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Friday, March 29, 2019

Suppression affirmvdhere where police did not get search warrant State v NAPPER

Suppression affirmvdhere where police did not get search warrant   State v NAPPER





                    Submitted February 5, 2019 – Decided February 19, 2019

                    Before Judges Fisher and Geiger.

                    On appeal from interlocutory orders of Superior Court
                    of New Jersey, Law Division, Atlantic County,
                    Indictment No. 18-02-0233.

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for appellant (Dylan P. Thompson, Assistant
                    Prosecutor, of counsel and on the brief).

                    Mark A. Bailey, attorney for respondent Yachor R.

                    Murray N. Sufrin, attorney for respondent Brandon E.
                    Figaro, joins in the brief of respondent Yachor R.
                                                          DOCKET NO. A-4822-17T2
Upon leave granted, the State appeals from two interlocutory Law Division orders granting defendants Yachor R. Napper and Brandon E. Figaro's motion to suppress evidence seized during a warrantless vehicle search, and denying the State's motion for reconsideration. We reverse and remand. At about 1:30 p.m. on November 2, 2016, Pleasantville Police Department Officers Tell and VanSyckle were on patrol when they came upon a Hyundai Sonata with an unclear temporary Delaware registration stopped in the lane of travel impeding traffic while the occupants spoke to a woman on the sidewalk. The officers initiated a traffic stop. Napper was the driver and Figaro was in the front passenger seat. The officers knew Figaro had a history of weapons and drug distribution offenses. Officer VanSyckle approached the passenger side window and Officer Tell approached the driver's side window. Officers VanSyckle and Tell observed a bulge in the pocket in the front waist area of Napper's hooded sweatshirt. They were concerned it could be a gun. Officer VanSyckle acknowledged there was nothing specific about the shape of the bulge that would indicate it was a gun other than its location in the waistband area. Officer VanSyckle ordered Napper to turn off and exit the vehicle. Napper refused, A-4822-17T2 2 becoming rude. Officer Tell conducted a pat down of Napper after he finally exited the vehicle and discovered the bulge was a winter hat. Napper was asked to remain outside the vehicle. Officer Tell requested Napper's driver's license and vehicle registration. Officer VanSyckle then observed a black object that resembled the rubberized handle of a handgun in the map pouch on the backside of the passenger seat. He handcuffed Napper and placed him on the ground. Officer Tell removed Figaro from the vehicle for officer protection, handcuffed him, and placed him on the ground pending an investigation. The object in the seat pouch turned out to be a black metal hammer with a rubberized grip. Officer VanSyckle contacted Delaware authorities regarding the vehicle's temporary registration and learned the registration was for a Volkswagen Jetta. He also learned the vehicle was not reported stolen. Due to the fictitious registration, Officer VanSyckle requested a tow truck to transport the vehicle to an impound lot. Officer VanSyckle noticed a suspicious, "very visible" gap between the air vents and the dashboard. The plastic panel around the vehicle's radio and center air vents was loose and the seams were not properly aligned. Based on A-4822-17T2 3 his training and experience, Officer VanSyckle believed the dashboard had been tampered with. At the time of the stop, Officer VanSyckle had approximately seven years experience as a police officer. His training included an eight-hour class on electronically operated hidden compartments within vehicles and a Drug Enforcement Administration class on how to locate, access, and observe indicators of hidden compartments in different vehicle makes and models. His experience included a recent incident involving a vehicle with a temporary Delaware registration that had an electronically operated hidden compartment in the dashboard where the front passenger's side airbag had been removed. Officer VanSyckle suspected the dashboard had a hidden compartment containing a concealed controlled dangerous substance (CDS). Officer VanSyckle believed the vehicle contained contraband in the dashboard. He asked defendants for consent to search the vehicle; the record does not disclose their response. The officers then requested a K-9 unit to conduct a canine drug detection sniff test of the vehicle. Defendants were allowed to leave the scene because the officers determined there was no reason to keep them. By that point the stop "was well within probably about forty-five minutes." The officers did not issue any A-4822-17T2 4 summonses to defendants at the scene because Officer VanSyckle did not have his ticket book. He subsequently mailed the motor vehicle summons. The K-9 unit arrived approximately ten minutes after the officers' request. By that point defendants had already left the scene. The K-9 unit gave a positive indication for narcotics. A subsequent search of the vehicle revealed a defaced, fully loaded Ruger .45 caliber handgun in a hidden dashboard compartment. The search also uncovered a quantity of CDS, which later tested positive for heroin, and a large quantity of drug distribution materials. Napper and Figaro were then located and arrested on CDS and weapon charges. A grand jury indicted defendants for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); second-degree possession of a handgun while committing a CDS offense, N.J.S.A. 2C:39-4.1(a); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(3); fourth- degree prohibited weapons and devices, N.J.S.A. 2C:39-3(d); third-degree possession of CDS with intent to distribute in a school zone, N.J.S.A. 2C:35-7; and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1). On February 13, 2018, a superseding indictment was issued.1 1 The superseding indictment included additional weapon and CDS charges against Napper resulting from a subsequent traffic stop. The vehicle search leading to the additional charges is not at issue in this appeal. A-4822-17T2 5 Napper moved to suppress the physical evidence seized during the warrantless vehicle search. Figaro joined in the motion. Defendants argued by waiting for the K-9 unit to arrive at the scene, the officers prolonged the stop beyond the reasonable time required to complete the traffic stop's mission, and that the officers should not have released defendants from the scene. Defendants also contended the automobile exception to the warrant requirement does not apply, because the search of the vehicle after defendants were released from the scene cannot be considered unforeseeable or spontaneous. Defendants further argued the search did not fall under the exigent circumstances exception to the warrant requirement because an officer could have stayed with the vehicle until a warrant was issued or the tow truck arrived. The trial court conducted a two-day suppression hearing. Officer VanSyckle was the only witness who testified as to this vehicle search. The trial court issued a subsequent order and oral and written decisions suppressing the evidence seized from the vehicle. The motion judge found the officers' justification for releasing defendants from the scene before the canine sniff was conducted "must fail because they had probable cause to call for a canine unit." Noting the officers had a reason to keep the defendants at the scene but decided not to, the court stated: A-4822-17T2 6 Once the officers informed the defendants that the vehicle was going to be impounded, one of the four officers on the scene should have called for a search warrant instead of waiting for the canine unit to arrive. By waiting for the canine unit, the officers prolonged the stop beyond a reasonable time required to complete the stop[']s mission. The judge concluded the officers should have kept defendants at the scene and sought a search warrant upon requesting a tow truck to impound the vehicle. The judge did not make any credibility findings. The State moved for reconsideration, arguing the holding in State v. Dunbar, 229 N.J. 521 (2017), concerning a traffic stop extending beyond a reasonable time, applies only to persons detained, not to vehicles. Relying on State v. Witt, 223 N.J. 409 (2015) and State v. Alston, 88 N.J. 211 (1981), the State argued because the officers had probable cause to believe the vehicle contained contraband, the search of the vehicle was permitted under the automobile exception to the warrant requirement. Emphasizing that the car is accessible to third persons who might destroy evidence because "the car is readily movable until such time as it is seized, removed from the scene and securely impounded by police," the State contends "when there is probable cause to conduct an immediate search at the scene of the stop, the police are not required to delay the search by seizing and impounding the vehicle pending A-4822-17T2 7 review of that probable cause determination by a magistrate." Alston, 88 N.J. at 234-35. The motion judge denied reconsideration, but the record on appeal does not reflect if the judge issued an oral or written decision stating the basis for her decision. See R. 2:5-6(c) (requiring the motion judge to submit "a written statement of reasons for the disposition" upon the filing of a motion for interlocutory appeal if the judge had not previously "filed a written statement of reasons or if no verbatim record was made of any oral statement of reasons"); see also R.1:6-2(f). We granted the State's motion for leave to appeal from the two orders. The State raises the following points: POINT I THE TRIAL COURT ERRED IN DECIDING THE SEARCH OF THE VEHICLE WAS UNLAWFUL BECAUSE THE SEARCH OF THE OFFICERS PROLONGED THE TRAFFIC STOP. POINT II THE SEARCH OF THE VEHICLE WAS LAWFUL UNDER THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT. POINT III THE SEARCH OF THE VEHICLE WAS LAWFUL UNDER THE DESTRUCTION OF EVIDENCE [EXIGENT] CIRCUMSTANCE EXCEPTION TO THE WARRANT REQUIREMENT. A-4822-17T2 8 "Appellate review of a motion judge's factual findings in a suppression hearing is highly deferential." State v. Gonzales, 227 N.J. 77, 101 (2016) (citing State v. Hubbard, 222 N.J. 249, 262 (2015)). "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (alteration in original) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). "Those findings warrant particular deference when they are 'substantially influenced by [the trial court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original) (quoting Robinson, 200 N.J. at 15). "Thus, appellate courts should reverse only when the trial court's determination is 'so clearly mistaken that the interests of justice demand intervention and correction.'" State v. Gamble, 218 N.J. 412, 425 (2014) (quoting State v. Elders, 192 N.J. 224, 244 (2007)). "A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference. Therefore, a trial court's legal conclusions are reviewed de novo." Ibid. (citing State v. Gandhi, 201 N.J. 161, 176 (2010)). A-4822-17T2 9 A traffic "stop by a police officer constitutes a seizure under both the Federal and New Jersey Constitutions." Dunbar, 229 N.J. at 532 (citing Arizona v. Johnson, 555 U.S. 323, 333 (2009); State v. Scriven, 226 N.J. 20, 33 (2016)). A police officer must have reasonable suspicion that someone in the car is committing a motor vehicle violation or a criminal or disorderly persons offense in order to justify a traffic stop. Dunbar, 229 N.J. at 533; Scriven, 226 N.J. at 33. "During an otherwise lawful traffic stop, a police officer may 'inquire into matters unrelated to the justification for the traffic stop.'" Dunbar, 229 N.J. at 533 (quoting Johnson, 555 U.S. at 333). This includes verifying the driver's license, registration, proof of insurance, and whether the driver has any outstanding warrants. Ibid. If "during the initial stop or further inquiries, 'the circumstances give rise to suspicions unrelated to the traffic offense , an officer may broaden [the] inquiry and satisfy those suspicions.'" Ibid. (alteration in original) (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)). The stop may not be unreasonably prolonged "absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Id. at 533-34 (quoting Rodriguez v. United States, 575 U.S. ___, 135 S.Ct. 1609, 1615 (2015)); see also Dickey, A-4822-17T2 10 152 N.J. at 476-79 (noting detention can become unlawful if longer than needed to diligently investigate suspicions). However, "an officer does not need reasonable suspicion independent from the justification for a traffic stop in order to conduct a canine sniff." Dunbar, 229 N.J. at 540. Nevertheless, "an officer may not conduct a canine sniff in a manner that prolongs a traffic stop beyond the time required to complete the stop's mission, unless he possesses reasonable and articulable suspicion to do so." Ibid. (citing Rodriguez, 135 S.Ct. at 1616-17). Absent such suspicion, an officer may not prolong the stop. In Witt, our Supreme Court abandoned the "pure exigent-circumstances requirement" it had added to the constitutional standard to justify an automobile search and returned to the standard set forth in Alston. 223 N.J. at 447. The Court held a warrantless search of an automobile is authorized under the automobile exception "when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous." Ibid. (citing A-4822-17T2 11 Alston, 88 N.J. at 233). 2 "However, when vehicles are towed and impounded, absent some exigency, a warrant must be secured." Id. at 450. Here, the traffic stop was justified because the police officers had a reasonable suspicion the driver was committing a motor vehicle violation. The police were permitted to ask the driver to produce his driver's license, proof of insurance, and vehicle registration. The officers were justified in removing the driver and passenger after observing what may have been a weapon under the driver's sweatshirt and what appeared to be the handle of a handgun protruding from a map pocket. Further investigation revealed the out-of-state temporary registration for the vehicle was expired and pertained to a different vehicle. This allowed the officers to impound the vehicle. The police officers did not need additional justification to conduct a canine drug sniff test. The K-9 unit alerted for narcotics in the car. In addition, Officer VanSyckle observed the plastic around the vehicle's radio and center air vents was loose and the seams were not properly aligned and a small gap in the glove box. Based on his training and experience, Officer VanSyckle reasonably believed the dashboard could contain narcotics. Viewed through the prism of 2 The holding in Witt was given prospective application from the date of the opinion. Id. at 450. Witt was decided prior to the November 2, 2016 investigatory stop in this case and, therefore, applies to this case. A-4822-17T2 12 the officers' experience and knowledge of Figaro's criminal history, it was entirely appropriate for the police officers to reasonably suspect the vehicle contained contraband. In order to establish probable cause to conduct a search, the State must show from the totality of the circumstances there is "a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Chippero, 201 N.J. 14, 28 (2009) (quoting United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993)). That standard was clearly met here. The police officers had probable cause to believe the vehicle contained CDS. By any measure, "the circumstances giving rise to probable cause [were] unforeseeable and spontaneous." Witt, 223 N.J. at 447 (citing Alston, 88 N.J. at 233). The police were not looking for either defendant or the vehicle they occupied at the time the stop was made. Therefore, the warrantless vehicle search was fully justified by the automobile exception reestablished in Witt. The fact the police officers requested a tow truck to impound the vehicle does not change the result. The search was conducted roadside before the vehicle was towed and impounded. The release of the defendants from the scene did not obviate the justification for the search of the vehicle. At that point the officers did not have A-4822-17T2 13 grounds to arrest defendants and were unable to issue traffic summonses because they lacked a ticket book. We further conclude the additional time expended to determine if the Delaware temporary registration was valid and to conduct the canine drug sniff of the vehicle was reasonable given the unfolding events during the roadside stop. Therefore, the warrantless search was permissible. For these reasons, the trial court erred by suppressing the physical evidence seized from the vehicle and by denying reconsideration. We reverse the March 13, 2018 and April 9, 2018 orders and remand this matter for trial. We do not retain jurisdiction. Reversed and remanded.

