State v. Broom-Smith

• Decision Date: 03 April 2009
• Docket Number: DOCKET NO. A-3526-07T4.
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Jason V. BROOM-SMITH, Defendant-Appellant.
• Court: New Jersey Superior Court

967 A.2d 359

406 N.J. Super. 228

STATE of New Jersey, Plaintiff-Respondent, v. Jason V. BROOM-SMITH, Defendant-Appellant.

DOCKET NO. A-3526-07T4.

Superior Court of New Jersey, Appellate Division.

Argued March 9, 2009.

Decided April 3, 2009.

Steven E. Nelson argued the cause for appellant (Nelson, Fromer & Crocco, attorneys; Mr. Nelson, of counsel; Matthew Jordan, on the brief).

William K. Meighan, Assistant Prosecutor, argued the cause for respondent (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Samuel J. Marzarella, Senior Assistant Prosecutor, of Counsel; Mr. Meighan, on the brief).

Before Judges LISA, REISNER and ALVAREZ.¹

The opinion of the court was delivered by

REISNER, J.A.D.

After the denial of his motions for discovery and suppression of evidence, defendant Jason Broom-Smith pled guilty to first-degree possession with intent to distribute in excess of five ounces of cocaine, N.J.S.A. 2C:35-5a(1). Consistent with the terms of the plea agreement, he was sentenced to twenty-five years in prison with sixty-five months of parole ineligibility. As permitted by the plea agreement, on this appeal, he is challenging the January 11, 2008 judgment of conviction; the October 5, 2007 order denying his suppression motion; and the January 11, 2007 order denying his motion to compel additional discovery concerning the search warrant that led to the discovery of the cocaine. We affirm, concluding that the warrant was not defective and defendant was not entitled to additional discovery aimed at challenging its validity.

I

These are the most pertinent facts. Based on information from a confidential informant, law enforcement officers arranged for the informant to make a "controlled buy" of drugs from defendant. The purchase was structured in such a way that the officers could be certain that the informant did not possess any drugs prior to the purchase from defendant, and they kept the informant under constant visual surveillance before, during and after the purchase. The investigators observed the informant going into defendant's house and saw defendant come out of his house, retrieve a small package from his vehicle, and re-enter the house. Once the purchase was complete, the informant gave the drugs to the investigators, who field-tested them and found them to be cocaine. On a second occasion, the informant advised investigators that defendant had told the informant to come to defendant's house to buy cocaine.

Based on that information, Melissa Matthews, an Ocean County prosecutor's investigator, applied for and obtained warrants to search defendant's car and his house. The search of the vehicle was negative, but a large quantity of cocaine was found in defendant's house.

Defendant challenged the warrant application based on the following circumstances. The warrant was signed by Judge Sheehy, who was the Berkeley Township municipal judge, although defendant's house was located in Dover Township. Both towns are in Ocean County. The Ocean Vicinage Assignment Judge had entered an order in 2003, designating every municipal judge as an acting judge for every municipality in the county. In the trial court, as on this appeal, defendant contended that the order was overbroad and illegal. He asserted that N.J.S.A. 2B:12-6 and Rule 1:12-3(a) were intended to allow an assignment judge to designate an acting municipal judge from another municipal court to act as a substitute in situations where the regularly-assigned judge was disqualified. He contended that those provisions were not intended to allow, for all purposes, every municipal judge in the county to act in place of any and every other municipal judge for any reason. He contended that this would, among other things, encourage judge-shopping on warrant applications.

Premised on this theory, defendant sought discovery aimed at determining whether the two regularly-assigned Dover Township judges were unavailable, or for what other reasons the prosecutor's investigator had applied to the Berkeley Township judge for the warrant. Defendant also sought additional discovery concerning the background circumstances relating to the warrant application. We briefly review the history of these requests.

On September 6, 2006, defense counsel sent the prosecutor's office a three-page letter seeking a wide variety of discovery concerning the investigation leading up to the warrant application, including any additional reports prepared by Investigator Matthews, her notes of communications with the confidential informant, a report of Investigator Steinhauer which was referenced in Matthews' report, and information concerning the chain of custody of the drugs during the period after the drugs were field-tested. He also sought information concerning the jurisdiction of the judge who issued the warrant.

