State v. Desir

Decision Date09 February 2021
Docket Number083584,A-43 September Term 2019
Citation245 N.J. 179,244 A.3d 737
Parties STATE of New Jersey, Plaintiff-Appellant, v. Herby V. DESIR, a/k/a Johnathan Desir, Defendant-Respondent.
CourtNew Jersey Supreme Court

Steven A. Yomtov, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Steven A. Yomtov, of counsel and on the briefs).

Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Alicia J. Hubbard, of counsel and on the briefs).

Patrick F. Galdieri, II, Assistant Middlesex County Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Angelo J. Onofri, Mercer County Prosecutor, President, attorney; Patrick F. Galdieri, II, of counsel and on the brief).

Elyla Huertas argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Elyla Huertas, Alexander Shalom, and Jeanne LoCicero, on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

A confidential informant (CI) made a controlled purchase of narcotics from defendant. That purchase formed the probable cause for issuance of a search warrant for defendant's home. Execution of the search warrant led to charges against defendant for multiple drug and weapons offenses. Defendant was not charged with the underlying narcotics sale to the CI.

Defense counsel filed a motion to suppress the evidence seized from defendant's home pursuant to the search warrant and for a Franks hearing1 because defendant claimed he never sold Methylenedioxy-N-ethylcathinone (sometimes referred to as Molly) from his house. Five months later, defendant filed a motion to compel discovery. Defendant sought items related to the uncharged sale by defendant to the CI, including a laboratory report mentioned in the search warrant affidavit, any police paperwork, and recordings of the phone calls between defendant and the CI. The State did not provide the requested discovery.

The trial court denied defendant's motion to suppress and for a Franks hearing, and months later denied his motion to compel discovery. Defendant then pled guilty to second-degree possession of Methylenedioxy-N-ethylcathinone with intent to distribute.

Defendant appealed. The Appellate Division determined that defendant was entitled to the discovery he requested and remanded to the trial court so that the defendant could elect to either withdraw his guilty plea or accept his earlier conviction and sentence.

The issue in this appeal is whether defendant is entitled to discovery regarding the uncharged purchase of narcotics by the CI. We determine that a defendant seeking discovery in connection with a Franks hearing may -- in the trial court's discretion and on showing a plausible justification that casts reasonable doubt on the veracity of the affidavit -- be entitled to limited discovery described with particularity that is material to the determination of probable cause. We therefore affirm and modify the Appellate Division's judgment and remand to the trial court for consideration under the standard adopted herein.


We derive the facts of this case from the trial and appellate records, including the affidavit submitted by a detective from the Union County Prosecutor's Office in support of the search warrant application.

That affidavit stated that a CI, who had previously provided reliable information that led to arrests, had contacted the detective and claimed defendant stored and sold Molly at his home. According to the affidavit, the detective acted on that tip by conducting two consensual interceptions of telephone conversations between the CI and defendant, and he overheard the two discuss the sale of Molly and firearms. The affidavit stated that, during the second call, defendant told the CI to come to his house. The detective followed the CI to defendant's residence and monitored the home until after the CI exited. Afterward, the detective and the CI met at a pre-arranged location, where the CI gave the detective a substance obtained from defendant.

The affidavit stated that the "suspected ‘Molly’ obtained from [defendant] was submitted to the Union County Prosecutor's Office Laboratory where it was analyzed and tested positive for [Molly,] a Schedule I controlled dangerous substance." The affidavit did not state that the detective provided the CI with "buy money" with which to purchase the drugs.

Based solely on that affidavit, a judge granted a no-knock search warrant for defendant's home, where the police recovered 125 ounces of Molly, a handgun, hollow point bullets, currency, and drug paraphernalia.


A Union County grand jury thereafter indicted defendant on the following drug possession charges relating to Methylenedioxy-N-ethylcathinone: third-degree possession, N.J.S.A. 2C:35-10(a)(1) ; second-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(4) ; third-degree possession with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 ; and second-degree possession with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. The grand jury also charged defendant with second-degree possession of a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1(a) ; and fourth-degree possession of hollow point bullets, N.J.S.A. 2C:39-3(f).

Defendant filed a motion to suppress the contraband seized by police during the execution of the search warrant and for a Franks hearing. Defense counsel argued that the search warrant affidavit "was so defective and/or made with reckless disregard for truth that the judge who signed the warrant could not possibly have fairly evaluated the existence of probable cause." In support of his motion for a Franks hearing, counsel asserted that, contrary to the allegations in the search warrant affidavit, defendant did not sell Molly from his home.

Five months later, defendant filed a motion to compel discovery pursuant to Rule 3:13-3(b), seeking the detective's initial investigation report, any proof of money provided to the CI for the controlled buy, laboratory reports, and a transcript or audio recording of the consensual interceptions between defendant and the CI. Defendant reiterated his denial that he was selling Molly out of his home and argued he was not on a "fishing expedition" to determine the identity of the CI.