Monday, March 25, 2019

DRE case unreported State v Olenowski

      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-4666-16T1  STATE OF NEW JERSEY,            Plaintiff-Respondent,  v. MICHAEL OLENOWSKI,      Defendant-Appellant. ___________________________                      Argued October 23, 2018 – Decided November 27, 2018                      Before Judges Fisher, Hoffman and Firko.                     On appeal from Superior Court of New Jersey, Law                     Division, Morris County, Municipal Appeal Nos.                    16-013 and 10-017.                     Michael D'Alessio, Jr. argued the cause for the                     appellant.                      Paula C. Jordao, Assistant Prosecutor argued the cause                    for the respondent (Fredric M. Knapp, Morris County                     Prosecutor, attorney; Erin Smith Wisloff, Supervising                    Assistant Prosecutor, on the brief). PER CURIAM         Defendant Michael Olenowski appeals from his conviction, after a trial de  novo, for driving while intoxicated (DWI),  N.J.S.A. 39:4-50(a), on two separate  occasions in 2015. The first charge was defendant's second DWI conviction,  and the Law Division judge imposed a two-year license suspension, forty-eight  hours in the Intoxicated Driver Resource Center (IDRC) program, and  appropriate fines, costs, and penalties.       Because the second charge was  defendant's third DWI conviction, the Law Division judge imposed a ten-year  driver's license suspension, a mandatory 180-day sentence in the Morris County  Correctional Facility, and requisite fines, costs, and penalties.          On appeal, defendant contends that the evidence was insufficient to prove  him guilty of all charges beyond a reasonable doubt. He attacks the credibility  of the State's witnesses, and promotes his own and his Drug Recognition  Expert's (DRE) credibility. He presents the following points on appeal:               POINT I.                DRE EVIDENCE SHOULD NOT HAVE BEEN              ADMITTED AS EXPERT OPINION BECAUSE IT IS               UNRELIABLE    AND   NOT    "GENERALLY               ACCEPTED" AS REQUIRED UNDER FRYE.[1]                A.    Standard of Review.  1    Frye v. United States,  293 F. 1013(D.C. Cir. 1923).                                                                            A-4666-16T1                                           2              B.    The DEC[2] Protocol.               C.    DRE Evidence is Subject to the Frye Standard of                    Admissibility and the Requirement for General                   Acceptance in a Criminal Case.               D.    New Jersey Judicial Opinions Do Not Establish                    That DRE Testimony Has Gained General                    Acceptance.               E.    DRE Opinion Is Not Reliable or Generally                    Accepted in the Scientific Community.              POINT II.               THERE WAS INSUFFICIENT EVIDENCE TO FIND             DEFENDANT GUILTY OF DRIVING UNDER THE              INFLUENCE.               A.    Standard of Review.               B.    There Was Insufficient Evidence to Convict                    Defendant on the August 17, 2015 Incident.              C.    There Was Insufficient Evidence to Convict                   Defendant on the February 13, 2015 Incident.         We affirm, substantially for the reasons set forth in the comprehensive written opinion of Judge James M. DeMarzo. There was sufficient credible  evidence in the record to support Judge DeMarzo's finding that defendant was driving while intoxicated on both occasions.    2    DEC stands for Drug Recognition and Classification Program.                                                                       A-4666-16T1                                          3                                        I.        The February 13, 2015 Incident:        We derive the following facts from the record. At approximately 4:45 p.m. on February 13, 2015, Patrolman Peter Grawehr of the Denville Police  Department stopped defendant for failing to wear a seatbelt. Upon approaching defendant's vehicle, Grawehr smelled the "odor of heavy alcohol."           He  administered a series of Standardized Field Sobriety Tests, beginning with the  Horizontal Gaze Nystagmus Test (HGN Test). Grawehr next attempted to  conduct the walk-and-turn test, after explaining and demonstrating the test for defendant. During this time, defendant was "swaying side-to-side," and had to "stop several times to maintain his balance."      After three reinstructions,  defendant complied.        Grawehr attempted to conduct the One-Leg Stand Test but defendant repeatedly lost his balance and "explained to [Grawehr] that he could not count  past ten one thousand," but "could count to 31,000 by counting to ten one  thousand three times." Defendant "fumbled Patrolman Grawehr's request for registration by producing a rental agreement," and admitted to consuming one  alcoholic beverage.   Based on all of his observations, Grawehr believed  defendant was under the influence and unable to safely operate a motor vehicle.                                                                         A-4666-16T1                                         4 
He was placed under arrest and transported to the Denville police station, where  Grawehr administered an Alcotest, which revealed a blood alcohol content of 0.04%. The officer discovered a "small pink plastic [z]iploc baggie[] with some  unknown residue inside." After questioning defendant about the contents of the  baggie, he asserted his 
