                        NOT FOR PUBLICATION WITHOUT THE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-2263-17T2

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

MARKEITH BRYSON,

        Defendant-Respondent.

___________________________________

              Argued May 31, 2018 – Decided July 12, 2018

              Before Judges Alvarez and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Burlington County, Indictment
              No. 17-07-0739.

              Jennifer     B.     Paszkiewicz,      Assistant
              Prosecutor, argued the cause for appellant
              (Scott   A.    Coffina,    Burlington    County
              Prosecutor,      attorney;     Jennifer      B.
              Paszkiewicz, of counsel and on the brief).

              Robert M. Perry argued the cause for
              respondent (Daniel M. Rosenberg & Associates,
              LLC, attorneys; Robert M. Perry, on the
              brief).

PER CURIAM
     We granted the State leave to appeal from an interlocutory

January 10, 2018 order suppressing the testimony of two of the

State's witnesses and the medical records of the victim pursuant

to Rule 3:13-3(f).     We reverse and remand.

     We glean the following facts from the record.            On March 1,

2017, police were dispatched to a location in Florence Township

after reports of a shooting.      Shortly thereafter, Burlington City

police stopped a vehicle being driven by Eugene Greshan.              During

the stop, police discovered he had been shot multiple times.             When

questioned   by    police   regarding   the   shooting,    Greshan    denied

knowing who shot him and was unwilling to acknowledge he was shot.

     On March 15, 2017, Albert Morton claimed to be an eyewitness

to the shooting and gave a videotaped statement to detectives

identifying defendant Markeith Bryson as the shooter.            On April

4, 2017, Nahjee Cox also claimed to be an eyewitness to the

shooting and gave a videotaped statement to detectives identifying

defendant as the shooter.

     On July 6, 2017, a grand jury indicted defendant for: first-

degree attempted murder, N.J.S.A. 2C:5-1(a)(1) and 2C:11-3(a)(1)

(count one); second-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(1)   (count   two);    third-degree   aggravated     assault,    2C:12-

1(b)(2) (count three); second-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count four); unlawful

                                    2                                A-2263-17T2
possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count five); and

fourth-degree      aggravated       assault,    2C:12-1(b)(4)      (count     six).

Defendant was detained pretrial with a scheduled release date of

January 6, 2018, pursuant to N.J.S.A. 2A:162-22.

     On       August   18,     2017,      defendant    demanded   discovery        of

audiovisual      tapes   and      transcripts   of    all   witness   statements.

During    a    September     5,    2017    pre-trial    conference,     defendant

informed the trial court the State had yet to provide audiovisual

tapes and transcripts of any witness statements. Defendant further

alerted the trial court and the State to this discovery issue in

his pretrial memorandum dated November 22, 2017.                  Defendant also

indicated the State failed to provide Greshan's medical records.

     On November 22, 2017, defendant again alerted the trial court

of the State's failure to provide the witness statements in any

form.    Two days later, the State provided defendant with the tapes

of the witness statements but no transcripts.               Trial was initially

set to commence on November 28, 2017, but was adjourned to January

3, 2018, at the State's request.

     The State conceded the witness statements were not sent for

transcription until November 28, 2017.                 Additionally, the State

did not subpoena Greshan's medical records until December 4, 2017.

     On January 2, 2018, only one day before trial, the State

provided defendant with the victim's medical records and the

                                           3                                A-2263-17T2
transcripts of three statements, including defendant's.                    The court

adjourned trial for one day for unrelated reasons.                   On January 4,

2018,    the   State     provided   defendant       with    transcripts      of      the

interviews given by Morton and Cox, but the latter was incomplete.

     A weather-related court closure delayed commencement of the

trial until January 5, 2018.1                 Defendant moved to exclude the

testimony of the other four individuals as well as Greshan's

medical records due to the State's failure to timely provide

discovery.      The trial court requested additional briefing and

heard further argument on January 9, 2018.                Defendant narrowed his

motion   to    exclude    only   the    testimony     of    Morton   and    Cox      and

Greshan's medical records.          The State represented it would not be

using    the   videotaped    statements        or   the    transcripts     of     those

statements in its case-in-chief.

     On January 10, 2018, the trial court granted defendant's

motion to exclude Morton and Cox's testimony and the victim's

medical records.       The judge found the State failed to comply with

the request for discovery," a point which "has not been contested

by the State," and the remedy for which "is within the broad

discretion of the [c]ourt."            The judge concluded exclusion of the


1
   Although defendant's speedy trial release date was scheduled
for January 6, 2018, he remained incarcerated because the trial
court determined trial had commenced.


