                                     RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2618-18T1

STATE OF NEW JERSEY,

         Plaintiff-Appellant,

v.

JOHN JACOBS,

     Defendant-Respondent.
_____________________________

                   Argued July 9, 2019 – Decided October 30, 2019

                   Before Judges Nugent and Accurso.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Mercer County, Indictment No.
                   16-08-0707.

                   Randolph E. Mershon, III, Assistant Prosecutor,
                   argued the cause for appellant (Angelo J. Onofri,
                   Mercer County Prosecutor, attorney; Randolph E.
                   Mershon, III, on the brief).

                   Douglas R. Helman, Assistant Deputy Public
                   Defender, argued the cause for respondent (Joseph E.
                   Krakora, Public Defender, attorney; Douglas R.
                   Helman, of counsel and on the brief).
PER CURIAM

      The State appeals on leave granted from a pretrial discovery order,

entered after in camera review, directing it to turn over six items from an

unrelated case file that the trial judge deemed discoverable and specifically

relevant to testimony the State sought from a cooperating witness pursuant to

N.J.R.E. 404(b). Finding no abuse of discretion, we affirm.

      Given the stage of the proceedings, the facts are sketchy. Here is what

we know. Defendant John Jacobs was indicted for assaulting his girlfriend .

While detained in the Mercer County jail, he allegedly approached a fellow

inmate about having the victim killed to avoid her testifying. That inmate,

now a cooperating witness, reported the conversation to the prosecutor's office

and provided investigators with a map of the victim's home and the security

code for her alarm system. Before the prosecutor's office could arrange to

introduce an undercover agent into the jail to investigate, defendant allegedly

changed his mind, suspecting the cooperating witness was a "snitch."

      The State made a pretrial motion under N.J.R.E. 404(b) to admit

evidence from the cooperating witness that defendant had solicited him to kill

defendant's girlfriend, alleging it demonstrated consciousness of guilt. As a

result of that motion, defendant learned the cooperating witness claimed


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                                       2
another pretrial detainee, held on charges of assaulting his wife, had also

solicited the cooperating witness to kill that victim in order to prevent her from

testifying. The cooperating witness described both solicitations in the same

recorded statements to the prosecutor's office.

      Defendant responded with a motion for the State to produce "all reports,

statements, plea papers, cooperation agreements, the cooperating witness's

criminal history and any other discovery from the State regarding the

cooperating witness," asserting it was "relevant and material" to his credibility

and to the court's decision on the Rule 404(b) motion. Defendant argued "[t]he

fact that the cooperating witness is or has cooperated in other matters to obtain

a benefit, and offered the same or similar allegations [against] other

[d]efendants goes directly to the credibility of this State's witness and can be

used for impeachment purposes."

      The State opposed the motion, arguing defendant was only entitled under

Rule 3:13-3 and State v. Hernandez, 225 N.J. 451 (2016), to the discovery

materials it had already turned over pursuant to protective order; that is, the

identity of the cooperating witness, his criminal history, including his twenty-

six prior judgments of conviction, the two recorded statements he made to the

prosecutor's office redacted to exclude the witness's references to the unrelated


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                                       3
case, the fact that the witness was released from jail after making those

statements, and the State's representation that it had no cooperation agreement

with the cooperating witness and was not aware of any materially false

statements made by the witness.

      While continuing to oppose the motion, the State, nevertheless, provided

the court with twenty-two items from the unrelated case for in camera review.

Following that review, the trial court deemed six of the twenty-two items

relevant to the evidence the State was seeking to introduce in defendant's case

through the cooperating witness under N.J.R.E. 404(b), and ordered those

documents produced. Specifically, the court ordered the State to produce the

indictment in the unrelated case, two investigation reports, two paragraphs of

the affidavit for wiretap to obtain jail recordings of the defendant in the

unrelated case, and the unredacted recordings of the cooperating witness's two

statements to the prosecutor's office.

      In explaining his reasons, the judge noted New Jersey's commitment to

broad discovery in criminal cases in service of the goals of fair trials and the

search for truth reflected in the court rules, see State ex rel A.B., 219 N.J. 542,

555 (2014), and the trial court's inherent power to order discovery beyond that

provided in the rules when necessary to permit the accused to mount an


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                                         4
effective defense, State ex rel W.C., 85 N.J. 218, 221-22 (1981). Relying on

the State's obligation to disclose "material evidence affecting [the] credibility"

of a State's witness, when that witness's credibility "may well be determinative

of guilt or innocence," State v. Carter, 69 N.J. 420, 433 (1976), the court found

"the strikingly similar facts" of these two solicitations the cooperating witness

relayed to the prosecutor's office was "certainly relevant to the credibility of

the State's confidential witness and to Mr. Jacobs' defense" under Hernandez.1

The court subsequently denied the State's motion for reconsideration but

stayed its order to permit this appeal.