Fifth Amendmentprivilege against self-incrimination.  Additionally, Grawehr observed defendant exhibiting erratic behavior and  acting belligerently.        Since Grawehr felt "the level of impairment didn't match up with the  alcohol reading," he contacted Sergeant Pat McNichol, a certified DRE, who performed a Drug Influence Evaluation (DIE) on defendant. He had difficulty  with balance, and exhibited a "circular sway." McNichol also attempted to  conduct the One-Leg Stand Test, however, when defendant "swayed while  balancing and used his arms for balance," the officer stopped the test because of  safety concerns. McNichol concluded that defendant was under the influence of a central nervous system (CNS) depressant, a sympathetic nervous system (SNS)  stimulant, and alcohol.        The August 17, 2015 Incident:        On August 17, 2015, defendant drove his GMC Yukon off a road and  struck a telephone pole in Denville. At approximately 4:48 a.m., Patrolman                                                                           A-4666-16T1                                        5 
David Longo investigated the accident. He approached defendant, who had  already exited his vehicle, and noted he was "having trouble keeping his balance[,]" "his speech was slurred[,]" and he had "a lot of saliva" on his face and chin.     After being questioned by Officer Longo about medications, defendant responded that he was released from the hospital the night before and  prescribed Lipitor, Ambien, and another medication, but could not recall the  name.3 Defendant also stated that he injured his foot a year prior to the accident, which affected his balance and ambulation. Longo administered a series of  Standard Field Sobriety Tests, including the HGN Test, walk-and-turn test, and One-Leg Stand Test. Defendant had to be instructed "multiple times" before  complying with instructions. He had a "blank stare," his speech was slurred,  and he was swaying.          Defendant was arrested for DWI. After being transported to the police  station, Longo administered an Alcotest, which showed a blood alcohol con tent  of 0.00%. No blood was drawn, and defendant refused to provide a urine  sample. Based upon defendant failing the field sobriety tests, finger-to-nose  test, his slow coordination, rapid breath, a pale complexion, and bloodshot eyes, Longo contacted Detective Dennis Subrizi to perform a DRE on defendant.   3     The record reflects that he was also prescribed Nexium and a beta blocker.                                                                           A-4666-16T1                                         6 
After conducting a DRE, Subrizi confirmed these symptoms. He also found  defendant exhibited mood swings, as he "went from being happy to crying in all of a matter of a couple of seconds," which he opined is "a huge indicator f or  somebody to be under [the influence] of liquor and/or drugs." He concluded  that defendant was under the influence of a CNS stimulant and depressant.        Dr. Robert Pandina, defendant's DRE expert, testified that the DRE  protocol was flawed here because no toxicology samples were collected and same were necessary to identify the drug and quantity consumed by defendant.                                         II.        Our standard of review is limited following a trial de novo in the Law Division, conducted on the record developed in the municipal court. State v.  Clarksburg Inn,  
375 N.J. Super. 624, 639 (App. Div. 2005); see also R. 3:23-  8(a)(2). In such an appeal, we "consider only the action of the Law Division  and not that of the municipal court." State v. Oliveri,  336 N.J. Super. 244, 251  (App. Div. 2001) (citation omitted).        The Law Division judge must make  independent findings of fact and conclusions of law based upon the evidentiary  record of the municipal court judge to assess the witnesses' credibility. State v. Johnson,  42 N.J. 146, 157 (1964) (citations omitted). We focus our review on "whether there is 'sufficient credible evidence . . . in the record' to support the                                                                             A-4666-16T1                                         7 
trial court's findings." State v. Robertson,  
228 N.J. 138, 148 (2017) (alteration  in original) (quoting Johnson,  42 N.J. at 162). On a legal determination, in contrast, our review is plenary. See State v. Kuropchak,  221 N.J. 368, 383  (2015).        We will reverse only after being "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice  demand intervention and correction." Johnson,  42 N.J. at 162. "We do not  weigh the evidence, assess the credibility of witnesses, or make conclusions  about the evidence." State v. Barone,  147 N.J. 599, 615 (1997). Because neither the appellate court nor the Law Division judge is in a good position to judge  credibility, the municipal court's credibility findings are given deference. See State v. Locurto,  157 N.J. 463, 470-71 (1999). The rule of deference is more  compelling where, as here, both judges made concurrent findings. Id. at 474. "Under the two-court rule, appellate courts ordinarily should not undertake to  alter concurrent findings of facts and credibility determinations made by two  lower courts absent a very obvious and exceptional showing of error." Ibid. (citation omitted). Therefore, appellate review of the factual and credibility  findings of the municipal court and the Law Division "is exceedingly narrow."                                                                             A-4666-16T1                                       8 
State v. Reece,  
222 N.J. 154, 167 (2015) (quoting State v. Locurto,  157 N.J. at  470).           N.J.S.A. 39:4-50(a) penalizes "operat[ing] a motor vehicle while under  the influence of intoxicating liquor, narcotic, hallucinogenic or habit -producing drug, or operat[ing] a motor vehicle with a blood alcohol concentration of 0.08%  or more by weight of alcohol in the defendant's blood . . . ." Defendant argues  that the State failed to prove him guilty of DWI beyond a reasonable doubt  because his BAC for both incidents fell below the 0.08% limit, and DRE  evidence is unreliable without laboratory testing being performed.                                          III.          We first address defendant's argument raised in Point I that the Law  Division judge erred in concluding that DRE evidence was admissible here  under the Frye standard. We disagree. N.J.R.E. 702 provides for the admission of expert testimony:              If scientific, technical, or other specialized knowledge              will assert the trier of fact to understand the evidence              or to determine a fact in issue, a witness qualified as an              expert by knowledge, skill, experience, training, or             education may testify thereto in the form of an opinion              or otherwise.          Expert testimony that is scientific in nature is only admissible if the method used by the expert has "a sufficient scientific basis to produce uniform                                                                           A-4666-16T1                                          9 
