                       RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-3669-16T7

STATE OF NEW JERSEY,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Appellant,                   June 20, 2017

v.                                        APPELLATE DIVISION

DOMINIQUE T. MOORE,

     Defendant-Respondent.
_________________________________

         Argued May 24, 2017 – Decided June 20, 2017

         Before Judges Accurso, Manahan and Lisa.

         On appeal from Superior Court of New Jersey,
         Law Division, Monmouth County, Complaint No.
         W-2017-000378-1303.

         Ian D. Brater, Assistant Prosecutor, argued
         the cause for appellant (Christopher J.
         Gramiccioni,  Monmouth  County   Prosecutor,
         attorney; Mr. Brater, of counsel and on the
         brief).

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

         Claudia   Joy   Demitro,    Deputy   Attorney
         General, argued the cause for amicus curiae
         Office of the 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 (Mr. Shalom, Edward L. Barocas and
            Jeanne M. LoCicero, on the brief).

            Mark A. Bailey, attorney for respondent
            Dominique T. Moore, joins in the brief of
            amicus   curiae  Office   of  the   Public
            Defender).

     The opinion of the court was delivered by

MANAHAN, J.A.D.

     In    this   appeal,    we    address   whether       the   Monmouth    County

Prosecutor's Office (MCPO)1          must produce a completed Preliminary

Law Enforcement Incident Report (PLEIR) when seeking pretrial

detention    of   a   defendant      under   the   Bail     Reform   Act     (Act),

N.J.S.A. 2A:162-15 to -26.            Consonant with our Supreme Court's

decision in State v. Robinson, ___ N.J. ___ (2017), and for the

reasons set forth herein, we conclude the production of a PLEIR

is not mandatory under the Act, Rule 3:4-2(c)(1), or the Office

of   the    Attorney       General,     Directive      Establishing         Interim

Policies,    Practices,      and     Procedures     to      Implement    Criminal

Justice Reform Pursuant to P.L. 2014, c. 31 (Oct. 11, 2016)

(Directive).

     On     March     9,     2017,     following       a     four-year        police

investigation, a complaint-warrant was issued against defendant,

1
  For ease of reference and clarity, we utilize MCPO as inter-
changeable with "State" when that word is referenced in the
opinion.



                                        2                                   A-3669-16T7
Dominique Moore, charging him with first-degree murder, N.J.S.A.

2C:11-3a(1), and second-degree possession of a firearm for an

unlawful purpose, N.J.S.A. 2C:39-4a(1).          The MCPO filed a motion

for pretrial detention on March 10, 2017, and provided discovery

to defendant,

           including    the    complaint-warrant,    the
           affidavit of probable cause, the Public
           Safety   Assessment   [(PSA)],  five   police
           reports, one arrest report, one fifteen-page
           CAD report, [fourteen] witness statements,
           five consent-to-search forms, a photo array
           packet, three grand jury transcripts, two
           search warrants, two Miranda2 forms, an
           eight-page transcript of 911 recordings,
           seven DVDs containing surveillance videos,
           defendant's criminal history, defendant's
           video-recorded interview, and a photograph
           of the defendant.

The MCPO also provided defendant a blank PLEIR.

     On March 13, 2017, defendant moved before a Law Division

judge for an order to compel the MCPO to provide a completed

PLEIR.     Defendant's attorney provided a certification stating

that he had attended a meeting on March 4, 2017, at which the

Monmouth   County   Prosecutor   advised   the    participants   that   he

"intended to instruct police departments not to complete the




2
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).




                                   3                             A-3669-16T7
PLEIR."3       The   certification      stated     that     the    Mercer    County

Prosecutor was also "advancing this procedure."

       On March 17, 2017, relying on our recent decision in State

v. Robinson, 448 N.J. Super. 501, 519-20 (App. Div.), aff'd in

part, mod'd in part, ___ N.J. ___ (2017), the judge granted

defendant's motion.        The judge found that the MCPO's refusal to

produce a completed PLEIR "not only [went] against the holding

in Robinson and the language of the PLEIR,4 but also ignore[d]

the    past   practice   of   the    MCPO   over   a   two[-]month     period       to

produce completed PLEIRs as well as its express representation

in Robinson that it was obligated to produce the PLEIR."                          The

judge also held that "the State should be judicially estopped

from    now    asserting      that    production       of    the    PLEIR      [was]

discretionary."


