accepted on the condition that she

give a truthful, formal statement about the involvement of her

co-defendants       Davila,     Justin    Jenkins,      and     Llamar    Jenkins.2

Defendant     voluntarily       appeared        with    her    attorney     for     a

videotaped interview.          Defendant signed a form advising her of

her    Miranda     rights.3      The     MCPO    investigator      also    advised

defendant orally of her Miranda rights, which defendant said she

understood.        In particular, defendant said she understood that

"if you decide to make any statement, you must understand that

it may later be used against you in the event of a trial."




2
  Because they share a last name, we will refer to Justin and
Llamar by their first names. The indictment charged Justin and
Llamar with the same crimes as defendant and Davila. Llamar was
also charged with resisting arrest and obstructing justice
during the search. They separately pled guilty to conspiracy to
distribute CDS.
3
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).



                                         5                                 A-0591-13T2
      During       the    interview,    the       investigator    and     defendant's

counsel both questioned defendant.                    Defendant stated as follows.

She resided in the Livingston Avenue apartment with Davila, the

father of her son.          Her nephew Llamar visited the apartment, and

her nephew Justin stayed in the apartment most of the time.                         She

and Davila were staying in the living room, and Justin was the

only person living in the bedroom prior to the search.                           It was

Justin who had access to the bedroom, kept his possessions in

the bedroom, and used the dresser.                    The guns belonged to Justin,

and the drugs belonged to Justin, Llamar, or Davila, all of whom

were selling drugs.

      In the interview, defendant initially said she was unaware

of any drugs in the apartment or drug sales from the apartment.

Later in the interview, she stated that, as a heroin addict, she

knew there was heroin in the apartment for her use, which she

got from Davila.            She also said that Justin and Llamar were

involved in the distribution of drugs from the apartment, and

that she knew Justin had drugs in the apartment, but that she

was   just     a     "user"    and     had       no    involvement   in    the     drug

distribution.

      The    trial       prosecutor    determined        that   defendant's      formal

statement did not sufficiently implicate her co-defendants, so

the State's "drug court plea offer was withdrawn."                        Later, the




                                             6                                A-0591-13T2
prosecutor gave notice that if defendant took the witness stand,

he would move to use "her attempted guilty plea against her for

impeachment purposes."     The trial court ruled the State could

not use the formal statement affirmatively in its case-in-chief,

but could use it for impeachment if defendant took the stand and

testified contrary to her formal statement.

    Defendant argues this ruling conflicted with N.J.R.E. 410.

N.J.R.E. 410 provides:

          Except as otherwise provided in this rule,
          evidence of a plea of guilty which was later
          withdrawn, of any statement made in the
          course of that plea proceeding, and of any
          statement made during plea negotiations when
          either no guilty plea resulted or a guilty
          plea was later withdrawn, is not admissible
          in any civil or criminal proceeding against
          the person who made the plea or statement or
          who   was    the    subject   of    the   plea
          negotiations.    However, such a statement is
          admissible (1) in any proceeding in which
          another statement made in the course of the
          same plea or plea discussions has been
          introduced and the statement should in
          fairness   be   considered   contemporaneously
          with it, or (2) in a criminal proceeding for
          perjury, false statement, or other similar
          offense, if the statement was made by the
          defendant under oath, on the record, and in
          the presence of counsel.

          [N.J.R.E. 410 (emphasis added).]

    On   its   face,   N.J.R.E.   410    precludes   the   admission   of

evidence of a statement made during plea negotiations, absent

exceptions not applicable here.        See State v. Williams, 184 N.J.




                                   7                            A-0591-13T2
432,    449    (2005)     (noting    that       "most    statements      made    during

criminal plea negotiations" under N.J.R.E. 410 "are generally

inadmissible in subsequent proceedings").

       The    drafters    of   N.J.R.E.     410     stated      that    it    "generally

follows Fed. R. Evid. 410" (eff. 1980) [hereinafter the Federal

Rule].        Biunno,     Weissbard    &    Zegas,       Current       N.J.    Rules    of

Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 410

(2015) [hereinafter Committee Comment].                    The pertinent language

in N.J.R.E. 410 is essentially the same as in the Federal Rule.4

By    following     the   Federal   Rule,       the     drafters   "expand[ed]         the

exclusion to include not only an accused's offer to plead guilty

but    also   any   statements      made    during       plea   negotiations,"         and

"effectively supersede[d]" our holding in State v. Boyle, 198

4
    In 1991, the Federal Rule provided, in pertinent part:

              Except as otherwise provided in this rule,
              evidence of the following is not, in any
              civil or criminal proceeding, admissible
              against the defendant who made the plea or
              was a participant in the plea discussions:
              . . . (4) any statement made in the course
              of plea discussions with an attorney for the
              prosecuting authority which do not result in
              a plea of guilty or which result in a plea
              of guilty later withdrawn.