and reasonably reliable results so as to contribute materially to the ascertainment  of the truth." State v. Kelly,  
97 N.J. 178, 210 (1984) (citations omitted). In  State v. Bealor,  187 N.J. 574, 592-93 (2006), the Court noted that: "As part of  their required course of study, police officers must be trained in detecting drug- induced intoxication."   When dealing with scientific evidence, this State has  adopted the Frye standard of admissibility as set forth in State v. Harvey,  151 N.J. 117, 169-70 (1997). A proponent of a newly-devised scientific technology  can prove its general acceptance in three ways:             (1) by expert testimony as to the general acceptance,             among those in the profession, of the premises on which             the proffered expert witness based his or her analysis;              (2) by authoritative scientific and legal writings             indicating that the scientific community accepts the             premises underlying the proffered testimony; and              (3) by judicial opinions that indicate the expert's             premises have gained general acceptance.              [Harvey,  151 N.J. at 170(quoting Kelly,  97 N.J. at            210)].        The judge found DRE evidence "qualifies as scientific evidence subject to  judicial gatekeeping," and stated:              [B]ecause of the scientific background of many of the             steps of the protocol, DRE evidence, taken as a whole,             qualifies as being scientific enough to trigger a ruling             under the Frye-Harvey standard. The [c]ourt agrees                                                                            A-4666-16T1                                        10             with [d]efendant that DRE evidence is indeed             scientific.        As to the reliability of DRE evidence here, Judge DeMarzo found:             Nevertheless, New Jersey's continued reliance on DRE             evidence indicates the willingness that it still finds it to             be generally acceptable and reliable in the scientific             community. As previously stated, a scientific method             can be disputed, but the evidence it procures remains             admissible. Moreover, Dr. Pandina's disagreement of            such acceptance cannot in itself overturn the reliability             of certain scientific subject-matter because its             acceptability does not turn on a unanimous or universal             agreement. For these reasons, DRE evidence satisfies             the three requirements outlined in Harvey.             [Internal citations omitted.]       These facts were significant enough to support a conclusion that  defendant's intoxication "so affected [his] judgment or control as to make it improper for him to drive on the highways." Johnson,  42 N.J. at 165. Put  another way, defendant was under the influence because he suffered a  "substantial deterioration or diminution of the mental faculties or physical capabilities of a person . . . ." State v. Tamburro,  68 N.J. 414, 421 (1975). A  defendant's demeanor, physical appearance, slurred speech, and bloodshot eyes, together with poor performance on field sobriety tests, are sufficient to sustain  a DWI conviction. State v. Bealor,  187 N.J. at 588-89. Here, Officer Grawehr and Longo's observations of defendant, combined with his inability to                                                                             A-4666-16T1                                        11 
satisfactorily perform psycho-physical tests, were more than sufficient to sustain  his DWI convictions.        We also reject defendant's argument that the Law Division judge improvidently relied upon DRE evidence. Further, we are satisfied that the  record contains substantial credible evidence to support the findings by the Law Division judge that defendant was driving while under the influence of  hallucinogenic and habit-producing drugs, without regard to the Alcotest readings. Contrary to defendant's contentions, there was ample evidence to  support his convictions based on his physical condition at the time of the stops. As to the February 13, 2015 incident, DRE expert, McNichol, testified that  defendant "possessed slow coordination, unclear speech, stale breath, a pale  face, bloodshot eyes, reddened nasal area, and a white paste on his tongue."       As to the August 17, 2015 incident, based upon DRE expert Subrizi's  testimony, the judge found "an abundance of evidence" to find defendant guilty beyond a reasonable doubt based upon "[h]is physical appearance, cognitive  expressions, and multiple failed sobriety tests . . . ." The observations and opinions of McNichol and Subrizi were sufficient to allow Judge DeMarzo to  determine beyond a reasonable doubt that defendant was guilty of driving while intoxicated on both occasions. Accordingly, we find no basis for reversal here.                                                                             A-4666-16T1                                        12 
Defendant's other arguments do not warrant further discussion.           R. 2:11-  3(e)(1)(E).        We conclude that Judge DeMarzo's factual findings are fully supported by  the record, and in light of these facts, his legal conclusions are unassailable for  the reasons expressed in his well-reasoned opinion.       Affirm.                                                                               

