                             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                        NOT FOR PUBLICATION WITHOUT THE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-2805-15T1


STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

MICHAEL A. DOTRO,

        Defendant-Respondent.

_______________________________________

              Argued October 27, 2016 – Decided February 27, 2017

              Before Judges Hoffman and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment
              No. 14-06-0755.

              Nancy A. Hulett, Assistant Prosecutor,
              argued the cause for appellant (Andrew C.
              Carey, Middlesex County Prosecutor,
              attorney; Russell J. Curley, Assistant
              Prosecutor, and Ms. Hulett, of counsel and
              on the brief).

              Robert T. Norton argued the cause for
              respondent.


PER CURIAM
     The State, through the Middlesex County Prosecutor's Office

(MCPO or State), challenges a July 20, 2015 Law Division

decision allowing defendant Michael A. Dotro's expert to inspect

a truck in the MCPO's possession out of the presence of the

State.1   Finding the court exercised its sound discretion, we

affirm the trial court's decision, but remand the matter to add

certain provisions to the remedy the trial court ordered.

                                 I

     Following the investigation of an early morning fire at the

home of Mark Anderko, a captain in the Edison Police Department,

defendant Michael Dotro was indicted for second-degree

aggravated arson, N.J.S.A. 2C:17-1(a); five counts of first-

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

third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1); third-

degree unlawful possession of a destructive device, N.J.S.A.

2C:39-3(a); fourth-degree retaliation for past official action,

N.J.S.A. 2C:27-5; and third-degree hindering apprehension or

prosecution, N.J.S.A. 2C:29-3(a)(7).   Defendant's wife, Alycia

Dotro, was also indicted for fourth-degree hindering

apprehension or prosecution, N.J.S.A. 2C:29-3(a)(7).



1
    There is no written order. The terms of the Law Division's
decision are set forth on the last two pages of the July 20,
2015 written decision.
                               2
                                                           A-2805-15T1
    During its investigation, the MCPO discovered the

following.   The fire started between 3:00 a.m. and 4:00 a.m.       At

the site of the fire, the MCPO found two plastic, one-gallon

jugs on Anderko's front porch.     The jugs smelled of gasoline,

and the remnants of blue rags were found in each.     The

investigators suspected the fire was started by igniting the

rags, which served as wicks.     One jug had a QuickChek and the

other a Pocono Springs label.    Also found at the scene were

towels and hair samples.     Approximately one month before the

fire, defendant, an officer in the Edison Police Department, was

angry at Anderko for putting him on an undesirable shift as a

form of discipline.

    During the execution of a search warrant of defendant's

home, the MCPO found blue rags and towels similar to those found

at the crime scene, a five-gallon jug containing approximately

two-and-a-half gallons of gasoline, and empty one-gallon water

jugs smelling of gasoline.     One of these empty jugs had a Pocono

Springs label on it; another was not labeled but was determined

to have come from QuickChek.     A QuickChek label was found in a

wastebasket in defendant's home.     Some of the towels recovered

from the crime scene were surgical towels, which matched those

used by a surgical center where defendant's wife worked.

Located under the front seat of defendant's 2001 Dodge Ram
                                3
                                                            A-2805-15T1
pickup truck was a blue rag similar to those found at the crime

scene; the rag smelled of gasoline.

     Review of a QuickChek surveillance video near Anderko's

home showed, minutes before the fire erupted at his home, a

dark-colored pickup truck made a right turn out of the QuickChek

parking lot and headed in the direction of Anderko's residence.

In order to get to defendant's home, one would make a left turn

out of the parking lot.     The video further revealed a dark-

colored truck drive by the QuickChek in the opposite direction

toward defendant's home fifteen minutes later.     Investigators

timed the drive from the QuickChek to Anderko's home and back

again to the QuickChek, pausing one minute at Anderko's home,

the estimated time the perpetrator expended to place and ignite

the rags in the two jugs.     The round trip took fifteen minutes

and thirty-three seconds.

    Some of the evidence uncovered by the MCPO tended to favor

defendant or diminished the significance of the State's

evidence.   Of the two hair samples recovered at the crime scene,

one was lost and the other did not match defendant's hair.       A

fingerprint recovered from one of the jugs found at Anderko's

home did not belong to defendant.     Defendant kept gasoline at

his home to power his snow blower and generator, providing a

reason he stored gasoline in his home.     One taking the most
                                4
                                                           A-2805-15T1
direct route from Anderko's to defendant's home would not pass

by the QuickChek.