              [Fed. R.     Evid.    410     (eff.       1980)   (emphasis
              added).]

The Federal Rule still provides that "evidence of the following
is not admissible[:] . . . (4) a statement made during plea
discussions[.]" Fed. R. Evid. 410 (eff. 2011).



                                            8                                   A-0591-13T2
N.J. Super. 64 (App. Div. 1984).               Committee Comment, supra;

accord   State    v.   Brabham,   413   N.J.   Super.    196,   207-08    (App.

Div.), certif. denied, 203 N.J. 440 (2010); State v. Malik-

Ismail, 292 N.J. Super. 590, 595 (App. Div. 1996).               In Boyle, we

refused to follow the Federal Rule and instead held that the

former New Jersey rule did "not prohibit introduction of the

accused's voluntary statements made during the plea negotiation

process."    Boyle, supra, 198 N.J. Super. at 68-73 (interpreting

Evid. R. 52(2)).

      N.J.R.E. 410 adopted the Federal Rule's rationale that "for

'plea bargaining to work effectively and fairly, a defendant

must be free to negotiate without fear that his statements will

later be used against him.'"        Brabham, supra, 413 N.J. Super. at

208 (quoting Boyle, supra, 198 N.J. Super. at 69 (quoting United

States v. Herman, 544 F.2d 791, 796 (5th Cir. 1977))).                 We have

applied N.J.R.E. 410 to bar admission "in the State's main case"

of   statements    made   by    defendants     during   plea    negotiations.

Malik-Ismail, supra, 292 N.J. Super. at 595; accord Brabham,

supra, 413 N.J. Super. at 200, 209-10.             No New Jersey case has

resolved    whether    such    statements    can   be   used    to   impeach    a

defendant's trial testimony.            Cf. State v. Mustaro, 411 N.J.

Super. 91, 98 n.3 (App. Div. 2009).




                                        9                              A-0591-13T2
    In deciding that issue, we consider case law under "the

source rule of N.J.R.E. 410," namely the Federal Rule.                         Malik-

Ismail, supra, 292 N.J. Super. at 597.                   The Courts of Appeals

had long ruled that "[t]he legislative history of these Rules is

quite clear that plea negotiation statements are not admissible

to impeach a defendant."          United States v. Mezzanatto, 998 F.2d

1452, 1454 (9th Cir. 1993), rev'd on other grounds, 513 U.S.

196, 115 S. Ct. 797, 130 L. Ed. 2d 697 (1995); accord, e.g.,

United States v. Acosta-Ballardo, 8 F.3d 1532, 1535 (10th Cir.

1993);    United   States   v.    Lawson,        683   F.2d   688,    692   (2d   Cir.

1982).      The United States Supreme Court, addressing both the

Federal    Rule    and   Fed.    R.   Crim.       P.   11(e)(6)      in   Mezzanatto,

"certainly agree[d] that the Rules give a defendant the right

not to be impeached by statements made during plea discussions."

United States v. Mezzanatto, 513 U.S. 196, 200 n.2, 115 S. Ct.

797, 801 n.2, 130 L. Ed. 2d 697, 703 n.2 (1995).

    Other States have followed the federal courts and "have

declined to fashion a general impeachment exception" to their

versions of the Federal Rule.                   See State v. Amidon, 967 A.2d

1126, 1134-35 (Vt. 2008) (listing cases).                     Given that N.J.R.E.

410 "was patterned after Fed. R. Evid. 410," we are similarly

persuaded    by    the   "history     of    the    federal     rule."       State   v.

Rodriguez, 280 N.J. Super. 590, 597 (App. Div. 1995).                         Such a




                                           10                                A-0591-13T2
reading accords with the above-stated rationale of both N.J.R.E.

410 and the Federal Rule, and "return[s] the parties to the

position      they   were    in    at    the    beginning      of    the"       plea

negotiations.        State v. Pennington, 154 N.J. 344, 362 (1998)

(quoting State v. Barboza, 115 N.J. 415, 427 (1989)).                     Thus, we

hold   that    N.J.R.E.     410   generally    prohibits    the     use    of   any

statement made during plea negotiations to impeach the person

making the statement.