Miranda violated here where detectives failed to advise subject of charges State v. Vincenty

Miranda violated here where detectives failed to advise subject of charges State v. Vincenty
March 11, 2019 
FERNANDEZ-VINA, J., writing for the Court. 
In State v. A.G.D., the Court held that “[t]he government’s failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights.” 178 N.J. 56, 68 (2003). Defendant Adrian Vincenty argues that two detectives failed to inform him of the criminal charges filed against him when they interrogated him and asked him to waive his right against self-incrimination. Relying on A.G.D., Vincenty filed a motion to suppress statements he made to the detectives. The Court considers that motion. 
Detectives Thomas Glackin and Brian Mera questioned Vincenty about the attempted robbery and attempted murder of Jerry Castellano. Castellano was attacked by two men on March 20, 2011. One of the assailants wore a mask and dropped or threw it away after the attack. Castellano ultimately survived the attack. Police officers recovered the mask on the night in question. The mask was tested for DNA -- and Vincenty’s DNA was found on it. The detectives also identified Vincenty from the video recording of the attack. 
Detective Mera read Vincenty his rights -- and Vincenty was given and read a form detailing his rights. At the bottom of the form, it read: “I acknowledge that I have been advised of the constitutional rights as stated above.” Vincenty signed the form. 
Detective Mera explained that the police identified Vincenty from the video recording of the attack and sought his assistance to identify the second assailant on the video recording. Detective Mera told Vincenty that “the judge already charged [him],” explained that they obtained Vincenty’s DNA from the mask, and informed him that they “have the charges.” 
Vincenty indicated that he was confused and denied any involvement in the attack. Detective Mera said, “We have you with the DNA and we have you . . . with gun charges, right?” Vincenty responded, “Ah huh.” Vincenty nonetheless continued to deny any involvement in the robbery. Detective Mera then told Vincenty that they “presented the evidence to the judge,” who “put the charges in.” Vincenty still indicated that he was “surprise[d] that [the detectives] ha[d] . . . evidence against [him].” 
The detectives showed Vincenty a picture of the assailants. Vincenty told the detectives one of the assailants “looks like [him]” and that he has a coat similar to one worn by one of the assailants. Detective Mera explained that they had shown a judge all of the evidence because in order for them to speak with Vincenty, “[they] needed the charges.” The detectives attempted to elicit information about the other assailant. Vincenty said, “I don’t know him very well like that,” and “I met him thru [sic] another friend of mine.” 
A few moments later, Detective Mera mentioned that they had charges against Vincenty. Vincenty then stated that he did not get a letter from a judge about the charges and asked the detectives what the charges were. The officers showed Vincenty a list of the charges and explained to Vincenty that he had been charged with attempted homicide, robbery, and conspiracy to commit robbery. Shortly thereafter, Vincenty told the detectives he wanted to talk to a lawyer and expressed concern that there were charges pending against him. The detectives continued questioning Vincenty, who again asked to speak with a lawyer and indicated that he was both surprised and confused. The detectives then acknowledged Vincenty’s desire to speak with a lawyer and stopped questioning him. 
A grand jury indicted Vincenty, who then filed a motion to suppress the statements he made to Detectives Glackin and Mera. The State indicated that it would not seek to admit any statements Vincenty made after he first requested to speak with a lawyer, and the trial court found that, until Vincenty requested to speak with a lawyer, his statements were the result of a “knowing, voluntary and intelligent waiver of his Miranda rights.” 
Vincenty entered into a plea agreement with the State whereby he pleaded guilty to first-degree attempted murder and reserved his right to appeal the denial of his suppression motion. An Appellate Division panel affirmed the trial court’s denial of Vincenty’s motion to suppress. The Court granted Vincenty’s petition for certification. 232 N.J. 278 (2018). 
HELD: The record reveals that the detectives failed to inform Vincenty of the charges filed against him when they read him his rights and asked him to waive his right against self- incrimination. That failure deprived Vincenty of the ability to knowingly and intelligently waive his right against self-incrimination. Pursuant to A.G.D., Vincenty’s motion to suppress should have been granted. 
1. The right against self-incrimination is one of the most important protections of the criminal law. Individuals, as holders of the right, may waive the right against self- incrimination. Law enforcement officers must first advise a suspect of the right against self- incrimination before attempting to obtain a waiver of the right. The State carries the burden of proving beyond a reasonable doubt that the suspect’s waiver was knowing, intelligent, and voluntary in light of all the circumstances. 
2. In A.G.D., detectives questioned the defendant at his home about allegations of sexual abuse. 178 N.J. at 59. The detectives did not tell the defendant that a warrant for his arrest had been issued. Ibid. The defendant confessed to the alleged sexual abuse and was subsequently convicted of related offenses. Id. at 60-61. Before trial, the defendant moved to suppress his confession. Id. at 61. The Court held that the defendant’s confession should have been suppressed, id. at 69, because the “government’s failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights,” id. at 68. If suspects are not informed that a criminal complaint or arrest warrant has been filed against them, they necessarily lack “critically important information” and thus “the State cannot sustain its burden” of proving a suspect has knowingly and intelligently waived the right against self-incrimination. Ibid. 
3. A.G.D. thus calls for law enforcement officials to make a simple declaratory statement at the outset of an interrogation that informs a defendant of the essence of the charges filed against him. That information should not be woven into accusatory questions posed during the interview. The State may choose to notify defendants immediately before or after administering Miranda warnings, so long as defendants are aware of the charges pending against them before they are asked to waive the right to self-incrimination. 
4. Vincenty’s interrogation is precisely what A.G.D. prohibits, and it substantiates A.G.D.’s holding. Unaware that charges had been filed against him, Vincenty appeared willing and ready to waive his right against self-incrimination. However, when Vincenty was informed of the criminal charges filed against him, everything changed. His willingness to speak with the detectives dissipated. As that chain of events demonstrates, Vincenty’s ability to knowingly and intelligently decide whether to waive his right against self-incrimination was fundamentally altered when he was informed of the criminal charges filed against him. Withholding that critically important information deprived Vincenty of the ability to knowingly and voluntarily waive the right against self-incrimination.  
5. The trial court and Appellate Division erred in holding Vincenty knowingly and intelligently waived his right against self-incrimination. Consideration of harmless error would not change matters here because some of Vincenty’s statements could be fairly characterized as inculpatory, and Vincenty’s conduct reveals that his decision to plead guilty was influenced by the trial court’s suppression ruling. 
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings. 
State v. Adrian A. Vincenty) (079978)

Refusal to let police into home is not criminal interferenceState v. Fede State v. Fede

Refusal to let police into home is not criminal interferenceState v. Fede  State v. Fede __ NJ __ (2019(079997)  (A-53-17) Decided March 12, 2019.

