State v. Desir

• Decision Date: 08 October 2019
• Docket Number: DOCKET NO. A-2882-17T4
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Herby V. DESIR, a/k/a Johnathan Desir, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

461 N.J.Super. 185

219 A.3d 586

STATE of New Jersey, Plaintiff-Respondent,

v.Herby V. DESIR, a/k/a Johnathan Desir, Defendant-Appellant.

DOCKET NO. A-2882-17T4

Superior Court of New Jersey, Appellate Division.

Submitted September 25, 2019

Decided October 8, 2019

Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).

Before Judges Fuentes, Haas and Enright.

The opinion of the court was delivered by

HAAS, J.A.D.

After the trial judge denied his motion to compel the State to provide him with discovery, defendant Herby V. Desir pled guilty to second-degree possession of "Methylenedioxy-N-ethylcathinone (MDEC/Ethylone)," a Schedule I narcotic drug, with the intent to distribute it in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(4).¹ Defendant reserved the right to appeal from the denial of his motion to compel discovery and his motion to suppress evidence seized during the execution of the search warrant. In accordance with the negotiated plea, the judge sentenced defendant to seven years in prison with three-and-one-half years of parole ineligibility.

On appeal, defendant raises the following contentions:

POINT I

THE MOTION FOR DISCOVERY OF THE LAB REPORTS[,] TELEPHONE NUMBERS, AND RECORDATION OF THE CONVERSATIONS AND/OR TRANSACTIONS SHOULD HAVE BEEN GRANTED AND THE MOTION TO SUPPRESS REOPENED AS THE DISCLOSURE OF THE SOUGHT AFTER DISCOVERY (OR THE IN CAMERA REVIEW) WOULD NOT HAVE REVEALED ANY CONFIDENTIAL INFORMATION. MOREOVER, THE PRINCIPAL DECISION RELIED UPON BY THE JUDGE, STATE V. BROOM-SMITH, 406 N.J. SUPER. 228, 967 A.2d 359 (APP. DIV. 2009), [aff'd, 201 N.J. 229, 989 A.2d 840 (2010),] IS EASILY DISTINGUISHABLE FROM THE CASE AT HAND.

POINT II

THE COURT FAILED TO PROPERLY CONSIDER THE AGGRAVATING AND MITIGATING FACTORS AND IMPOSED AN[ ] EXCESSIVE SENTENCE AND PERIOD OF PAROLE INELIGIBILITY.

After reviewing the record in light of the contentions advanced on appeal and the applicable law, we reverse and remand for further proceedings.

To place the salient issues in the proper context, we begin by reviewing the unusual procedural history of this matter. During the week of April 27, 2015, a detective received information from a confidential informant, who had provided information leading to arrests in prior cases. According to the detective's affidavit in support of a search warrant application, the informant claimed that defendant was storing and selling large amounts of "Molly" in his home. The informant also alleged that defendant had at least two handguns and was offering to sell them.

The detective stated he met with the informant sometime during the next week to "conduct[ ] a consensually intercepted telephone communication" between the informant and Desir. The informant then had two telephone conversations with defendant in the detective's presence. During these calls, the informant and defendant discussed the availability of "Molly" and defendant told the informant to come to his residence. Defendant also stated that he had "firearms[ ] available to sell."

Before following the informant to defendant's home, the detective searched the informant and found that he was not carrying any drugs or money. The informant entered defendant's home and, after he left, the detective followed him to a pre-arranged meeting spot. Once there, the informant gave the detective an "item, suspected to be ‘Molly[.]’ " The detective searched the informant and found that the informant was not carrying any other drugs, and had no money in his possession. In his affidavit, the detective stated "[t]he suspected ‘Molly’ obtained from [defendant] was submitted to the Union County Prosecutor's Office Laboratory where it was analyzed and tested positive for Ethylone, a Schedule I controlled dangerous substance."

Based upon the detective's affidavit, a judge granted a no knock search warrant to the detective for defendant's home. During the search that followed, the police recovered 125 ounces of "Molly," a handgun, hollow point bullets, currency, and drug paraphernalia.