       However, the United States Supreme Court in Mezzanatto went

on to consider whether a defendant could waive the protections

of the Federal Rule.        We were careful in Brabham, supra, to note

that "[n]either officer testified that defendant was told that

what he said would be used against him."                413 N.J. Super. at

204.    "Without any evidence that defendant was informed that the

officers and the assistant prosecutor attended the meeting to

collect incriminating statements to be used against defendant at

trial, the facts . . . required exclusion of the statements

pursuant to N.J.R.E. 410."           Id. at 208.      We thus consider the

resolution of that issue under the Federal Rule.

       The United States Supreme Court in Mezzanatto, supra, ruled

that the protections of the Federal Rule may be waived by a

defendant.     513 U.S. at 197, 115 S. Ct. at 800, 130 L. Ed. 2d at

702.     The    Court   stressed    that     "[a]   criminal    defendant       may




                                        11                                A-0591-13T2
knowingly and voluntarily waive many of the most fundamental

protections      afforded     by     the   Constitution,"        as   well   as    the

protection of statutes and procedural rules.                    Id. at 201-02, 115

S. Ct. at 801-02, 130 L. Ed. 2d at 704.                    This "presumption of

waivability" also applies to evidentiary rules, and the parties'

"agreements to waive evidentiary rules are generally enforceable

even over a party's subsequent objections."                     Id. at 202, 115 S.

Ct. at 802, 130 L. Ed. 2d at 704-05.                 The Court concluded that,

"like other evidentiary privileges, [the Federal Rule] may be

waived or varied at the defendant's request."                     Id. at 205, 115

S. Ct. at 803-04, 130 L. Ed. 2d at 707.

       The   Court    in   Mezzanatto      found    that   waiving     the   Federal

Rule's protections did not impair the reliability of the fact-

finding process.           Indeed, "[t]he admission of plea statements

for impeachment purposes enhances the truth-seeking function of

trials and will result in more accurate verdicts."                     Id. at 204,

115 S. Ct. at 803, 130 L. Ed. 2d at 706.

       The Court also found "no basis for concluding that waiver

will    interfere      with    the    Rules'       goal    of    encouraging      plea

bargaining."      Id. at 207, 115 S. Ct. at 804, 130 L. Ed. 2d at

707.     "[I]f       the   prosecutor      is   interested       in   'buying'     the

reliability assurance that accompanies a waiver agreement, then

precluding waiver can only stifle the market for plea bargains."




                                           12                                A-0591-13T2
Id. at 208, 115 S. Ct. at 805, 130 L. Ed. 2d at 708.                     "A sounder

way to encourage settlement is to permit the interested parties

to enter into knowing and voluntary negotiations without any

arbitrary limits on their bargaining chips."                Ibid.

       Accordingly, the United States Supreme Court in Mezzanatto

held    that,    "absent     some       affirmative    indication        that    the

agreement   was    entered       into   unknowingly    or    involuntarily,        an

agreement   to    waive    the    exclusionary      provisions      of   the    plea-

statement Rules is valid and enforceable."                  Id. at 210, 115 S.

Ct. at 806, 130 L. Ed. 2d at 710.

       Most State courts which have addressed the issue have found

the reasoning of Mezzanatto persuasive in interpreting their own

versions of the Federal Rule, and have ruled that defendants can

waive their rules' protections.               See, e.g., State v. Campoy, 207

P.3d 792, 803 (Ariz. Ct. App. 2009); People v. Stevens, 610

N.W.2d 881, 885-88 (Mich.), cert. denied, 531 U.S. 902, 121 S.