TIMPONE, J., writing for the Court.
In this appeal, the Court considers whether defendant Andrew J. Fede violated the criminal obstruction statute, N.J.S.A. 2C:29-1(a), when he refused to remove the chain lock from the door to his home and allow warrantless entry by police officers who were responding to a report of potential domestic violence. 
In March 2014, two police officers were dispatched to a multi-family building in response to a call reporting a potential domestic violence situation. Patrol Officer Zoklu and Sergeant Becker of the Cliffside Park Police Department knocked on the door of defendant’s apartment. Defendant partially opened the door, which was secured with a chain lock. 
The officers identified themselves, told defendant they were investigating a domestic disturbance, and sought entry into his home to check on the well being of the occupants. The officers learned that defendant lived with Stephanie Santiago. Defendant explained that she was away in South Carolina and he was alone in the apartment. 
As the conversation continued, the situation became more contentious. Defendant asked if they had a warrant. The officers explained they were acting under the community- caretaking doctrine and were permitted to enter his home without a warrant to ensure the welfare of the occupants. Defendant demanded a warrant. He remained by the door in view of the officers, refusing to unchain his lock. In an effort to defuse the situation, the officers gave defendant the telephone number of their supervisor. Fede spoke to the supervisor, who confirmed the officers’ reason for seeking entry. The officers were unable to convince Fede to unchain his door. 
Concerned about the possibility of domestic violence, the officers broke the chain lock on Fede’s door and entered his apartment. The entry was uneventful, and after being instructed to move into the building’s hallway, Fede stepped outside of his apartment and stood next to Zoklu as other officers searched the home. The search confirmed that defendant was alone in the apartment. The officers thereafter placed Fede under arrest for obstruction of the administration of the law under N.J.S.A. 2C:29-1(a) for failing to remove the chain lock from his door. 
A bench trial was held in the Cliffside Park Municipal Court. The trial court found the officers had an objectively reasonable basis to enter Fede’s apartment given the report of domestic violence and that Fede had a legal obligation to admit officers into his home. The court found Fede’s refusal to unchain his lock so the officers could enter an obstacle for purposes of N.J.S.A. 2C:29-1(a). 
On Fede’s first appeal, a Law Division judge affirmed defendant’s conviction, concluding that because defendant had “purposely prevented” officers from gaining entry into his home by “refusing to unchain his door,” he “created an obstacle, which prevented the police from performing their official function.” 
On further appeal to the Appellate Division, the panel affirmed the Law Division’s holding, additionally relying on State v. Reece, 222 N.J. 154 (2015). 
The Court granted Fede’s petition for certification. 232 N.J. 412 (2018). 
HELD: The Court stresses that the police officers had the right to enter defendant’s home under the emergency-aid doctrine, which permits warrantless entry under circumstances like those presented in this case. Because defendant’s refusal to remove the door chain did not constitute an affirmative interference for purposes of obstructing justice within the meaning of the obstruction statute, the Court reverses the judgment of the Appellate Division and vacates defendant’s conviction. 
1. As a preliminary matter, the Court considers the appropriateness of the officers’ actions in breaking the door’s chain lock. Among their extensive duties, police officers serve a vital community-caretaking role. In this role, they are given the latitude to make warrantless entry into a home under the emergency-aid exception to the warrant requirement. Where, as here, a report of domestic violence provides the police with an objectively reasonable basis to believe an emergency exists inside the home, a warrantless search is permitted for the limited purpose of ensuring the welfare of the occupants in the home. The police officers at the heart of this matter acted properly and professionally under the emergency-aid doctrine in breaking the chain lock to enter defendant’s apartment in order to ascertain the validity of reported allegations of domestic violence within the apartment.   
2. Charging defendant with obstruction for refusing to unchain the door lock, however, is a different matter. The police’s having the right to enter Fede’s home does not lead to the conclusion that Fede’s refusal to remove the chain from the lock on his door constituted obstruction within the meaning of the criminal obstruction statute.   
3. To violate N.J.S.A. 2C:29-1(a), a person must not only “purposely obstruct[], impair[] or pervert[] the administration of law” but must do so through one of the specifically enumerated acts in the statute, through “physical interference or obstacle,” or through an “independently unlawful act.” In its second sentence, the statute specifically distinguishes the above behaviors from failures to perform non-official duties and other conduct. The statute is unambiguous. It defines the explicit means by which one may be criminally liable for obstruction and requires affirmative interference. Otherwise, the outer contours of the statute would be difficult to limit. For example, a defendant could be convicted of obstruction for sitting on his couch and declining to respond to the police officer’s knock. Commentary from the Model Penal Code supports the requirement of an affirmative act. To find criminal liability under N.J.S.A. 2C:29-1 requires an affirmative act or some affirmative interference. 
4. Fede’s refusal to remove the already-fastened chain lock required no physical effort; it was not an act. It would be both counterintuitive and contrary to the plain meaning of the term “affirmative,” which requires effort, to find that defendant affirmatively interfered with the police by failing to remove an already-fastened chain lock from his door. In Reece, officers responded after receiving a dropped 9-1-1 call originating from Reece’s home. 222 N.J. at 158. Once the Court established that the officers’ warrantless entry was lawful, it concluded that the defendant’s attempt to slam and lock the door on the officers to prevent them from performing their official function constituted obstruction. Id. at 172. Specifically, the Court found that Reece attempted to prevent the officers’ entry “by means of . . . physical interference or obstacle.” Ibid. (quoting N.J.S.A. 2C:29-1(a)). Here, Fede did not undertake an affirmative act. His use of the ordinary door-chain-lock was his standard practice, not a circumstantial reaction to the officers’ knock. As the testimony revealed, Fede did not try to prevent the officers from breaking the chain, offering no physical resistance once the officers broke the chain and entered. Indeed, he complied with instructions to wait outside his home while the search was conducted. Although his refusal to remove the lock to allow the officers to perform their necessary, lawful, and focused search is not an advisable course of action and could have escalated the situation, it was not criminal. There was thus no factual basis for Fede’s obstruction conviction under the circumstances of this case. 