    After viewing the QuickChek surveillance video, defendant

filed a motion to permit him and his expert to examine

defendant's truck, which remains in the possession of the MCPO,

out of the presence of law enforcement personnel.    The State

objected, arguing a representative from the MCPO needed to be

present, so the State could account for the truck's chain of

custody and protect the integrity of the evidence.

    In support of his motion, defendant submitted a letter to

the trial court, ex parte, explaining his reasons for examining

the truck out of the presence of the MCPO staff.     After

reviewing that letter, the trial court determined permitting any

representative of the MCPO to be present during defendant's

examination would compromise defendant's ability to prepare a

defense.

     Specifically, the court found a MCPO representative would

be able to discern from defendant's expert's examination the

"nature of [defendant's] defense."   Therefore, the presence of a

MCPO representative would impermissibly inhibit defendant from

preparing a defense.   The court also took into consideration

defendant consented to waive any claim the chain of custody was

interrupted or compromised, and further agreed to videotape the
                                5
                                                             A-2805-15T1
entire examination so there would be a record available to the

State if it found or suspected the truck had been altered during

his examination.   After weighing the competing interests of the

parties, the court found defendant's need to prepare a defense

outweighed the State's concerns about the interruption in the

chain of custody, and granted defendant's motion.   However, the

court imposed the following conditions:

         1.    The truck will be transferred to a
         location designated by the defense for the
         inspection to take place.    Notice shall be
         provided to the MCPO no less than three
         weeks prior to the selected date for
         inspection.   The court will be notified of
         the inspection location, date, and time.

         2. Members and representatives of the MCPO
         will not be permitted to be present at the
         time of the defense's inspection.

         3. Two retired Superior Court Judges are to
         be present to proctor the inspection of the
         truck. The defense provided a list of five
         retired Superior Court Judges. The MCPO was
         to select two of the judges to oversee the
         inspection.   At a hearing to discuss this
         issue, the representatives of the MCPO, on
         the record, challenged the probity and
         rectitude of the retired judges.   Since the
         Prosecutor's Office is not inclined to make
         the selection, the Court will do so and
         order the Honorable William Wertheimer and
         the Honorable William Drier to be present
         throughout the entirety of the inspection
         and they shall be authorized to stop the
         inspection and report to the Court any
         violation of this Court's Order with respect
         to the nature and scope of the inspection.

                                6
                                                         A-2805-15T1
         The cost for these judicial proctors shall
         be borne by the defense.

         4.    The   entire   inspection   shall   be
         continuously videotaped.   The defense shall
         hire someone to be present to videotape the
         entire proceeding from the arrival of the
         truck to the selected location until its
         departure.   The entire cost shall be borne
         by the defense.     The following shall be
         submitted to the Court and made a part of
         the Court record: (1) the recording and (2)
         the name, address and telephone number of
         the individual who created the recording.
         The two judicial proctors shall insure that
         this portion of this Order shall be complied
         with.

         5. Dotro, defense counsel, and all necessary
         members of the defense team are permitted to
         be present during the inspection.        The
         identities of all individuals present during
         the inspection shall be provided to the
         Court no later than three days before
         inspection.

         6. This Order shall be stayed for ten days
         from today's date to allow the Prosecutor to
         file its appeal.

In a footnote, the court further ordered:

         Prior to any inspection, Dotro will be
         required to place his waiver [to any claim
         to the truck's chain of custody], under
         oath,   on  the   record.   Unless   it  is
         completely unequivocal, no inspection shall
         take place. Also, any waiver given by Dotro
         will become law of the case and binding on
         any successor attorney.




                               7
                                                        A-2805-15T1
                                 II

    On appeal, the State raises the following point for our

consideration:

          THE TRIAL COURT ABUSED ITS DISCRETION BY
          ORDERING THE STATE TO BE ABSENT DURING
          DEFENDANT'S INSPECTION OF TANGIBLE EVIDENCE
          IN THE STATE'S CONTROL AND BY APPOINTING TWO
          RETIRED JUDGES TO STAND IN AS "JUDICIAL
          PROCTORS" DURING THE INSPECTION.

    In its brief, the State raises the same arguments it did

before the trial court.   It also claims "the safeguards to

protect defendant's constitutional rights to pursue defenses[,]"

would not be jeopardized by the State's presence during the

examination.   The State does not identify the safeguards to

which it is referring, other than to note it would position its

representative during the examination to preclude him or her

from hearing any discussions between defendant's counsel and his

expert.