The trial court first heard argument on defendant's motion to suppress and for a Franks hearing. The court denied the motion, finding defendant had failed to meet his burden of demonstrating that any of the statements in the search warrant affidavit were untrue.

Six months later, a different judge considered and denied defendant's motion to compel discovery. The judge found defendant's discovery request to be a fishing expedition to uncover the identity of the CI. Relying in part on the previous denial of defendant's motion for a Franks hearing, the judge concluded that further discovery relating to the validity of the warrant would be irrelevant to the charges defendant faced.

Defendant pled guilty to second-degree possession of Methylenedioxy-N-ethylcathinone with intent to distribute. He reserved his right to appeal the denial of his motions to suppress and compel discovery. The trial court sentenced defendant to a seven-year prison term with three-and-one-half years of parole ineligibility. The remaining counts of the indictment were dismissed.


The Appellate Division reversed the denial of defendant's motion to compel discovery and remanded for further proceedings. State v. Desir, 461 N.J. Super. 185, 187, 219 A.3d 586 (App. Div. 2019). The Appellate Division concluded that,

because defendant was not able to investigate anything in the detective's affidavit by obtaining routine discovery that should have been automatically provided to him, defendant did not have a fair opportunity to pursue his motion to suppress the evidence seized during the search authorized by the warrant or to obtain a Franks hearing.
[ Id. at 194, 219 A.3d 586.]

The Appellate Division permitted defendant, after receiving discovery, "either to withdraw his plea and proceed to trial ... or to accept his earlier conviction and sentence." Ibid. (omission in original) (quoting State v. Cummings, 184 N.J. 84, 100, 875 A.2d 906 (2005) ).

The Appellate Division decided that defendant needed access to the lab report to "mount a viable attack on the validity of the search warrant." Id. at 192, 219 A.3d 586. Thus, "the timing of the court's consideration of the motion [to suppress] unduly prejudiced defendant." Ibid. Acknowledging a defendant's already heavy burden under Franks, the Appellate Division found the burden for this defendant "even more onerous because the State had still not responded to defendant's request for specific information about the warrant application, including a copy of the laboratory report." Id. at 190, 219 A.3d 586. The Appellate Division therefore held that considering the motion to compel discovery after denying the motion to suppress "did nothing to remedy the prejudice defendant had already suffered." Id. at 192-93, 219 A.3d 586.

Even though the indictment did not charge defendant with the sale of narcotics to the CI, the Appellate Division found that, under Rule 3:13-3(b)(1)(C), the State should have automatically given defendant the laboratory report -- along with any police reports, R. 3:13-3(b)(1)(E) and (H), and video and sound recordings, R. 3:13-3(b)(1)(A) -- once the indictment was filed. 461 N.J. Super. at 193, 219 A.3d 586. As to the contention that defendant sought discovery solely to determine the identity of the informant, the Appellate Division noted that "defendant did not object to receiving redacted versions" of the records. Ibid.

Finally, the Appellate Division distinguished State v....

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7 cases
  • State v. Ramirez
    • United States
    • New Jersey Supreme Court
    • November 21, 2022
    ...must be shown to be relevant to the issues in the case in order to be subject to disclosure. R. 3:13-3(b)(1) ; see State v. Desir, 245 N.J. 179, 193, 244 A.3d 737 (2021). Another important limit on a defendant's right to discovery is "the chilling and inhibiting effect that discovery can ha......
  • State v. Szemple
    • United States
    • New Jersey Supreme Court
    • June 23, 2021
    ...took place and was exculpatory, its disclosure would have been mandatory under both Brady and Rule 3:13-3(b)(1). See State v. Desir, 245 N.J. 179, 193, 244 A.3d 737 (2021). The continuing duty to disclose such materials imposed by Rule 3:13-3(f), however, ends with a defendant's conviction;......
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    • United States
    • U.S. District Court — District of New Jersey
    • March 28, 2023
    ...of Galfy's will and the Estate's financial records to prove his claims. As explained by the New Jersey Supreme Court in State v. Desir, 245 N.J. 179, 193 (2021), N.J. Ct. R. 3:13-3(b)(1) addresses the discovery to which a New Jersey criminal defendant is entitled, and the Rule specifically ......
  • State v. Mauro
    • United States
    • New Jersey Superior Court — Appellate Division
    • May 10, 2023
    ...defendant's "right to automatic and broad discovery of the evidence the State has gathered in support of its charges." State v. Desir, 245 N.J. 179, 193 (2021) State v. Stein, 225 N.J. 582, 594 (2016)); see also Pressler &Verniero, Current N.J. Court Rules, cmt. 3.1 on R. 3:13-3 (2023). The......
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