3
  The State acknowledged in its brief and at oral argument that
this instruction was given by the Monmouth County Prosecutor and
for that reason, a PLEIR was not completed for defendant. Upon
the judge's decision to compel the PLEIR, the Prosecutor stayed
his instruction pending the outcome of the appeal.
4
  The judge also relied on language in Robinson, supra, 448 N.J.
Super. at 504 n.2, stating that "[o]n 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." However, the language on the face of the document
states that the PLEIR "is designed to be appended to, and is
expressly incorporated by reference in, the Affidavit of
Probable Cause." The Court in Robinson, supra, slip op. at 40-
41, directed the AOC to remove this language from the PLEIR
form.



                                        4                                   A-3669-16T7
       The judge granted the State's motion for a stay of the

order to compel production of the PLEIR until March 20, 2017.

Subsequently, we denied the State's emergent application seeking

to appeal the discovery order.                 Thereafter, the MCPO filed an

application for emergent relief with the Supreme Court.

       On March 20, 2017, the Court extended the trial court's

temporary stay of its discovery order pending further order of

the Court.     The next day, the Court granted the application for

emergent relief and remanded the matter to this court to permit

the    MCPO   to   file   an     emergent      motion    for    leave   to   appeal.

However, the Court denied the MCPO's request for a stay of the

trial court's order "in the interest of proceeding expeditiously

with defendant's pretrial detention hearing."                    The Court vacated

the    temporary   stay     of   the     trial    court's      order   holding   that

"[t]his disposition is without prejudice to the State's ability

to file an emergent motion for leave to appeal to challenge the

merits of the discovery order, which presents a recurring legal

issue of public importance that would otherwise evade review."

       On March 22, 2017, the judge granted the MCPO's motion for

pretrial detention of defendant.5                On March 23, 2017, we granted

the MCPO's application for leave to file an emergent motion in

accordance     with   the      Court's    order.        Thereafter,     we   granted

5
    Defendant has not appealed the pretrial detention order.



                                           5                                 A-3669-16T7
motions by the Attorney General (AG), the Office of the Public

Defender (OPD), and the American Civil Liberties Union (ACLU) to

appear as amici.6

      On appeal, the MCPO argues that the language of Rule 3:4-

2(c)(1) does not require law enforcement officers to complete a

PLEIR and that the discovery provided to defendant satisfied the

Rule's requirement.        The MCPO further argues that while the

Directive encourages the use of the PLEIR, it does not mandate

its use.     Additionally, the MCPO contends that, even if the

Directive mandated the use of the PLEIR, its non-enforceability

clause bars third parties from enforcing any of the provisions.

The MCPO also argues that the trial court improperly invoked

judicial estoppel to bar it from asserting that use of the PLEIR

is discretionary.

      The AG argues that, although the Directive encourages the

use   of   the   PLEIR,   the   report   is   not   mandatory   under   the

Directive, under Robinson, or under the court rules.            Disputing

that judicial estoppel should apply, the AG notes that "neither

the State nor the Attorney General took the position [before]

the Appellate Division or the Supreme Court [in Robinson] that




6
  Defendant did not file a separate brief and relies on the
amicus brief of the OPD.



                                     6                            A-3669-16T7
the State's 'discovery obligation was limited to producing the

probable cause affidavit and the PLEIR.'"

      The   OPD   counters      by    arguing   that   the     Monmouth     County

Prosecutor's      order    directing     the     police   to     dispense     with

completing a PLEIR in all cases violates both Rule 3:4-2(c)(1)

and the Directive.         While noting the production of a PLEIR is

not expressly mandated, the OPD argues that the history of the

Rule illustrates the drafters' intent to require its creation,

and   production.         The   OPD    rests    its   argument    on   the    word

"available," insisting that production of the PLEIR is necessary

to ensure that pretrial detention hearings are fair.                   Moreover,

they maintain that in the interest of due process, the Rule

should be interpreted to require the disclosure of a completed

PLEIR.

      The ACLU likewise acknowledges that the Directive does not

expressly command the production of a PLEIR, but argues that the

AG's intent to have law enforcement officers provide completed

PLEIRs to prosecutors is clear from the Directive.                     The ACLU

accuses the MCPO of "game playing" by its determination not to

create a PLEIR.      Further, the ACLU argues the PLEIR functions as

a "table of contents," providing a map for the court and the

defendant as to the provided, as well as missing, discovery.




