State v. Shahamet

• Decision Date: 26 October 1988
• Citation: 549 A.2d 884,228 N.J.Super. 340
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Abdel Akbar SHAHAMET, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 340

228 N.J.Super. 340

549 A.2d 884

STATE of New Jersey, Plaintiff-Respondent, v. Abdel Akbar SHAHAMET, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Oct. 5, 1988.

Decided Oct. 26, 1988.

Alfred A. Slocum, Public Defender, for defendant-appellant (Robert Seelenfreund, Asst. Deputy Public Defender, of counsel, and on the brief).

W. Cary Edwards, Atty. Gen., for plaintiff-respondent (Mildred Vallerini Spiller, Deputy Atty. Gen., of counsel, and on the brief).

Before Judges KING, ASHBEY and SKILLMAN.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

Defendant was convicted by a jury of possession of a controlled dangerous substance, cocaine, in violation of N.J.S.A. 24:21-20(a)(1), and sentenced to a four year term of imprisonment.

The State's evidence against defendant was obtained from a search of the apartment which defendant shared with his wife. The search revealed five vials in the drawer of a dresser located in the marital bedroom. One vial contained cocaine while the others showed traces of the drug.

The only witness for defendant was his wife. She testified that the cocaine belonged to her and that her husband was unaware of its presence in the apartment. According to defendant's wife, she consumed some cocaine with a girlfriend during the evening preceding the search and placed the remainder in the dresser drawer while her husband was out of the apartment. On cross-examination, defendant's wife was confronted with her prior statement, made after her own arrest, that she "does not use drugs." This statement was part of her response to questions on the "Uniform Defendant Intake Report" (U.D.I.R.) used to assist in processing persons charged with criminal offenses in Union County. ¹

After the jury verdict, the trial court raised a question on its own motion as to whether the guilty verdict should be set aside on the grounds that the use of the U.D.I.R. statement in cross-examining defendant's wife breached the confidentiality of such reports. In response, defendant submitted two affidavits by the Director of the Union County Central Intake Unit which stated that the U.D.I.R. is designed to aid the court in setting bail, to assist in determining the eligibility of an accused for representation by the Public Defender, and to serve "as a building block towards the eventual completion of any necessary presentence and/or P.T.I. report." Defendant also submitted an affidavit by the Criminal Case Manager for Union County, which stated that the U.D.I.R. is used by the Prosecutor and Public Defender in connection with the county's speedy trial program. The Case Manager further stated that there was an understanding that a U.D.I.R. "was never to be used against a defendant at any subsequent proceeding." Bradley Ferencz, a Public Defender in Middlesex County and a member of the Supreme Court Task Force Committee on Speedy Trials, submitted a certification in which he stated that the Committee had agreed that a U.D.I.R. was to remain confidential. In addition, defendant submitted an affidavit by the Presiding Judge of the Criminal Part which stated that at a meeting attended by representatives of the prosecutor's office, he had "assured the Public Defender's Office that information obtained from defendants for purposes of completion of the U.D.I.R. form would not be used against those defendants." However, the judge also stated that "[t]he situation in the case at bar, where the information contained in the U.D.I.R. was used to impeach a defendant who later became a defense witness, was never discussed because it was never contemplated at this or any other meeting." ²

In opposition to this motion, the Prosecutor submitted an affidavit by a probation department employee who interviews defendants for the purpose of completing U.D.I.R.s which stated:

At no time do I inform defendants that any portion of the Report will be kept confidential. At no time do I inform defendants that they must fill out the form. On occasions when defendants have resisted filling out the form in any manner, they are permitted to chose [sic ] not to do so.

In an oral opinion delivered on January 23, 1987, the trial court, declining to set aside the jury's verdict, stated:

The trial of a case is the seeking of the truth. Certainly, one doesn't seek the truth if there was a shield put up to permit such false swearing or apparent false swearing as there was in this case.... [T]his Court is convinced by reading the affidavits furnished to this Court by both sides that this particular situation was not contemplated by anyone nor discussed by anyone.

On appeal defendant argues that he is entitled to a new trial because the Prosecutor's use of his wife's U.D.I.R. statement in her cross-examination breached the understanding that such statements would remain confidential. In effect, defendant argues that the understanding reached among the participants in the criminal justice system in Union County regarding the confidentiality of U.D.I.R. statements makes such statements privileged. However, "[t]he policy of the law is to allow all competent, relevant evidence to be produced, subject only to a limited number of exceptions." Lazorick v. Brown, 195 N.J.Super. 444, 456, 480 A.2d 223 (App.Div.1984); see Evid.R. 7. And "since privileges conceal the truth rather than advancing its ascertainment, courts have traditionally tended to restrict rather than create or expand them." Dixon v. Rutgers, 110 N.J. 432, 446, 541 A.2d 1046 (1988). Privileges "are accepted only because in the particular area concerned, they are regarded as serving a more important public interest than the need for full disclosure." State v. Briley, 53 N.J. 498, 506, 251 A.2d 442 (1969). Consequently, "the adoption of a privilege restricting the flow of evidence is a substantial policy decision uniquely within the competence of the Supreme Court or the Legislature." In re Gail D., 217 N.J.Super. 226, 232, 525 A.2d 337 (App.Div.1987); see also Busik v. Levine, 63 N.J. 351, 367-368, 307 A.2d 571 (1973).

It is clear that neither the Supreme Court nor the Legislature has made a policy decision that statements made during the preparation of a U.D.I.R. should be privileged. Moreover, neither the Court nor the Legislature has delegated authority to the Public Defender's office, the Prosecutor or the Presiding Judge of the Criminal Part to establish such a privilege. Therefore, the use of an U.D.I.R. statement in a criminal trial cannot be barred on the basis of an agreement among these officials. See Evid.R....