Guilty finding vacated based on state failure to provide evidence State v. Brown

Guilty finding vacated based on state failure to provide evidence State v. Brown
State v.   Brown (A-23/24-17) (079553/079556) Argued October 10, 2018 -- Decided February 4, 2019 
SOLOMON, J., writing for the Court.
The Court considers whether the State’s failure to produce nineteen discovery items until one week after the start of the trial of defendants William Brown and Nigil Dawson for the murder of Tracy Crews violated defendants’ due process rights under Brady v. Maryland, 373 U.S. 83 (1963). The Court’s Brady analysis requires review of two evidentiary rulings, made after the withheld evidence was provided to defendants, because those rulings circumscribed the evidence on which the State and defense were able to rely. Also at issue is the appropriate remedy for a Brady violation under the circumstances of this case. 
In 2008, Crews was shot in his home. His wife, Sheena Robinson-Crews, asked him, “Who did this to you?” She claimed that her dying husband incriminated defendants. Police arrived, and Robinson-Crews made two phone calls within earshot of Detective Bolognini, who reported what he overheard to Detective Norton. Norton, in turn, swore in an affidavit (the Norton Affidavit) that Bolognini heard Robinson-Crews apparently call “who[m]ever shot the victim” and say, “You got what you came for, you did not need to shoot him,” and then make a second call, in which she said, “Those boys did not have to shoot him. They got what they came for . . . .” Robinson-Crews later called Crews’s mother, Barbara Portis, and told her that Crews said “Paperboy and Youngin” had shot him. Robinson-Crews identified “Youngin” as Dawson and “Paperboy” as Brown. About two months after Crews’s death, Robinson-Crews filed a false police report against Brown saying he pointed a gun at her. 
The case went cold for approximately three years, at which time Robinson-Crews admitted in an interview at Muncy State Correctional Institution in Pennsylvania, where she was incarcerated for drug offenses, that her husband “only uttered Paperboy” in his dying declaration and that she “added on Youngin.” 
Defendants were charged with Crews’s murder, arrested, and incarcerated. Isaiah Franklin and Terrell Black were in the Mercer County Correctional Center where they met and spoke to Brown and Dawson. According to Franklin and Black, Brown and Dawson made admissions to them regarding Crews’s murder. After notifying prosecutors of defendants’ admissions, Franklin and Black arrived at favorable plea agreements in exchange for their testimony against Brown and Dawson. Almost a year later, a detective received a letter representing that Robinson-Crews admitted to inmates at the Muncy Correctional Institution that she had conspired to kill her husband (the Muncy Report). 
Pretrial motions were heard in 2014. The motion judge ruled that Crews’s alleged statement of who shot him was inadmissible because Robinson-Crews was not credible. 
One week after the trial started, after counsel made opening statements and examined four State witnesses, the prosecutor turned over eighteen reports that concerned facts discussed in the testimony of the investigating officers who had already testified. The records included the Norton Affidavit. Defense counsel obtained the cell-phone records of defendants, which showed they did not receive phone calls from Robinson-Crews on the night of the murder. The following Monday, the State disclosed discovery item nineteen, the Muncy Report. The trial court conducted an N.J.R.E. 104 hearing and ruled that the defense could challenge the Muncy report by calling a witness and through cross-examination. 
At trial, the prosecutor called Robinson-Crews to testify. The State argued that a question asked by defense counsel on cross-examination opened the door to testimony about Crews’s dying declaration. After an N.J.R.E. 104 hearing, the trial judge reversed the motion judge’s holding and allowed Robinson-Crews to testify to the jury about the dying declaration. The judge also ruled that Portis could testify regarding what Robinson-Crews claimed to her Crews said as he was dying -- that Paperboy and Youngin shot Crews. Defense counsel sought to introduce as a past recollection recorded the Norton Affidavit to impeach Robinson-Crews’s credibility. The court ruled it inadmissible, in part because of the “remarkable” inability of Detective Bolognini to recall any of the conversations. 
A jury found defendants guilty of murder, robbery, and a weapons offense. The trial judge denied their motions for a judgment of acquittal notwithstanding the verdict or a new trial, and the Appellate Division affirmed their convictions and sentences. The Court granted defendants’ petitions for certification. 231 N.J. 526 (2017); 231 N.J. 533 (2017). 
HELD: The State’s failure to produce nineteen discovery items until one week after the beginning of defendants’ murder trial did violate defendants’ due process rights under Brady. The Court reaches this conclusion, in part, because the trial court abused its discretion by excluding admissible impeachment and exculpatory evidence withheld by the State. Though there is no evidence or allegation that the State acted in bad faith or intentionally in failing to timely produce the discoverable material, the Court nonetheless vacates defendants’ convictions and remands for a new trial because defendants were deprived of a fair trial. 
1. Three essential elements must be considered to determine whether a Brady violation has occurred: (1) the evidence at issue must be favorable to the accused, either as exculpatory or impeachment evidence; (2) the State must have suppressed the evidence, either purposely or inadvertently; and (3) the evidence must be material to the defendant’s case. The first Brady element is clearly satisfied here. Withholding the Norton Affidavit and the Muncy Report deprived defense counsel of the opportunity to cite the evidence of third-party guilt in their openings and to cross-examine the four officers who had already testified against defendants about evidence acquired at the crime scene and referred to in the withheld documents. The second Brady element is also satisfied. The State acknowledges that the withheld reports were in a file in the State’s office for a significant time before trial.   
2. The third Brady element requires that the suppressed evidence be material to defendants’ case. Evidence is material if there is a reasonable probability that timely production of the withheld evidence would have led to a different result at trial. Here, the State’s case relied, in part, on Robinson-Crews’s testimony, but Robinson-Crews gave inconsistent statements to police, erroneously implicated Dawson in Crews’s dying declaration, and filed a false police report against Brown. The circumstantial evidence upon which the State relied was, likewise, assailable. Because counter-arguments were available to challenge a great deal of the evidence on which the State relied at trial, the materiality inquiry is influenced by the following two evidentiary rulings made after the withheld evidence was provided to defendants: (1) overturning a pretrial determination that excluded Crews’s dying declaration; and (2) excluding the Norton Affidavit as unreliable.   
3. Crews’s statement qualifies as a dying declaration under N.J.R.E. 804(b)(2) and it has substantial probative value, see N.J.R.E. 403; the trial judge did not abuse his discretion by overturning a pretrial ruling excluding Crews’s dying declaration. However, the trial court abused its discretion by excluding the Norton Affidavit, which was used in four separate search warrant applications. Surveillance video footage of the crime scene showing Detective Bolognini near Robinson-Crews supports that she was on the phone and that the detective was within earshot of her. The records of defendants’ known cell phones show they did not receive these phone calls, and Detective Norton swore before a judge to the veracity of the information hours after the murder took place. N.J.R.E. 803(c)(5) specifically allows that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence. As to the third Brady element, materiality, the Court stresses that the trial court admitted the dying declaration one week after trial began. Although it was proper to admit the declaration, the timing of its admission was highly prejudicial to the defense. That prejudice was compounded by the trial court’s later exclusion of the Norton Affidavit and was not substantially lessened by allowing defendants to challenge the Muncy Report. Because there is a reasonable likelihood that the State’s Brady violation, in light of the trial court’s evidentiary rulings, affected the judgment of the jury, the third Brady element is satisfied. 
4. The remedy of dismissal of an indictment with prejudice is not available here because there is no allegation that the State intentionally withheld Brady information and no evidence of prosecutorial misconduct. However, because the State’s Brady violation, in the circumstance of the trial court’s evidentiary rulings, undermines confidence in the jury’s verdict, a new trial is required. On retrial, Portis’s statement can be offered to rebut a charge of recent fabrication under N.J.R.E. 803(a)(2), but only as to Brown. And the trial court should review, pretrial, offered testimony of jailhouse informants Franklin and Black to resolve any issues under Bruton v. United States, 391 U.S. 123 (1968). 
The judgment of the Appellate Division is REVERSED, defendants’ convictions are VACATED, and the matter is REMANDED for a new trial.