                        NOT FOR PUBLICATION WITHOUT THE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-1661-14T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CLIFFORD MOORE,

     Defendant-Appellant.
___________________________

              Argued February 8, 2017 – Decided           June 29, 2017

              Before Judges Simonelli, Carroll and Gooden
              Brown.

              On appeal from the Superior Court of New
              Jersey, Law Division, Union County, Indictment
              No. 13-01-0034.

              Joshua F. McMahon argued the cause for
              appellant (Schiller McMahon LLC, attorneys;
              Mr. McMahon, of counsel and on the brief).

              Milton S. Leibowitz, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Grace H. Park,
              Acting Union County Prosecutor, attorney;
              Meredith L. Balo, Special Deputy Attorney
              General/Acting   Assistant  Prosecutor,   of
              counsel and on the brief).
PER CURIAM

     Defendant Clifford Moore appeals from the August 28, 2014 Law

Division order, which denied his motion to set aside the verdict

and enter a judgment of acquittal, and from the October 17, 2014

order, which denied his motion for reconsideration.                  For the

following reasons, we affirm.

                                       I.

     We derive the following facts from the record.              A grand jury

indicted defendant for third-degree possession of a controlled

dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree

distribution of a CDS,    N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-

5(b)(3); and third-degree possession of a CDS with intent to

distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3).

     On January 29, 2013, the State produced some, but not all,

discovery to defendant, including a laboratory certificate.                The

State   also   provided   a   notice    of   its   intent   to   proffer   the

laboratory certificate as evidence at trial pursuant to N.J.S.A.

2C:35-19(c) without the testimony of the analyst.                 The notice

advised defendant, incorrectly, that he had ten days from receipt

of the notice to object.       However, N.J.S.A. 2C:35-19(c) provides

as follows, in pertinent part:

           Whenever   a party intends to proffer in a
           criminal   . . . proceeding, a certificate

                                       2                              A-1661-14T4
              executed pursuant to this section, notice of
              an intent to proffer that certificate and all
              reports relating to the analysis in question,
              including a copy of the certificate, shall be
              conveyed to the opposing party or parties at
              least [twenty] days before the proceeding
              begins.

              [(Emphasis added).]

Thus, the ten-day time period does not begin to run until the

State has produced all laboratory-related discovery.                      See also

State v. Heisler, 422 N.J. Super. 399, 405-06 (App. Div. 2011)

(holding that "the ten-day period in which a defendant must object

to the admission into evidence of a lab certificate begins to run

only after the State has served upon the defendant all related lab

reports").

      On July 10, 2014, five days before the start of the trial,

defendant     advised   the    State   that      he   would   not    stipulate    to

anything,      including      the   CDS,     and      demanded      production    of

outstanding discovery, including all laboratory notes.                     On July

13,   2014,    defendant   demanded        the   outstanding     discovery       plus

additional     laboratory-related      items       the   State   had    failed    to

produce, including a list of devices the State utilized to test

the CDS by serial number; any maintenance or technical records of

said devices; whether or not said devices had any technical defects

since 2012; "[a]ny and all documents wherein [the State's chemist]



                                       3                                   A-1661-14T4
ever erred or made a mistake in the course of her work[;]" and

chain of custody records.

     On July 15, 2014, the first day of trial, the State provided

additional discovery, including a letter from the State's forensic

chemist, Suzanne Bryant, that included the laboratory report and

other laboratory-related documents.   After the close of the day's

proceedings and after the jury was discharged, all counsel1 met

with the trial judge in chambers to discuss scheduling and other

issues.   In an effort to conserve the jurors' valuable time and

efficiently and fairly move the proceedings along, the judge

inquired whether a stipulation would obviate the need for Bryant

to testify.   After discussing the verbiage of the stipulation, all

counsel agreed on a stipulation that obviated the need for Bryant

to testify.    Defense counsel confirmed the stipulation in an e-

mail to the prosecutor.

     On July 17, 2014, the State withdrew from the stipulation,

and at the close of its case, sought admission of the laboratory

certificate pursuant to N.J.S.A. 2C:35-19(c) without Bryant's

testimony.    Defendant raised a confrontation/Crawford2 objection.



1
   Defendant was tried along with a co-defendant whose counsel
participated in all phases of the trial.
2
  Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.
2d 177 (2004).

                                 4                          A-1661-14T4
The State countered that: (1) defendant failed to object to

admission     of   the    laboratory   certificate      within       ten    days    of

receiving it, and thus, waived any confrontation objection; and

(2) he lacked standing to demand confrontation of Bryant because

his objection was untimely.            The judge admitted the laboratory

certificate over defendant's objection without the testimony of

Bryant, who was outside the courtroom and available to testify.

Defendant was subsequently convicted of all offenses.