                                          4                                     A-2263-17T2
testimony of Cox and Morton and the victim's medical reports was

the "appropriate remedy" for the State's failure to comply with

defendant's discovery requests.

       The judge specifically found: (1) "[t]he plain language of

[the    discovery]    rule   prohibits   the   late   production    of

transcripts"; (2) "defendant is prejudiced by the late production

of this discovery" because it "does not allow the defendant to

properly    prepare    for   cross-examination"   and   granting     a

continuance, as the State requested, "may result in a defendant

being incarcerated beyond the period that a trial would normally

take"; (3) "[g]ood cause for the late production is absent" as the

State had notice, as early as August 18, 2017, that it was required

to provide defendant with the tapes and transcripts of witness

statements thirty days prior to the trial date of November 28,

2017, yet failed to do so; (4) the materiality of the evidence not

properly disclosed during discovery led to "defendant's inability

to investigate while the trial [was] proceeding"; and (5) there

was "somewhat in this case a pattern about discovery and that the

alternative remedy of an adjournment would result in manifest and

harmful prejudice to the defendant."     The judge entered an order

reflecting his ruling on January 10, 2018.

       On January 11, 2018, the trial court granted the State's

motion for stay of trial and defendant's release pending appeal.

                                  5                          A-2263-17T2
We granted the State's emergent motion for leave to appeal and to

continue the stay of the trial court's ruling.2

     On appeal, the State raises the following point:

          [THE TRIAL COURT] ERRED IN CONCLUDING THAT
          EXCLUSION OF THE WITNESSES' TESTIMONY WAS THE
          APPROPRIATE REMEDY FOR THE STATE'S LATE
          PROVISION OF THE TRANSCRIPTS OF THE WITNESSES'
          OUT-OF-COURT STATEMENTS.

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

to substantial deference and will not be overturned absent an

abuse of discretion."   State v. Stein, 225 N.J. 582, 593 (2016).

This court "need not defer, however, to a discovery order that is

well 'wide of the mark,' or 'based on a mistaken understanding of

the applicable law.'" State v. Hernandez, 225 N.J. 451, 461 (2016)

(citation omitted) (quoting Pomerantz Paper Corp. v. New Cmty.

Corp., 207 N.J. 344, 371 (2011)).   Additionally, the "review of

the meaning or scope of a court rule is de novo" with no deference

"to the interpretations of the trial court . . . unless we are

persuaded by [its] reasoning." State v. Tier, 228 N.J. 555, 561

(2017) (citing Hernandez, 225 N.J. at 461).

     The State argues the trial court abused its discretion in

excluding Morton and Cox's testimony at trial.    We agree.




2
   The State does not appeal the exclusion of Greshan's medical
records.

                                6                             A-2263-17T2
     Rule 3:13-3(b)(1)(G) provides discovery shall include record

of statements, signed or unsigned, of witnesses and co-defendants

          which are within the possession, custody or
          control of the prosecutor and any relevant
          record of prior conviction of such persons.
          The   prosecutor   also   shall   provide the
          defendant    with     transcripts     of  all
          electronically   recorded    co-defendant and
          witness statements by a date to be determined
          by the trial judge, except in no event later
          than 30 days before the trial date set at the
          pretrial   conference,    but   only   if the
          prosecutor intends to call that co-defendant
          or witness as a witness at trial.

In turn, Rule 3:13-3(f) provides, in pertinent part:

          If at any time during the course of the
          proceedings it is brought to the attention of
          the court that a party has failed to comply
          with this rule or with an order issued
          pursuant to this rule, it may order such party
          to permit the discovery of materials not
          previously disclosed, grant a continuance or
          delay during trial, or prohibit the party from
          introducing in evidence the material not
          disclosed, or it may enter such other order
          as it deems appropriate.

     To be sure, the State should have provided the transcripts

by December 4, 2017.   However, a trial judge is not limited to

preclusion of the testimony as a remedy.   "The rule specifically

provides for discretion in formulating a sanction for a discovery

violation."   State v. Clark, 347 N.J. Super. 497, 509 (App. Div.

2001) (citations omitted).   In resolving discovery disputes and




                                7                          A-2263-17T2
imposing      sanctions,     "[a]n      adjournment    or    continuance        is     a

preferred remedy where circumstances permit."                 Ibid.

     It is well understood "the sanction of preclusion is a drastic

remedy and should be applied only after other alternatives are

fully explored[.]"       State v. Washington, 453 N.J. Super. 164, 190

(2018) (alteration in original) (quoting State v. Scher, 278 N.J.

