STATE OF NEW JERSEY VS. DOMINIQUE T. MOORE(W-2017-000378-1303, MONMOUTH COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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.
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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.
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