    Defendant notes he does not know whether the examination of

the truck will provide exculpatory or inculpatory evidence.     As

he argued before the trial court, a representative of the State

cannot be present because he or she will be able to intuit from

what the expert examines what defendant seeks to learn from the

inspection.    If a representative is present, defendant will have

to choose between foregoing discovery that may uncover

                                 8
                                                          A-2805-15T1
exonerating evidence or risk providing the State with

incriminating evidence.

    Defendant maintains videotaping the expert's examination of

the truck will adequately protect the State's chain of custody

concerns and preserve the integrity of the truck.    Once the

examination is over, the videotape will be given to one of the

judges for delivery to the court.   In the event the State

detects or suspects the truck was compromised during the

examination, the State will have the option of making an

application to the court to view the tape.     Defendant also notes

both he and defense counsel waived any objection to the chain of

custody on the record.

    "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)).   An appellate court should "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.    However, a trial court's interpretations of

the law are subject to de novo review.   See ibid.; In re

Custodian of Records, Criminal Div. Manager, 214 N.J. 147, 163
                                9
                                                            A-2805-15T1
(2013) (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J.

366, 378 (1995)).

       Criminal defendants are entitled to broad discovery.   State

v. Scoles, 214 N.J. 236, 252 (2013).    "To advance the goal of

providing fair and just criminal trials, we have adopted an

open-file approach to pretrial discovery in criminal matters,"

and our court rules implement that approach.    Ibid.   Courts also

have the power to order discovery when justice requires.      State

ex rel W.C., 85 N.J. 218, 221 (1981).     "Whether discovery should

be expanded involves exercising judicial discretion or, put

another way, balancing the beneficial effects of discovery

against its disadvantages."    Id. at 224.

       "The right to counsel afforded criminal defendants by the

Sixth Amendment of the United States Constitution and by Art. I,

par. 10 of the New Jersey Constitution comprehends the right to

the effective assistance of counsel."     State v. Mingo, 77 N.J.

576, 581 (1978).    The right to effective assistance of counsel

"includes the right to conduct a reasonable investigation to

prepare a defense" in a criminal proceeding, A.B., supra, 219

N.J. at 547, including the right "to the assistance of experts

to aid in the accused's defense."     Scoles, supra, 214 N.J. at

258.


                                 10
                                                           A-2805-15T1
    While engaged in his or her investigation, defense counsel

must "be permitted full investigative latitude in developing a

meritorious defense on his client's behalf."    Mingo, supra, 77

N.J. at 576.   Investigative latitude would be circumscribed if,

in order to conduct such discovery, defense counsel had to risk

revealing to the State potentially injurious information to

defendant's position and information defendant does not intend

to use at trial.   Id. at 582; see also State v. Nunez, 436 N.J.

Super. 70, 78 (App. Div. 2014) (observing "[h]aving to risk the

State's introduction of the results of a defense investigation

unconstitutionally hampers the ability of defense counsel to

render effective representation to clients.").

    Here, the trial court properly considered the State's and

defendant's competing concerns.    After weighing these opposing

positions, the trial court reasonably determined defendant's

need to examine the truck out of the presence of a MCPO

representative trumped the State's concerns.    Nevertheless, the

trial court ordered measures to protect the State's evidence.

    Although we remand to include additional conditions to

govern the examination, the conditions ordered by the trial

court are otherwise adequate and appropriate.    They address the

State's concerns about safeguarding the evidence, yet provide a


                                  11
                                                          A-2805-15T1
mechanism for defendant to examine evidence while sheltering him

from providing inculpatory evidence to the State.

    We conclude the State's remaining arguments are without

sufficient merit to warrant discussion in a written opinion, see

R. 2:11-3(e)(2), and note the case law upon which the State

relies to support its position is distinguishable from the facts

in this case and, thus, inapposite.

    Finally, we remand this matter to the trial court to

include the following additional conditions for defendant to

examine the truck.   The videographer shall keep the camera on

the expert's hands, which shall be in view at all times, and the

recording shall be clear enough to discern what he does to the

truck.   In addition, because the camera will be focused on the

expert's hands, another camera or cameras shall be pointed at

the rest of the truck so any activity at or near other parts of

the truck will be recorded during the entire examination.   The

judges shall ensure all recordings shall be delivered to the

court.

    Affirmed in part and remanded in part in accordance with

this opinion.   We do not retain jurisdiction.




                                12
                                                         A-2805-15T1