Super. 249, 272 (App. Div. 1994)); see also State v. Dimitrov, 325

N.J. Super. 506, 511 (App. Div. 1999) ("[I]t is axiomatic that

'[b]efore invoking the ultimate sanction of barring a witness, the

court    should    explore        alternatives.'"     (second        alteration       in

original) (quoting State v. Volpone, 150 N.J. Super. 524, 530

(App. Div. 1977)); Zaccardi v. Becker, 88 N.J. 245, 253 (1982)

(explaining "although it is the policy of the law that discovery

rules be complied with, it is also the rule that drastic sanctions

should   be    imposed     only    sparingly").       However,       "repeated       and

flagrant derelictions" of discovery rules "may require application

of the sanction of preclusion." State v. Burnett, 198 N.J. Super.

53, 61 (App. Div. 1984).           When adjournment of the trial will avoid

the risk of prejudice resulting from untimely discovery, trial

courts     have   discretion       to    choose   that      option     rather     than

suppression.      See State v. Utsch, 184 N.J. Super. 575, 580 (App.

Div. 1982).

     Here, continuance, not exclusion, was the appropriate remedy.

                                          8                                 A-2263-17T2
          Exclusion of the testimony on the ground that
          the discovery rights of defendant were
          violated was not warranted.   Mindful of the
          general policy of admissibility, the judge
          should have availed himself of other means of
          protecting defendant from surprise.     Ample
          protection of defendant's interest could have
          been achieved by according defense counsel an
          opportunity to interview the complaining
          witness, by granting a brief continuance, or
          by some other procedure which would have
          permitted defense counsel to prepare to meet
          the evidence.

          [State v. Lynch, 79 N.J. 327, 335-36 (1979)
          (quoting State v. Moore, 147 N.J. Super. 47,
          51 (App. Div. 1977)).]

     The present circumstances favored granting a continuance

rather than excluding the testimony. First, defendant was provided

with copies of the videotaped statements on November 24, 2017,

some thirty-nine days before the January 3, 2018 trial date.

Second, defendant has now had well more than thirty days to prepare

cross-examination as a result of the stay of the trial court's

ruling pending appeal, eliminating any alleged prejudice.    Third,

the delay in providing the transcripts did not result from an

effort by the State to gain a tactical advantage.

     Furthermore, the trial court failed to address whether the

testimony of Morton and Cox "was so important that its exclusion

[would have] an effect on the fairness of the trial."   Washington,

453 N.J. Super. at 192 (alteration in original) (quoting State v.

Williams, 214 N.J. Super. 12, 22 (App Div. 1986)).   "The trial of

                                9                           A-2263-17T2
criminal cases involves important interests of the State, the

alleged victims, and the public, not just those of defendant

alone."   Ibid. (citations omitted).    Here, the State asserts it

is unable to prove its case if the testimony of Morton and Cox is

precluded.   Thus, the State will be forced to dismiss the charges

if the trial court's ruling stands.        Important public policy

reasons militate against this result.

     "We recognize that trial courts are vested with the discretion

to fashion an appropriate sanction for a violation of discovery

obligations."   State v. Richardson, 452 N.J. Super 124, 137 (App.

Div. 2017) (citing State v. Dabas, 215 N.J. 114, 141 (2013)).

However, under these circumstances, the trial court should have

ordered a continuance of trial, which would have allowed the State

to present, and the defendant to respond to, this important

testimonial evidence. By declining to do so, and instead excluding

the testimony, the trial court abused its discretion.

     Finally, we note N.J.S.A. 2A:162-22, the speedy trial section

of the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, did

not preclude a continuance of trial.    Washington, 453 N.J. Super.

at 193.   "'If the trial does not commence within' 180 days of

indictment, not counting excludable time, a defendant may be

entitled to the speedy trial statute's remedy: that 'the eligible

defendant shall be released from jail.'"    Ibid. (quoting N.J.S.A.

                                10                          A-2263-17T2
2A:162-22(a)(2)(a)).   Defendant may apply for release from jail

and, in response, the State may request excludable time under

N.J.S.A. 2A:162-22(b)(1)(g).   "Thus, the speedy trial statute was

not a basis for denying the continuance."   Ibid.   "[C]ourts should

consider discovery issues separately from speedy trial issues" as

it is "improper to impose a discovery sanction based on a perceived

failure to comply with the speedy trial statute."     Id. at 187.

     We reverse the order to the extent that it bars the testimony

of Morton and Cox and remand for trial.

     Reversed and remanded.




                               11                            A-2263-17T2