      On August 6, 2014, defendant filed a motion to set aside the

verdict and enter a judgment of acquittal, arguing, in part, that

the   court   improperly     admitted       the   laboratory       certificate      in

violation     of    his    constitutional         rights,    and     without       the

certificate, the court must enter a judgment of acquittal because

the State could not prove the charges beyond a reasonable doubt.

Defendant also raised a double jeopardy argument.                          The State

conceded that admission of the laboratory certificate was error,

but argued the error was harmless and the appropriate remedy was

a new trial, not a judgment of acquittal.                   Defendant responded

that pursuant to Heisler, it was inappropriate to remand for a new

trial to allow the State to cure the error.

      In an August 28, 2014 order, the judge vacated defendant's

conviction, denied the motion for a judgment of acquittal, and

remanded for a new trial.        The judge found that he had improperly

                                        5                                    A-1661-14T4
admitted the laboratory certificate into evidence without Bryant's

testimony; the error was not harmless; the error was a trial error,

not a failure of proof; and the State could retry defendant and

seek   admission    of   the   laboratory   certificate       with   Bryant's

testimony. Defendant then entered a conditional plea to an amended

charge    of   fourth-degree    distribution   of   CDS       paraphernalia,

N.J.S.A. 2C:36-3.

       Prior   to   sentencing,    defendant    filed     a     motion     for

reconsideration, raising the same arguments he had previously

raised.   The judge denied the motion and then sentenced defendant

to time served.     This appeal followed.

       On appeal, defendant raises the following contentions:

           POINT I:

           THE TRIAL COURT'S ORDER VIOLATES STATE v.
           HEISLER.

           POINT II:

           EVEN IF HEISLER IS FOUND TO BE INAPPLICABLE
           TO THE INSTANT CASE, THE TRIAL COURT ERRED
           BECAUSE JUDGMENT OF ACQUITTAL IS REQUIRED BY
           THE FEDERAL AND STATE PROHIBITION AGAINST
           DOUBLE JEOPARDY.

           POINT III:

           EVEN IF THE COURT FINDS THAT HEISLER AND
           DOUBLE JEOPARDY DO NOT DEMAND A JUDGMENT OF
           ACQUITTAL, UNDER [RULE] 3:13-3 AND/OR STATE
           OR FEDERAL DUE PROCESS GUARANTEES AND/OR THE
           FUNDAMENTAL FAIRNESS DOCTRINE AND/OR RES
           JUDICATA   OR  COLLATERAL   ESTOPPEL  AND/OR

                                     6                                A-1661-14T4
          INHERENT JUDICIAL SUPERVISORY POWERS, A
          JUDGMENT OF ACQUITTAL IS PROPER DUE TO THE
          SYSTEMIC AND THEREFORE EGREGIOUS GOVERNMENT
          MISCONDUCT.

                                 II.

     Defendant reiterates in Point I that the court improperly

admitted the laboratory certificate into evidence and without the

certificate, he was entitled to a judgment of acquittal because

the State could not prove the charges beyond a reasonable doubt.

Defendant again relies on Heisler to argue that the State is

precluded from curing the error in a retrial and acquittal is the

only proper remedy.    Defendant argues in Point II that even if

Heisler does not apply, a judgment of acquittal is the only remedy

because double jeopardy prohibits affording the State another

opportunity to produce evidence it failed to produce at the

original proceeding.   We disagree with both arguments.

     Heisler concerned an appeal from a municipal court conviction

after trial de novo in the Law Division, which affirmed the

defendant's conviction for being under the influence of a CDS and

operating a vehicle while knowingly in possession of a CDS.

Heisler, supra, 422 N.J. Super. at 405. The defendant's conviction

was based in part on the admission of a laboratory certificate

pursuant to N.J.S.A. 2C:35-19 that indicated the substance found

in his possession was cocaine.     Id. at 423.   We determined that


                                  7                         A-1661-14T4
because the State failed to timely deliver all laboratory reports,

and the defendant objected within ten days of receipt of all

required   documents,   admission   of   the   laboratory    certificate

pursuant   to   N.J.S.A.   2C:35-19(a)   was   improper     without    the

laboratory analyst's testimony.     Id. at 422.   We remanded the case

to the trial court and held that "the State shall not have the

opportunity to call the lab analyst . . . to cure the initial

error of admitting the lab certificate," because a remand is

"inappropriate in order to afford the State the opportunity to

provide proofs it should have provided in the initial trial which

were necessary to support a conviction."          Id. at 424 (quoting

State v. McLendon, 331 N.J. Super. 104, 108 (App. Div. 2000)).

Instead, we determined that the matter must be decided "solely on

the remaining testimony."     Id. at 425.      We relied on the late

disclosure of the laboratory certificate in barring the State from

retrying its proofs on remand.      Id. 423-25.