      We generally accord substantial deference to discovery orders of the trial

court, reviewing them only for abuse of discretion. Hernandez, 225 N.J. at

461. The State argues the trial court sanctioned a fishing expedition by

defendant in ordering production of "irrelevant documents in an unrelated

case" based solely on the "'strikingly similar facts' and charges." It contends

1
  In distinguishing Hernandez, the State notes the trial court erred in stating
the identity of the cooperating witness was not disclosed to the defense in that
case as it was here. We acknowledge the error, but note what we believe to
have been the court's larger point, that is, in Hernandez, the State had concerns
over the safety of the cooperating witness whose identity had not been
disclosed in all the unrelated investigations in which he participated because
some of those investigations did not result in charges and others were resolved
without trials. The State has not asserted any specific risks to the cooperating
witness here arising from his assistance in these two matters.


                                                                         A-2618-18T1
                                          5
the order is directly contrary to the holding in Hernandez, and if allowed to

stand will make any case in which a cooperating witness or confidential

informant has provided information to the State "with 'strikingly similar facts'

and charges that stem from the witness's cooperation" discoverable to the

defense. We disagree.

      The State's argument ignores the critical distinction between this case

and Hernandez. In Hernandez, the trial court reviewed the requested

documents in camera and "concluded that the information produced was not

relevant or admissible in [the] defendants' case," but ordered it produced

anyway. Id. at 457. Here, after reviewing twenty-two documents in camera,

the court determined that six were relevant to defendant's case, and specifically

relevant to the State's effort to admit the testimony of the cooperating witness

under N.J.R.E. 404(b) as evidence of defendant's consciousness of guilt. The

court did not order production of any item it deemed irrelevant. 2 We thus


2
   Despite having been granted permission in the order for leave to appeal to
file the discovery materials the motion court reviewed in camera in a separate
confidential appendix, the State has not provided us any of those documents.
We take that to mean the State is not seeking our review of the trial court's
determination that the six documents ordered produced are relevant to
defendant's case, which we obviously could not do without reviewing the
documents. See Noren v. Heartland Payment Sys., 448 N.J. Super. 486, 500
(App. Div. 2017) (dismissing a cross-appeal based on the failure to submit the
                                                                      (continued)
                                                                        A-2618-18T1
                                       6
reject the State's argument that the trial court has permitted defendant to

"rummag[e] through irrelevant documents" in unrelated cases contrary to

Hernandez. Id. at 463.

      We also reject the argument that allowing this order to stand will make

any case in which a confidential informant has provided information to the

State with "'strikingly similar' facts and charges that stem from the witness's

cooperation" discoverable. The State's case here is not based on a cooperating

witness who made controlled drug buys in a number of criminal investigations

resulting in similar charges against different defendants based on "strikingly

similar" transactions. The cooperating witness in this case was a pretrial

detainee in the Mercer County jail who was released after telling prosecutors

that two fellow detainees, each charged with aggravated assault against an

intimate partner, solicited him to kill their respective partners to prevent them

from testifying.

      As the trial court explained, besides the charges each defendant was

facing, the "strikingly similar facts" here included "the circumstances of the



(continued)
evidence reviewed by the trial court), certif. granted on other grounds, 230 N.J.
499 (2017), fee award vacated and remanded, 2019 N.J. LEXIS 7 (Jan. 12,
2018).


                                                                         A-2618-18T1
                                       7
[cooperating witness] engaging with each defendant, and the alleged services

that the [cooperating witness] was to provide to each of them, including the

alleged method of attack." Besides the coincidence of two fellow detainees

seeking out the same cooperating witness in death by hire plots, the trial court

found "[e]ven more relevant," that the cooperating witness "was speaking with

these defendants at the same time, in the same facility, and relaying

information to detectives in the same interview."

      Given the unusual factual scenario, we seriously doubt this order strikes

at the heartland of cases involving confidential informants. We are satisfied

the trial judge viewed this case on its own facts, determining the limited

documents he ordered produced from the unrelated case file were "relevant to

the credibility of the State's confidential witness and to Mr. Jacobs' defense ,"3

and thus appropriately discoverable in the interest of justice. See A.B., 219

N.J. at 555. We find no abuse of discretion.

      Affirmed.

3
  Because the State has not submitted the contested documents on appeal or
made any specific argument as to their relevancy, we have no occasion to
consider how they could be used to impeach the cooperating witnesses'
testimony under N.J.R.E. 405 and N.J.R.E. 608, including proposed changes to
the latter scheduled to go into effect next year, Notice to the Bar, Adoption of
Amendments to the New Jersey Rules of Evidence (Sept. 16, 2018), and State
v. Scott, 229 N.J. 469 (2017).


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