By letter dated October 10, 2006, an assistant prosecutor sent defense counsel additional discovery including Investigator Steinhauer's report plus reports of a detective and a police officer, and the "CAD [dispatch] report for this matter." The assistant prosecutor did not include any information about the municipal judge.

By letter dated October 27, 2006, defense counsel asked the prosecutor for additional discovery addressed exclusively to the issue of whether the municipal judge who issued the warrant had jurisdiction to do so. Counsel did not request any additional discovery concerning the investigation prior to the warrant application. By letter dated November 8, 2006, the prosecutor's office declined to produce the discovery requested in the October 27 letter, contending that it was irrelevant.

On November 29, 2006, defense counsel filed a motion to compel discovery. The motion was primarily directed at obtaining discovery concerning the jurisdiction of the municipal judge who issued the warrant. However, counsel also demanded "[a]ny and all investigation reports, supplemental investigation reports and/or contemporaneous notes of any law enforcement personnel involved in the investigation of defendant ... before the execution of the search warrants and arrest of defendant on January 24, 2006." He also sought chain of custody documentation and laboratory reports concerning the cocaine allegedly sold by defendant to the informant.

In an accompanying certification of counsel, which included both factual recitations and legal argument, counsel focused on his need for the requested discovery as it related to his ability to challenge the jurisdiction of the judge who issued the warrant. Counsel submitted a supplemental certification on December 13, 2006, addressing only the issue of the municipal judge's jurisdiction and his application for discovery on that issue.

The discovery motion was heard on December 20, 2006. At the argument, defense counsel indicated his awareness that the Berkeley Township municipal court was in session on the day and time when Matthews applied for the warrant, and the Dover Township municipal court was not, but he asserted that this did not authorize the Berkeley Township judge to sign the warrant for defendant's property in Dover Township. He contended that the statute and court rules only allowed such a substitution in case the Dover Township municipal judges had conflicts of interest or were actually unavailable. The prosecutor contended that N.J.S.A. 2B:12-6 was broader in scope and permitted a substitution for any good cause.

With respect to the request for discovery concerning the municipal court judges, the trial court ruled that defendant's argument could be decided as a matter of law without the need for discovery. The judge concluded that the assignment judge's order was not as narrow as the defense urged, and that the warrant application was properly submitted to "an independent magistrate with authority to act." He concluded:

[T]here is no requirement in the law for this officer to establish here the protocol or the pecking order of what judge was available.

I think in the practicality of everyday life at any given moment one judge may be available as opposed to another judge.

The trial judge concluded that defendant's additional discovery application was improperly aimed at discovering the identity of the confidential informant. See State v. Spivey, 179 N.J. 229, 241, 844 A.2d 512 (2004). The judge also ruled that the discovery sought was irrelevant because defendant was not charged with selling drugs to the informant, and defendant had not shown any good faith basis for what would otherwise simply be a "fishing expedition":

[W]hen one comes forward and says I want to attack the substance of the allegations or the statements of fact contained in the affidavit, one has the responsibility to show that there is some wrongdoing or some falsehood by independent evidence. Not a fishing expedition.

There has to be some showing, as a matter of fact. Some allegation.

....

... [I]t is not important and it is not relevant and it is not material whether or not the drugs that were purchased by the C.I.—alleged to have been purchased by the C.I. on whatever date were tested and proved positive for drugs or not. The point is they were represented to be drugs.

There was [a] ... confidential informant controlled purchase of alleged CDS. That is sufficient by itself as an allegation to support the finding of probable cause to believe that there is the sale of CDS. A confidential informant and the lab report submission.... [T]he information that counsel seeks here would merely go to provide the defense and the defendant an opportunity to zero in on the precise time and place of the ... controlled purchase of the C.I. [as] alleged in the affidavit, and therefore would give up the identity of the confidential informant. And there is no showing here that that disclosure should be made.

....

... In order to attack the affidavit, you don't do it by way of a fishing expedition and say give me the name of the confidential informant...