     Defendant also relies on State v. Hardy, 211 N.J. Super. 630

(App. Div. 1986).   Similar to Heisler, we determined in Hardy that

"[n]owhere in . . . [Rule 3:23-8(a)] is the State given the right

to correct or bolster its case-in-chief; rather it may only respond

to evidence admitted by defendant under the rule."          Id. at 634.

     Heisler and Hardy do not apply to this case.           Unlike here,

Heisler and Hardy concern a trial de novo in the Law Division

                                    8                             A-1661-14T4
after an appeal from a municipal conviction, and both cases were

decided under a pre-2013 version of Rule 3:23-8(a).                Under the

pre-2013    version,   the    Law    Division,   in    reviewing   municipal

appeals, was strictly confined to the record below and could not

remand for expansion of the record.          The 2013 amendment, however,

provides as follows, in pertinent part:

            The court to which the appeal has been taken
            may reverse and remand for a new trial or may
            conduct a trial de novo on the record below.
            . . . If the court to which the appeal is
            taken decides the matter de novo on the
            record, the court may permit the record to be
            supplemented for the limited purpose of
            correcting a legal error in the proceedings
            below.

            [R. 3:23-8(a)(2) (emphasis added).]

See also Pressler & Verniero, Current N.J. Court Rules, comment 1

on R. 3:23-8 (2017) (stating that "[t]he deletion in 2013, in new

subparagraph   (2),    of    the    prior   standard   for   remand,    namely

prejudice to the defendant, should be read as facilitating the

State's introduction of such evidence;" and "[t]he amended rule

makes clear that the record may be supplemented only for the

'limited purpose of correct[ing] a legal error in the proceedings

below'").

     Accordingly, the State is permitted to correct trial errors

on remand.     A trial error occurs when a criminal defendant is

"convicted through a judicial process [that] is defective in some

                                       9                               A-1661-14T4
fundamental respect[.]"         State v. Millett, 272 N.J. Super. 68, 97

(App. Div. 1994) (quoting Burks v. United States, 437 U.S. 1, 16,

98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1, 12-13 (1978)).                 Examples of

fundamental defects may include an incorrect receipt or rejection

of evidence, as occurred here, or incorrect instructions.                     Ibid.

(quoting Burks, supra, 437 U.S. at 16, 98 S. Ct. at 2150, 57 L.

Ed. 2d at 12-13).         "A reversal for trial error never constitutes

a decision that the State failed to prove its case, and therefore

implies nothing with respect to the defendant's guilt or innocence"

and does not preclude retrial.            Ibid. (citation omitted).

       For example, in State v. Slaughter, 219 N.J. 104 (2014), the

defendant was convicted of aggravated manslaughter after the State

introduced an audiotape interview of his girlfriend, during which

she attributed incriminating statements to him.                Id. at 106.       The

court admitted the audiotape into evidence absent the State calling

the    girlfriend    as   a   witness,    despite     the   fact   that    she   was

available to testify.          Ibid.     Our Supreme Court determined that

this   violated     the   defendant's     rights    under    the   Confrontation

Clause and vacated his conviction.            Ibid.    Importantly, the Court

remanded the case to the trial court for a new trial, requiring

the State to call the girlfriend as a witness if it intended to

introduce the audiotape into evidence.                Id. at 120.         The Court



                                         10                                 A-1661-14T4
reached a similar conclusion in State v. Cabbell, 207 N.J. 311,

339 (2011).

     Conversely, the State is not permitted to correct substantive

failures of proof on remand.   A failure of proof occurs when the

State fails to prove one or more of the elements of the crime

charged.   See State v. Tropea, 78 N.J. 309, 310 (1978) (holding

that the State's failure to offer any evidence of the legal speed

limit in a speeding infraction was a failure of proof).     Reversal

for failure of proof "means that the government's case was so

lacking that it should not have even been submitted to the jury."

Millett, supra, 272 N.J. Super. at 97 (quoting Burks, supra, 437

U.S. at 16, 98 S. Ct. at 2150, 57 L. Ed. 2d at 12-13).   "[A]lthough

a remand for a new trial is proper where reversal of a criminal

conviction is predicated on trial error, the double jeopardy clause

forbids a second trial where the conviction has been overturned

due to a failure of proof at trial."     Tropea, supra, 78 N.J. at

314-16 (citation omitted).

     Citing State v. Lawn King, 84 N.J. 179 (1980), defendant

argues that the State's failure to call Bryant was a failure of

proof rather than a trial error.     In Lawn King, the Court noted

the State "made a conscious decision to limit its evidence of

criminality to that required by the per se rule."        Id. at 213.

