                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-2734-16T7

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

MELVIN T. DICKERSON,

     Defendant-Respondent.
___________________________

              Argued May 23, 2017 – Decided July 5, 2017

              Before Judges Fasciale and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Complaint No.
              W-2017-170-1303.

              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).

              Cody T.      Mason, Assistant Deputy Public
              Defender,    argued the cause for respondent
              (Joseph E.   Krakora, Public Defender, attorney;
              Mr. Mason,   of counsel and on the brief).

PER CURIAM
     The State, on leave granted, appeals from a February 7, 2017

order denying its application to detain defendant pretrial because

the State failed to produce certain discovery.          The State also

appeals from a February 8, 2017 order denying its motion for

reconsideration.    We affirm the part of the orders that compelled

discovery, but reverse the denial of the application for pretrial

detention and remand for a hearing.

                                  I.

     On January 31, 2017, an Asbury Park police officer applied

for a warrant to search premises used by a barbershop and hair

salon business (the Barbershop).       That same day, a Superior Court

judge reviewed the application and issued a search warrant.             The

following   day,   law   enforcement   officers   executed   the    search

warrant.

     When the police officers entered the Barbershop, there were

four individuals present, including defendant Melvin T. Dickerson

and co-defendant Julius D. Franklin.        A search of the premises

revealed more than one-half ounce of suspected marijuana, a 9mm

sub-machine gun, a .38 caliber semi-automatic handgun, a stun gun,

various types of ammunition, two digital scales, a heat-seal

vacuum, a box of "Ziploc" vacuum sealer gallon bags, a RadioShack

Pro-94 radio suspected to be a police scanner, a cell phone, and

several documents and correspondence bearing defendant's name.

                                   2                               A-2734-16T7
     Defendant was arrested and charged with ten crimes: two counts

of second-degree possession of a firearm while in the course of

committing a narcotics offense, N.J.S.A. 2C:39-4.1(a); second-

degree unlawful possession of a machine gun, N.J.S.A. 2C:39-5(a);

third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b)(1); third-degree possession of a defaced handgun, N.J.S.A.

2C:39-3(d);    fourth-degree     unlawful   possession   of   a   stun      gun,

N.J.S.A. 2C:39-3(h); fourth-degree unlawful interception and use

of police emergency communications, N.J.S.A. 2C:33-21; fourth-

degree possession of over one-half ounce of marijuana, N.J.S.A.

2C:35-10(a)(3); third-degree possession of marijuana with the

intent to distribute, N.J.S.A. 2C:35-5(b)(11); and third-degree

possession of marijuana with intent to distribute in a school

zone, N.J.S.A. 2C:35-7(a).

     Co-defendant Franklin was also arrested and charged with

drug-related    and   weapons-related       offenses.     The     two     other

individuals who were present at the Barbershop when the search

warrant was executed were not charged with any crimes and were

released.

     The    State   moved   to   detain   defendant   pretrial    under      the

Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26.

Before the hearing, the State provided defense counsel with copies

of the complaints, the affidavit of probable cause, the preliminary

                                      3                                 A-2734-16T7
law enforcement incident report (PLEIR), defendant's criminal

history, the Public Safety Assessment (PSA), an incident report

prepared by one of the officers who executed the search warrant,

the arrest report, and the search warrant.

     The PSA assessed defendant's risk of failure to appear as

three on a scale of one to six, with one being a low risk and six

being a high risk.    The PSA also assessed defendant's risk of new

criminal activity as three, again on a scale of one to six.               The

PSA, therefore, recommended that defendant be released pretrial

on certain conditions, including monthly reporting.

     The detention hearing was scheduled to be held on February

7, 2017. At the beginning of the hearing, defense counsel informed

the trial court that the State had not produced the affidavit

filed in support of the search warrant and supporting investigative

reports   (collectively,    search       warrant   information).       After

confirming that defendant was seeking that information, the court

denied the State's application for defendant's detention without

conducting   a   hearing.   Instead,       the   court   ordered   defendant

released subject to seven conditions, including weekly reporting

and a prohibition of possessing dangerous weapons.

     The following day, on February 8, 2017, this court issued our

decision in State v. Robinson, 448 N.J. Super. 501 (App. Div.),

aff'd and modified, ____ N.J. ____ (2017).               That same day, the

                                     4                               A-2734-16T7
State   moved   for   reconsideration   of   the     order   denying   its

application to detain defendant pretrial.          The trial court heard

and denied the motion for reconsideration on February 8, 2017.

The court explained the reasons for its denial on the record and

issued an order stating that the State was required to produce the

search warrant information before the pretrial detention hearing

and, because it failed to do so, the State's application was denied

and dismissed "without the holding of a detention hearing."

     We granted the State's motion for leave to appeal.