Thereafter, a Union County grand jury returned a six-count indictment charging defendant with third-degree possession of "Molly," N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of "Molly" with intent to distribute it, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(4) (count two); third-degree possession of "Molly" with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three); second-degree possession of "Molly" with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four); second-degree possession of a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1(a) (count five); and fourth-degree possession of hollow point bullets, N.J.S.A. 2C:39-3(f) (count six).

Once the indictment was filed on September 18, 2015, and in accordance with the "right to broad discovery" afforded defendants in criminal cases, State v. Hernandez, 225 N.J. 451, 461, 139 A.3d 46 (2016), the State was required to deliver its discovery to the criminal division manager's office, or make it available at the prosecutor's office. R. 3:13-3(b). The defendant's right to "broad discovery of the evidence the State has gathered in support of its charges" is "automatic[.]" State v. Scoles, 214 N.J. 236, 252, 69 A.3d 559 (2013) (citing R. 3:13-3). This " ‘open-file approach to pretrial discovery in criminal matters’ is intended ‘[t]o advance the goal of providing fair and just criminal trials.’ " Hernandez, 225 N.J. at 461-62, 139 A.3d 46 (alteration in original) (quoting Scoles, 214 N.J. at 252, 69 A.3d 559 ).

According to defense counsel, the State did not provide defendant with the laboratory report detailing the test results of the suspected "Molly" the informant gave the detective who prepared the search warrant application, or any "property and evidence sheets related to the submission of the substance for testing[.]" The State also did not give defendant any "recordings of the purported consensual intercepts" the detective listened to prior to seeking the warrant. Therefore, defense counsel made a written request for these items. In doing so, the attorney stated he understood these materials might need to be redacted if they would reveal the informant's identity, and he also proposed that the items could be submitted to the court for an in camera review. The State did not respond to this request.

On July 20, 2016, defendant filed a motion to suppress the contraband seized during the execution of the search warrant. Through counsel, defendant argued the State failed to establish probable cause to obtain the warrant, and argued that the detective's 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."

To establish this point, defendant sought a Franks ² hearing. In Franks, the United States Supreme Court held that

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

[ 438 U.S. at 155-56, 98 S.Ct. 2674.]

However, "[s]uch a hearing is required only if the defendant can make a substantial preliminary showing of perjury." State v. Howery, 80 N.J. 563, 583 n.4, 404 A.2d 632, (1979).

"The limitations imposed by Franks are not insignificant." Id. at 567, 404 A.2d 632. The burden placed on the defendant is onerous because "a Franks hearing is not directed at picking apart minor technical problems with a warrant application[,]" but rather, "it is aimed at warrants obtained through intentional wrongdoing by law enforcement agents[.]" State v. Broom-Smith, 406 N.J. Super. 228, 240, 967 A.2d 359 (App. Div. 2009), aff'd 201 N.J. 229, 989 A.2d 840 (2010). Thus, a defendant must identify "with specificity the portions of the warrant that are claimed to be untrue" and support the allegations with "an offer of proof including reliable statements by witnesses, [which] must be proved by a preponderance of the evidence." Howery, 80 N.J. at 567-68, 404 A.2d 632 (citation omitted).

In this case, defendant's task was made 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. In this regard, defendant alleged that he never sold "Molly" to anyone as alleged in the affidavit and he questioned whether a laboratory analysis was actually performed.

Defendant also suspected that contrary to what was stated in the affidavit, the detective must have given the informant money to obtain the "Molly" and that this information might be contained in any contemporaneous police reports prepared by the detective. Accordingly, defendant filed a motion on December 12, 2016 to compel the State to respond to his discovery request.

On the December 19, 2016 return date, the judge determined that she would proceed with defendant's motion to suppress and for a Franks hearing, rather than with his motion to compel discovery. At oral argument on the motion, defense counsel and the judge briefly discussed the scheduling issue:

[DEFENSE COUNSEL]: I had requested of the prosecutor's office a copy of this lab report, but, again, Judge, my requests have gone ignored. I never received anything in terms of a redacted lab report, but, Judge, I guess that's a motion for another day.

THE COURT: And another judge.

[DEFENSE COUNSEL]: And another judge.

Without the laboratory...