The Court held:

                                11                           A-1661-14T4
           where the State has had a reasonable
           opportunity to present complete evidence
           against a defendant in a criminal trial but
           has failed to do so, its conscious election
           to restrict its evidential presentation,
           designed to serve its own prosecutorial
           convenience, should foreclose it from seizing
           another opportunity to prosecute defendants.

           [Id. at 214.]

     Lastly, citing McMullen v. Tennis, 562 F.3d 231, 237 (3d

Cir.), certif. denied, 558 U.S. 833, 130 S. Ct. 72, 175 L. Ed. 2d

51 (2009), defendant argues that criminal defendants are excepted

from the trial error rule, and thus, cannot be retried on the

underlying charge when the "evidence is insufficient to sustain a

guilty   verdict."   Defendant   further   cites   McMullen   for   the

proposition that double jeopardy "forbids a second trial for the

purpose of affording the prosecution another opportunity to supply

evidence which it failed to muster" and that "the prosecution

cannot complain of prejudice [when] it has been given one fair

opportunity . . . [and] the Double Jeopardy Clause bars the

prosecution from taking the proverbial second bite at the apple."

Id. at 237-38 (citations omitted).

     Lawn King and McMullen do not support defendant's arguments.

The State did not fail to call Bryant out of "prosecutorial

convenience," but rather pursuant to a stipulation that obviated

the need for her to testify, which the judge ultimately enforced


                                 12                            A-1661-14T4
out of judicial economy despite the State's withdrawal.                 In

addition, McMullen did not provide an exception to the trial error

rule.   Rather, it further clarified the difference between a trial

error and a failure of proof. The prosecution's failure to "muster

evidence" is a prime example of failure of proof and is not an

exception to the trial error rule.     Here, the error was not caused

by the State's failure to "muster evidence."        The trial error

occurred as a result of the judge's erroneous admission of the

laboratory certificate absent the testimony of Bryant, who was

available to testify.

     We are satisfied that the judge properly deemed the admission

of the laboratory certificate without Bryant's testimony a trial

error, rather than a failure of proof.      As in Millett, this case

involved the incorrect receipt of evidence.     Unlike Tropea, where

the State failed to offer any evidence that would satisfy an

element of the crime charged, here, the State provided evidence

establishing that the substance at issue was heroin, but the

evidence    was   improperly   admitted.    Accordingly,   the     judge

correctly vacated defendant's conviction and denied the motions

for a judgment of acquittal and for reconsideration, and correctly

permitted the State to introduce Bryant's testimony at a retrial,

which never occurred because defendant pled guilty to an amended

charge.    See Slaughter, supra, 219 N.J. at 120.   Having concluded

                                  13                             A-1661-14T4
that the error was trial error and not a failure of proof,

defendant's double jeopardy argument fails.                     Tropea, supra, 78

N.J. at 314-16 (citing Burks, supra, 437 U.S. at 16, 98 S. Ct. at

2149-2150, 57 L. Ed. 2d at 12-13).

                                        III.

       Defendant argues in Point III that even if Heisler and double

jeopardy do not demand a judgment of acquittal, we should exercise

our separate and independent authority to enter a judgment of

acquittal under the fundamental fairness doctrine as a result of

the State's systemic discovery violations.                     We have considered

this    argument     in    light   of   the    record    and    applicable      legal

principles and conclude it is without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).                         However, we

make the following brief comments.

       The doctrine of fundamental fairness is an "elusive concept"

and its "exact boundaries are undefinable." State v. Yoskowitz,

116 N.J. 679, 704-05 (1989) (citations omitted).                      "For the most

part,   it   has    been    employed    when    the     scope    of   a    particular

constitutional protection has not been extended to protect a

defendant."        Id. at 705.      Dismissal on fundamental fairness is

triggered because "[t]he primary considerations should be fairness

and fulfillment of reasonable expectations in the light of the

constitutional and common law goals."                 State v. Currie, 41 N.J.

                                        14                                    A-1661-14T4
531, 539 (1964).       The fundamental fairness doctrine does not

preclude a retrial where "the elements of harassment and oppression

which [are] the historic object of the constitutional and common

law . . . principles" were not present."           State v. Tsoi, 217 N.J.

Super. 290, 297 (App. Div. 1987).

     We discern no reason to exercise our independent authority

to grant a judgment of acquittal.        While the State's discovery

violations are troubling, this was not the cause of defendant's

grievance   and   is   largely   irrelevant   to    the    analysis   of   his

fundamental fairness claim.       Rather, a trial error was the root

cause.   The law clearly permits the State to remedy a trial error,

and double jeopardy principles do not apply.              The constitutional

goals were satisfied in this case and defendant received the relief

the law compels: his conviction was vacated.

     Affirmed.




                                   15                                 A-1661-14T4