                                 II.

     On appeal, the State argues:

          THE ORDER DENYING THE STATE'S MOTION FOR
          PRETRIAL DETENTION SHOULD BE REVERSED BECAUSE
          IT IS PREDICATED ON THE [TRIAL] COURT'S
          ERRONEOUS LEGAL CONCLUSION THAT RULE 3:4-
          2(c)(1)(B) AND ROBINSON REQUIRED THE STATE TO
          TURN OVER THE SEARCH WARRANT AFFIDAVIT IN
          ANTICIPATION OF THE PRETRIAL DETENTION HEARING

     In its brief on appeal, the State makes two related arguments

regarding the scope of pretrial detention discovery.           First, it

contends that the search warrant information does not fall within

the ambit of discovery called for under Rule 3:4-2(c)(1)(B).

Second, the State argues that Rule 3:5-6(c) makes the search

warrant information confidential and subject to disclosure only

after an indictment is issued or the State makes a pre-indictment

plea offer.     The State also argues that, as a sanction for not

                                  5                               A-2734-16T7
producing the discovery, the trial court erred in not holding a

hearing on the State's detention application.   We address each of

these arguments in turn.

     A.   Pretrial Detention Discovery

     The discovery that the State must produce when it seeks to

detain a defendant before trial under the CJRA is governed by Rule

3:4-2(c)(1)(B).   In February 2017, when the State sought to detain

defendant, the rule provided:

          [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).]

     Effective May 10, 2017, our Supreme Court modified and issued

a new version of Rule 3:4-2(c), which provides:

          (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


                                 6                          A-2734-16T7
                      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 N.J.S.A.
                      2A:162-18(a)(1)    that   the  State
                      advances at the hearing, and (v) all
                      exculpatory evidence.

           [State v. Robinson, supra, slip op. at 33.]


     In   Robinson,   the   Supreme       Court   addressed   the   scope    of

discovery to be provided by the State when it seeks the pretrial

detention of a defendant.      Id. at 29-32.          Initially, the Court

gave an overview of the CJRA and explained the purpose of pretrial

detention discovery.    Id. at 3-10.        The Court explained that at a

pretrial detention hearing, the State is required to present "both

some proof about the crime - - sufficient to establish probable

cause - - and proof relating to the risk of flight, danger, or

obstruction."   Id. at 27.   The Court then identified the interests

that were involved in the detention hearing and explained, "the

scope of the discovery rule in detention cases must reflect what


                                      7                               A-2734-16T7
is at stake." Ibid. Accordingly, the Court identified the State's

interest in public safety and the defendant's interest in his or

her liberty.   Ibid.   The Court also reasoned that a "discovery

rule should set forth a workable standard" that accounts for the

"tight timeframe" involved in a detention hearing.        Id. at 27-28.

     To balance those interests and aims, the Court identified

twelve principles that "should govern the disclosure of evidence

at a detention hearing[.]"   Id. at 29.   Those principles are:

          1. . . . [B]ecause the [CJRA] calls for a
          determination of probable cause and an
          assessment of the risk of danger, flight, and
          obstruction, which may include consideration
          of the nature and circumstances of the offense
          and the weight of the evidence, discovery
          should likewise be keyed to both areas. See
          N.J.S.A. 2A:162-18(a)(1); -19(e)(2); -20(a),
          (b).

          2.   The complaint must be disclosed.

          3.   The Public    Safety   Assessment   must   be
          disclosed.

          4.   The affidavit of probable cause must be
          disclosed. . . .

          5.   Any available PLEIR should be disclosed.

          6.   All statements and reports relating to
          the affidavit of probable cause should be
          disclosed. . . .

          7.   All statements or reports that relate to
          any additional evidence the State relies on
          to establish probable cause at the detention
          hearing should be disclosed. . . .


                                 8                              A-2734-16T7
          8.   Statements and reports related to items
          that appear only in the PLEIR need not be
          disclosed. . . .

          9.   Statements and reports relating to the
          risk of flight, danger, and obstruction,
          N.J.S.A. 2A:162-18(a)(1), which the State
          advances at the hearing, should be disclosed.
          . . .

          10. The phrase "statements and reports"
          refers to items that exist at the time of the
          hearing. The terms plainly include relevant
          police reports. . . .

          11. . . . [S]tatements and reports encompass
          reports that are in the possession of the
          prosecutor, law enforcement officials, and
          other agents of the State. . . .

          12. All    exculpatory          evidence    must     be
          disclosed.

          [Id. at 29-32.]

     In Robinson, the Court held that the State had to produce an

initial police report about the witnesses to an alleged murder,

including copies of the statements or reports of eyewitnesses.

Id. at 41.    The Court also held that when the eyewitnesses made

an   identification,   the   State       was   required   to   produce   the

information concerning the identification process, along with

copies of any photographs used in the identification process.