Ct. 240, 148 L. Ed. 2d 172 (2000); State v. Blom, 682 N.W.2d

578, 617 (Minn. 2004); Commonwealth v. Widmer, 120 A.3d 1023,

1027-28 (Pa. Super. Ct. 2015); State v. Wills, 700 S.E.2d 266,

268-69 (S.C. Ct. App. 2010), aff'd, 762 S.E.2d 3, 4 (S.C. 2014).5


5
  Cf. State v. Pitt, 891 A.2d 312, 326 (Md. 2006) (distinguishing
Mezzanatto because in Pitt the defendant's statements were used
in the prosecution's case-in-chief, and noting that applying
Mezzanatto "would undermine" prior Maryland case law holding
                                                      (continued)


                                         13                                A-0591-13T2
      We    believe    Mezzanatto's      persuasive    reasoning       is   equally

applicable     to     N.J.R.E.   410.         Accordingly,    we    hold    that     a

defendant can waive N.J.R.E. 410's protection against the use of

any   statement     made    during   plea      negotiations    to    impeach      the

person making the statement, and that such a waiver is valid and

enforceable absent an affirmative indication that the waiver was

entered into unknowingly or involuntarily.6

      The   Court     in   Mezzanatto,    supra,    found     waiver    where     the

prosecutor informed the defendant "that any statements he made

during the meeting could be used to impeach any contradictory

testimony he might give at trial if the case proceeded that

far," and the defendant after conferring with counsel "agreed to

proceed under the prosecutor's terms."               513 U.S. at 198, 115 S.

Ct. at 800, 130 L. Ed. 2d at 702.                Other courts have held that


(continued)
that admissibility turns on whether it was the defendant or the
State that "rescinded or breached the plea agreement").
6
  Defendant also cites Rule 3:9-2, which provides: "If a plea of
guilty is refused, no admission made by the defendant shall be
admissible in evidence against the defendant at trial."
However, Rule 3:9-2 protects "admissions made in a prior plea
proceeding."   Barboza, supra, 115 N.J. at 423.   It is N.J.R.E.
410 which protects out-of-court "statement[s] made during plea
negotiations."    Ibid.; see Pressler & Verniero, Current N.J.
Court Rules, comment 1.5.1 on R. 3:9-2 (2016).     To the extent
that Rule 3:9-2 applies to such out-of-court statements, the
reasoning of Mezzanatto would be equally applicable.         See
Mezzanatto, supra, 513 U.S. at 200-06, 115 S. Ct. at 801-04, 130
L. Ed. 2d at 703-07 (applying its reasoning to Fed. R. Crim. P.
11(e)(6)).



                                         14                                 A-0591-13T2
when    defendants    are    warned   during   plea   negotiations       that

anything they say may be used against them at trial, and the

defendants, with that understanding, proceed to make statements,

there is a waiver under Mezzanatto.         See, e.g., United States v.

Sylvester, 583 F.3d 285, 287-94 (5th Cir. 2009), cert. denied,

559 U.S. 916, 130 S. Ct. 1313, 175 L. Ed.               2d 1096 (2010);

Campoy, supra, 207 P.3d at 796, 802; Stevens, supra, 610 N.W.2d

at 883, 888; Widmer, supra, 120 A.3d at 1025, 1027-28; Wills,

supra, 700 S.E.2d at 267, 269, aff'd, 762 S.E.2d at 4.7             We agree

that the giving of such a warning can give rise to a waiver if

the    defendant,    with   that   understanding,   proceeds   to    give    a

statement.8


7
  These cases also find that a waiver after such a warning
enables the prosecution to use the defendant's statements in its
case-in-chief.   Ibid.; see also United States v. Mitchell, 633
F.3d 997, 1004-06 (10th Cir. 2011); United States v. Hardwick,
544 F.3d 565, 569-70 (3d Cir. 2008).     We need not reach that
question, as the State requested and the trial court granted
only use of the statement for impeachment.       See Mezzanatto,
supra, 513 U.S. at 211, 115 S. Ct. at 806, 130 L. Ed. 2d at 710
(Ginsburg, J., concurring) ("As the Government has not sought
such a waiver, we do not here explore this question.").
8
  As in Mezzanatto, such a warning may be sufficient even if it
does not explicitly mention Rule 410.     See United States v.
Young, 223 F.3d 905, 911 (8th Cir. 2000), cert. denied, 531 U.S.
1168, 121 S. Ct. 1133, 148 L. Ed. 2d 999 (2001); Stevens, supra,
610 N.W.2d at 888; cf. State v. Hinton, 42 S.W.3d 113, 124-26
(Tenn.   Crim.  App.  2000)   (finding  Miranda   warnings   were
insufficient because they did not mention Tennessee's version of
the Federal Rule).      However, a written proffer agreement
explicitly waiving N.J.R.E. 410 may enhance the clarity and
                                                      (continued)


                                      15                            A-0591-13T2
    Defendant makes three arguments why such impeachment should

not be allowed.   First, she contends that allowing impeachment

will discourage plea bargaining.       However, "[p]lea bargaining

has become firmly institutionalized in this State."       State v.