                                         7                                A-3669-16T7
    Our     discussion   commences   by   addressing   our    standard     of

review.      "We accord substantial deference to a trial court's

issuance of a discovery order and will not interfere with such

an order absent an abuse of discretion."           State v. Hernandez,

225 N.J. 451, 461 (2016) (citing State ex rel. A.B., 219 N.J.

542, 554 (2014)).      Thus, we "defer to a trial court's resolution

of a discovery matter, provided its determination is not so wide

of the mark or is not 'based on a mistaken understanding of the

applicable    law.'"     A.B.,   supra,   219   N.J.   at    554   (quoting

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371

(2011)).

    Our decision is governed by our Court's recent decision in

Robinson.     In Robinson, supra, slip op. at 26, the Court defined

the PLEIR:

                 The PLEIR is "an electronic document
            that   succinctly    describes   the   relevant
            factual    circumstances"    relating    to   a
            defendant's arrest.       [Directive at 48.]
            PLEIRs    are    designed    to   enable    law
            enforcement officers to prepare them quickly
            and easily. Id. at 49. The electronic form
            lists    "commonly    occurring    facts    and
            circumstances" that officers may select,
            including whether law enforcement officers
            or other eyewitnesses observed the offense,
            whether   the   defendant   made   a   recorded
            admission, what type of weapon was involved,
            and   whether   any   physical   evidence   was
            recovered, among other things.      Id. at 49-
            51.




                                     8                             A-3669-16T7
    The Court enunciated several principles that should "govern

the disclosure of evidence at a detention hearing" including

that "[a]ny available PLEIR should be disclosed."                 Robinson,

supra, slip op. at 38-39.          "With those principles in mind, and

based   on    what   we    have   learned   from   the   Rule's   practical

application" since its effective date, the Court clarified and

revised Rule 3:4-2(c)(1) as follows:

             (c) Procedure in Indictable Offenses.   At
             the defendant's first appearance before a
             judge, if the defendant is charged with an
             indictable offense, the judge shall

                 (1) give the defendant a copy of the
                 complaint, discovery as provided in
                 subsections (A) and (B) below, and
                 inform the defendant of the charge;

                          (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 the
                          affidavit of probable cause;

                          (B) if the prosecutor is seeking
                          pretrial detention, the prosecutor
                          shall provide the defendant with
                          (i)   the   discovery  listed   in
                          subsection (A) above, (ii) all
                          statements or reports relating to
                          the affidavit of probable cause,
                          (iii) all statements or reports
                          relating to additional evidence
                          the State relies on to establish
                          probable cause at the hearing,
                          (iv) all statements or reports
                          relating to the factors listed in



                                      9                            A-3669-16T7
                     N.J.S.A. 2A:162-18(a)(1) that the
                     State advances at the hearing, and
                     (v) all exculpatory evidence.

          [Id. at 41-42.]

In hewing to the Court's decision in Robinson, we conclude the

plain language of amended Rule 3:4-2(c)(1)(B) does not impose a

requirement upon law enforcement officers to prepare a PLEIR or

upon prosecutors to provide defendants with a PLEIR if one has

not been prepared.   In reaching our decision, we emphasize that

our holding does not implicate a diminution of a prosecutor's

discovery obligation pursuant to that Rule.7

     Finally, we neither address nor predict what impact blanket

determinations by a Prosecutor regarding the preparation of the

PLEIR may have on the conduct of detention hearings.       We add

only what the majority in Robinson noted about the utility of

the document developed by the AG:

          The PLEIR is designed to get the parties
          information they need about categories of
          evidence in a case at the very earliest
          stage.   Prosecutors, defendants, and judges
          alike benefit from that approach.   It helps
          the parties prepare for the hearing and make
          a preliminary assessment of the overall
          case.    The current court rules call for
          disclosure of the PLEIR only in non-
          detention cases.    R. 3:4-2(c)(1)(A).   The

7
  Although not raised in the briefs, it was noted at oral
argument that since the MCPO is able to provide defendants with
police reports prior to the detention hearings, the preparation
and production of the PLEIR is unnecessary.



                                10                        A-3669-16T7
    rules should create an incentive to prepare
    a PLEIR in detention cases as well.

    [Id. at 38.]

Reversed.




                        11                        A-3669-16T7