Ibid.   Finally, the Court held that the State need not disclose

surveillance videos.   Ibid.




                                     9                              A-2734-16T7
     "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).

Nevertheless, appellate review of the meaning of a court rule,

such as Rule 3:4-2(c), is de novo.      State v. Robinson, supra, slip

op. at 25.

     Applying the principles identified in Robinson and Rule 3:4-

2(c)(1)(B), we hold that the State needed to produce the search

warrant information, including the affidavit submitted in support

of that search warrant and all existing supporting investigative

reports leading to the search warrant application.           This result

is compelled by the language of Rule 3:4-2(c)(1)(B) and the sixth,

seventh, and tenth principles identified by the Supreme Court in

Robinson.    Id. at 30-32.

     In its original form, Rule 3:4-2(c)(1)(B) called for the

production   of   "all   statements    or   reports   in   [the   State's]

possession relating to the pretrial detention application."               As

revised by the Supreme Court in Robinson, the rule now calls for

the production of "all statements or reports relating to the

affidavit of probable cause . . . [and] all statements or reports

relating to additional evidence the State relies on to establish

probable cause at the hearing[.]"       Id. at 33



                                  10                               A-2734-16T7
     Under either version of the rule, the State was obligated to

produce the search warrant information.          Here, defendant was

charged with weapons-related and drug-related offenses based on

items seized pursuant to a search warrant.             Thus, the charges

depended not only on the items seized, but the validity of the

seizure of the items.     Moreover, the affidavit of probable cause

stated "PURSUANT TO THE EXECUTION OF A SEARCH WARRANT ON 02/01/2017

THE ACCUSED WAS ARRESTED AFTER BEING FOUND TO BE IN POSSESSION OF

SUSPECTED CDS, WEAPONS, AND CONTRABAND."       Accordingly, the search

warrant information should have been considered statements or

reports   relating   to   the   pretrial   detention    application   and

relating to the affidavit of probable cause.

     The State argues that the search warrant information was not

called for under Rule 3:4-2(c) because the State was relying only

on the items seized.      The items, however, were seized under a

search warrant and, if the search warrant were invalid, that would

affect the probable cause of the charges against defendant.           See

State v. Dispoto, 189 N.J. 108, 123 (2007) (holding that the

evidence obtained through an invalid search warrant constitutes

fruits of the poisonous tree and must be suppressed).         We are not

suggesting that a pretrial detention hearing should morph into a

suppression hearing.      Instead, we hold that when the State's

evidence is largely dependent on items seized under a search

                                   11                            A-2734-16T7
warrant, the affidavits submitted in support of the application

for the search warrant and related police reports are relevant

evidence relating to the issue of probable cause in a pretrial

detention hearing.



    B.   Rule 3:5-6(c)

    The State also argues that under Rule 3:5-6(c), the search

warrant information is confidential and is subject to disclosure

to defendant only at a later phase of the criminal process.    Rule

3:5-6(c) provides:

         All warrants that have been completely
         executed and the papers accompanying them,
         including the affidavits, transcript        or
         summary of any oral testimony, duplicate
         original search warrant, return and inventory,
         and   any  original   tape   or   stenographic
         recording shall be confidential except that
         the warrant and accompanying papers shall be
         provided to the defendant in discovery
         pursuant to [R.] 3:13-3 and available for
         inspection and copying by any person claiming
         to be aggrieved by an unlawful search and
         seizure upon notice to the county prosecutor
         for good cause shown.

    The State focuses on the reference to Rule 3:13-3 and contends

that because Rule 3:5-6(c) does not refer to Rule 3:4-2(c)(1)(B),

the State need only disclose a search warrant and the related

materials to defendant after an indictment is filed or unsealed




                               12                          A-2734-16T7
or if the State makes a pre-indictment plea offer.   We reject this

interpretation of Rule 3:5-6(c).

     Rule 3:5-6(c) provides that a search warrant and related

materials are confidential, subject to two exceptions.     The first

exception is that a criminal defendant has access to a warrant and

the accompanying papers as provided in Rule 3:13-3, which governs

criminal discovery.   Second, any person claiming to be aggrieved

by an unlawful search and seizure is entitled to inspect and copy

the papers accompanying a warrant on good cause shown.         Ibid.

Here, because defendant is seeking the information, we apply the

first exception.

     Rule 3:5-6(c), like Rule 3:13-3, must now be read in harmony

with Rule 3:4-2(c).   Accordingly, if any documents or information

are subject to disclosure under Rule 3:4-2(c), that rule controls

the timing of disclosure.

     To the extent that the State has confidentiality concerns,

such concerns can be addressed by applying for a protective order.