Means, 191 N.J. 610, 618 (2007) (quoting State v. Taylor, 80

N.J. 353, 360-61 (1979)).     As in the federal system, "the vast

majority of all cases are resolved through plea agreements with

the State."   State v. Munroe, 210 N.J. 429, 447-48 (2012).        As

explained in Mezzanatto, supra, "there is no reason to believe

that allowing negotiation as to waiver of the plea-statement

Rules will bring plea bargaining to a grinding halt; it may well

have the opposite effect."     513 U.S. at 209, 115 S. Ct. at 805,

130 L. Ed. 2d at 708-09.     Indeed, plea bargaining is flourishing

in the federal courts since Mezzanatto.      See Lafler v. Cooper,

__ U.S. __, __, 132 S. Ct. 1376, 1388, 182 L. Ed. 2d 398, 411

(2012) ("Ninety-seven percent of federal convictions . . . are

the result of guilty pleas").

    Moreover, waiver can occur only if both parties agree.         If

the parties have goals that can be "gained only by preserving



(continued)
enforceability of a waiver.     See State v. Diorio, 422 N.J.
Super. 445, 460 (App. Div. 2011) (quoting a proffer agreement in
which the defendant "knowingly and voluntarily waives any right
[the defendant] has pursuant to N.J.R.E. 410"), aff'd in part,
rev'd in part on other grounds, 216 N.J. 598, 609-10 n.4 (2014).



                                 16                        A-0591-13T2
the inadmissibility of plea statements, they will agree to leave

intact the exclusionary provisions of the plea-statement Rules."

Mezzanatto, supra, 513 U.S. at 208, 115 S. Ct. at 805, 130 L.

Ed. 2d at 708.

       Second, defendant argues such impeachment is unnecessary

and    should   not   be   allowed     because      N.J.R.E.   410    makes     a

defendant's statements during plea negotiations admissible "in a

criminal   proceeding      for   perjury."         However,    the    Court   in

Mezzanatto, supra, allowed waiver and impeachment even though

the Federal Rule similarly made such statements admissible "in a

criminal proceeding for perjury."             513 U.S. at 200 n.1, 115 S.

Ct. at 801 n.1, 130 L. Ed. 2d at 703 n.1 (quoting Fed. R. Evid.

410 (eff. 1980)).     The Court stressed that using such statements

for impeachment preserved the integrity of the verdict and the

trial process.    Id. at 204, 115 S. Ct. at 803, 130 L. Ed. 2d at

706.    If "the defendant has made a false statement, either to

the prosecutor during the plea discussion or to the jury at

trial[,] making the jury aware of the inconsistency will tend to

increase    the   reliability     of        the   verdict   without     risking

institutional harm to the [trial] courts."              Id. at 205, 115 S.

Ct. at 803, 130 L. Ed. 2d at 706; see also State v. Hawkins, 316

N.J. Super. 74, 82 (App. Div. 1998) (finding it reasonable to

relax N.J.R.E. 410 at sentencing "to rebut a contrary factual




                                       17                              A-0591-13T2
contention expressly or inferentially raised" by the defendant),

certif. denied, 162 N.J. 489 (1999).

       Moreover,    allowing   such    impeachment      is    supported     by    the

rulings of both our Supreme Court and the United States Supreme

Court permitting the use of even constitutionally-inadmissible

statements to impeach defendants' trial testimony.                    The United

States Supreme Court in Harris v. New York, 401 U.S. 222, 91 S.

Ct. 643, 28 L. Ed. 2d 1 (1971), and its progeny, has long

authorized such impeachment in order "'to prevent perjury and to

assure the integrity of the trial process.'"                 Kansas v. Ventris,

556 U.S. 586, 593, 129 S. Ct. 1841, 1846, 173 L. Ed. 2d 801, 808

(2009) (citation omitted).             Our Supreme Court has repeatedly

agreed.      See,   e.g.,   State     v.    Francis,   191    N.J.   571,    594-95

(2007); State v. Harris, 181 N.J. 391, 439-40 (2004), cert.

denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898

(2005); State v. Burris, 145 N.J. 509, 521-25 (1996); State v.

Irving, 114 N.J. 427, 438-39 (1989); State v. Miller, 67 N.J.

229,      232-34     (1975).           Those       cases      emphasized         that

"'inadmissibility would pervert the constitutional right into a

right   to   falsify   free    from    the      embarrassment   of   impeachment

evidence from the defendant's own mouth.'"                   Burris, supra, 145

N.J. at 523 (quoting Oregon v. Hass, 420 U.S. 714, 723, 95 S.

Ct. 1215, 1223, 43 L. Ed. 2d 570, 578 (1975)).




                                           18                               A-0591-13T2
       The    trial    court   relied      on   the    Harris   line    of    cases,

including Burris and Ventris, to create an impeachment exception

to N.J.R.E. 410.          As stated above, however, N.J.R.E. 410 does

not permit a defendant's statements during plea negotiations to

be     used    for    impeachment,    unless     the    defendant      waives      the

protections of the rule.           See also State v. Boone, 66 N.J. 38,

46-49 (1974) (declining to extend Harris and rejecting "the view

that withdrawn pleas are admissible to impeach the credibility

of the defendant who elects to testify at his trial").                    Thus, we

cannot affirm based on the grounds adopted by the trial court.

       It is well-established that a reviewing court can affirm a

decision on different grounds than those authorities offered by

the court being reviewed.            See, e.g., Shim v. Rutgers, 191 N.J.

374, 378 (2007); State v. Nellom, 178 N.J. 192, 196 (2003); Isko

v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968); see

State v. McLaughlin, 205 N.J. 185, 194-95 (2011).                       As stated

above, waiver under Mezzanatto provides an alternate basis for

affirmance.

       Here, we believe it is appropriate to remand to allow the

trial court and the parties to address in the first instance

whether       defendant   waived     the    protection     against     having      her

formal statement used for impeachment, as provided by N.J.R.E.

410.     See generally State v. Puryear, 441 N.J. Super. 280, 297,




                                           19                                A-0591-13T2
299 (App. Div. 2015) ("the question of whether Miranda rights

are knowingly, intelligently and voluntarily waived is a fact-

specific analysis," and appellate courts defer to trial courts'

factual findings).           Thus, we remand for a hearing conducted "in

light   of    the    principles         to   which    we    have   adverted."         Shim,

supra, 191 N.J. at 392.

       On remand, the trial court shall consider if defendant made

a knowing and voluntary waiver of the protection against having

her formal statement used against her at trial for impeachment.

The court shall consider whether defendant had the benefit of

advice of counsel, as in Mezzanatto.9                       If the court determines

that defendant did not waive that protection, it shall consider

whether its earlier ruling that defendant could be impeached

with her formal statement was harmless under R. 2:10-2.

       Defendant     claims       she    did    not    testify     after    that    ruling

because      her    formal    statement         was    highly      prejudicial.          Our

Supreme Court has recognized "the difficulty of characterizing

as harmless a trial court's error in ruling that the defendant's

prior convictions may be used for impeachment purposes" when

that    ruling      causes    a    defendant         not    to   testify.     State        v.

Whitehead, 104 N.J. 353, 359 (1986).                       Our Court noted that "the


9
  Here, we are not called upon to address a waiver agreement
entered into without the advice of counsel.



                                               20                                  A-0591-13T2
United States Supreme Court has stated that almost any error

would result in automatic reversal because 'the appellate court

could not logically term "harmless" an error that presumptively

kept the defendant from testifying.'"        Ibid. (quoting Luce v.

United States, 469 U.S. 38, 42, 105 S. Ct. 460, 463-64, 83 L.

Ed. 2d 443, 448 (1984)); see also State v. Singleton, 308 N.J.

Super. 407, 413-14 (App. Div. 1998) (finding plain error).             The

trial court should apply the same principles here.

          [At   the  direction   of  the   court,  the
          published version of this opinion omits Part
          III (which upholds the denial of defendant's
          motion to dismiss the indictment), Part IV
          (which upholds the denial of her motion for
          acquittal and rejects her challenge to the
          chain of custody), Part V (which rejects her
          challenge to the jury instruction), Part VI
          (which upholds the denial of her motion to
          suppress), and Part VII (which upholds the
          denial of her request to reveal the identity
          of the confidential informant).       See R.
          1:36-3.]

      Accordingly, we affirm the judgment of conviction, subject

to a remand for a hearing on whether defendant waived her right

to keep her formal statement from being used for impeachment.

We   reject   defendant's   other   arguments.   We   do   not    retain

jurisdiction.




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