Indeed, the Supreme Court addressed this confidentiality issue in

State v. Robinson, supra, slip op. at 34.     In that regard, the

Supreme Court explained:

          In appropriate cases, the prosecutor "may
          apply for 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

                                13                           A-2734-16T7
          prosecutions,   undermine   the   secrecy   of
          informants and confidential information which
          the law recognizes, or compromise some other
          legitimate interest."   State in Interest of
          N.H., 226, N.J. 242, 256 (2016) (citing R.
          3:13-3(a)(1), (e)(1)). The prosecutor may
          bring an application directly to the judge who
          will preside over the detention hearing.

          [Id. at 34.]

     Here, the State did not seek a protective order.           Moreover,

the State made no argument that the search warrant information

contains confidential information or that the disclosure of the

information would expose witnesses or others to harm. Furthermore,

the State itself produced the search warrant.           While we reject

defendant's argument that the production of the search warrant

acted as a waiver of the confidentiality of the search warrant

information,   the   production   of   the   search   warrant   without    a

companion application for a protective order demonstrates that,

in this case, there were no confidentiality concerns.

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

State to produce to defendant the search warrant information before

the detention hearing.    Accordingly, we affirm the trial court's

order compelling that production.

     C.   The Appropriate Sanction

     Lastly, we address the appropriate sanction for a failure to

produce pretrial detention discovery.


                                  14                               A-2734-16T7
      The State is obligated to produce discovery under Rule 3:4-

2(c), and that obligation is not optional.            Moreover, the State

must comply with its discovery obligations in good faith.              State

v. Robinson, supra, slip op. at 35 (explaining that the State must

apply Rule 3:4-2(c) in "good faith").

      If the State fails to act in good faith or if the State

refuses to comply with a directive or order of the court, then it

is   subject   to   appropriate   sanctions    for    failure   to   produce

discovery.      Rule 3:13-3(f) authorizes a trial court to take

appropriate action when there has been a failure of compliance by

the State with its duty to disclose relevant information.                 The

rule provides,

             [i]f 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.

             [R. 3:13-3(f).]

      "The   choice   of   sanctions    appropriate   for   discovery-rule

violations is left to the broad discretion of the trial court."

State v. Marshall, 123 N.J. 1, 134 (1991), cert. denied, 507 U.S.

929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).          The trial court,

                                   15                                A-2734-16T7
however, needs to make specific findings and explain the reasons

for imposing a sanction.   State v. Clark, 347 N.J. Super. 497,

508-09 (App. Div. 2002) (quoting State v. Laganella, 144 N.J.

Super. 268, 282-83 (App. Div.), certif. denied, 74 N.J. 256

(1976)). "An adjournment or continuance is a preferred remedy

where circumstances permit."    Id. at 509.     Moreover, because

pretrial detention applications implicate public safety issues and

a defendant's civil liberties, the trial court's response to a

discovery issue should seek to accommodate both interests.      See

N.J.S.A. 2A:162-15.

     Accordingly, if the State has a good faith position for not

producing certain discovery, there should be a disclosure to

defendant, defense counsel, and the court.   The court should then

make a ruling and, if appropriate, direct the production of the

relevant discovery. If at that point, the State refuses to provide

the discovery, the court can fashion an appropriate sanction and

should explain the reasons for the sanctions imposed.   Moreover,

to the extent that there are legitimate discovery disputes, they

need to be addressed within the tight timeframes involved in a

pretrial detention application.     See N.J.S.A. 2A:162-19(d)(1)

(allowing the detention hearing to be continued for up to three

days upon the prosecutor's request or up to five days at the

defendant's request).   Consequently, candor and good faith by the

                               16                          A-2734-16T7
State is necessary and an intentional failure to comply with

discovery      obligations      is    an    appropriate    consideration         when

determining the sanction.

       Here,    the    trial    court      never   addressed     the   appropriate

sanction and never explained the reasons for imposing a sanction.

Instead, when the trial court was informed that the State had not

produced     the    search     warrant     information,    the    court,    without

holding a hearing, ordered defendant to be released on certain

conditions.        Thus, the court never gave the State the opportunity

to produce the search warrant information.                In the transcripts of

the proceedings held on February 7 and 8, 2017, there are hints

that   the     trial   court    had   previously      addressed    the     scope    of

discovery the State needed to produce before a pretrial detention

hearing.       The record, however, is insufficient to allow us to

evaluate whether the State was acting in good faith and whether

the court considered a sanction less than a denial of the State's

application for pretrial detention.                Consequently, we vacate the

portions of the orders that denied the State's application for

defendant's pretrial detention for failure to produce discovery

and we remand for a detention hearing.

       Affirmed in part, reversed in part, and remanded for further

proceedings.        We do not retain jurisdiction.



                                           17                                A-2734-16T7
