State v. Washington, DOCKET NO. A–1780–17T6, A–2051–17T6

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: LEONE, J.A.D.
• Citation: 453 N.J.Super. 164,180 A.3d 1143
• Decision Date: 16 February 2018
• Docket Number: DOCKET NO. A–1780–17T6, A–2051–17T6
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Brandon M. WASHINGTON, Defendant–Respondent. State of New Jersey, Plaintiff–Respondent, v. Brandon M. Washington, Defendant–Appellant.

453 N.J.Super. 164
180 A.3d 1143

STATE of New Jersey, Plaintiff–Appellant,
v.
Brandon M. WASHINGTON, Defendant–Respondent.

State of New Jersey, Plaintiff–Respondent,
v.
Brandon M. Washington, Defendant–Appellant.

DOCKET NO. A–1780–17T6, A–2051–17T6

Superior Court of New Jersey, Appellate Division.

Argued January 23, 2018
Decided February 16, 2018

Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for appellant in A–1780–17 and respondent in A–2051–17 (Scott A. Coffina, Burlington County Prosecutor, attorney; Jennifer B. Paszkiewicz, of counsel and on the brief; Nicole Handy, Assistant Prosecutor, of counsel and on the brief in A–2051–17).

Robin Kay Lord argued the cause for respondent in A–1780–17 and appellant in A–2051–17.

Before Judges Yannotti, Carroll, and Leone.

The opinion of the court was delivered by

LEONE, J.A.D.

453 N.J.Super. 174

The State has charged defendant Brandon M. Washington with two counts of attempted murder, and he is awaiting trial. In Docket No. A–1780–17, the State appeals the trial court's orders on November 28 and 29, 2017, and its denial of reconsideration on December 6, 2017. Those orders excluded the State's DNA evidence, denied its motion for a postponement of trial, and rejected its request for excludable time under N.J.S.A. 2A:162–22, the speedy trial statute in the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162–15 to -26. In Docket No. A–2051–17, defendant appeals the trial court's orders dated December 12 and 22, 2017, granting excludable time. We consolidate these back-to-back appeals for purposes of our opinion.

We hold the State Police Lab's draft DNA report was not "within the possession, custody or control of the prosecutor" until the lab sent it to the county prosecutor, and in any event was not

453 N.J.Super. 175

discoverable until the report was reviewed and approved by the lab. R. 3:13–3(b)(1)(C). Regardless of the speedy trial provisions, the trial court abused its discretion by excluding the DNA evidence rather than granting a continuance of trial under Rule 3:13–3(b)(1)(I) and -3(f), given the evidence's importance and the absence of surprise, prejudice, or a design to mislead.

We also hold that under the speedy trial rule and statute, a case may be "complex" if it has "complicated evidence," but time is excludable only if the complexity makes it unreasonable to expect adequate preparation for trial in the speedy trial period. R. 3:5–4(i)(7); see N.J.S.A. 2A:162–22(b)(1)(g). Moreover, the provision addressing failures to produce discovery is a limit on excludable time. N.J.S.A. 2A:162–22(b)(2). The court properly excluded time sua

180 A.3d 1150

sponte under N.J.S.A. 2A:162–22(b)(1)(c), and retained jurisdiction to do so after the State sought and obtained leave to appeal. That provision excludes the time while an emergent relief request, or interlocutory appeal, is pending in this court. Time while the trial is stayed is excludable under N.J.S.A. 2A:162–22(b)(1)(l).

As a result, we affirm in part, reverse in part, and vacate in part in A–1780–17. We affirm as modified in A–2051–17.

I.

The State alleges that, on February 16, 2017, defendant shot two men in the Veterans of Foreign Wars (VFW) Hall in Willingboro. The State asserts that after defendant fled, a pair of eyeglasses was found at the VFW Hall in the area where he struggled with one of the men. The State claims defendant was seen wearing similar eyeglasses both in a video taken minutes before the shooting, and in photographs on Facebook.

The Burlington County Prosecutor's Office (BCPO) obtained DNA swabs from defendant and the two victims. On March 2, the BCPO took the swabs and the eyeglasses to the Central Regional Laboratory (State Police Lab) of the New Jersey State Police (NJSP).

453 N.J.Super. 176

Meanwhile, the State arrested defendant and successfully moved for pretrial detention. On May 25, a grand jury indicted defendant with two counts of attempted murder in violation of N.J.S.A. 2C:5–1(a)(3) and N.J.S.A. 2C:11–3(a)(1). The court scheduled defendant's trial to begin November 28, and set defendant's release date as December 2.

On November 16, the BCPO received an email from the State Police Lab attaching the one-page DNA lab report signed by "Christine Bless, Forensic Scientist I." The lab report stated that "[a] mixture of DNA profiles consistent with at least two contributors was identified" on the eyeglasses, and that defendant was "the source of the major DNA profile obtained." The BCPO emailed the lab report to defendant's counsel that same day.

On November 17, the State filed a motion to declare that this was a complex case and that the sixty days from November 17, 2017 to January 17, 2018, were excludable time under N.J.S.A. 2A:162–22(b)(1)(g). The State also asked for a sixty-day adjournment of trial. Defendant orally moved to exclude the DNA results.

At the November 28 hearing on the motions, the trial court found this was not a complex case, and denied the State's request for sixty days of excludable time. The court granted excludable time from the November 17 filing of the State's motion to its disposition on November 28, extending defendant's release date to December 13.

In a November 29 letter-opinion, the trial court granted defendant's motion to prohibit the State from introducing the DNA evidence and denied the State's motion for an adjournment of trial. The court later issued corresponding orders.

On November 30, the State filed a motion for reconsideration. It attached a certification from the prosecutor stating what he had learned concerning the timing in the State Police Lab. Defense counsel argued the prosecutor's certification was not based on personal knowledge as required under Rule 1:6–6. The court gave

453 N.J.Super. 177

the State until December 5 to provide a certification from someone at the State Police Lab.

On December 1, the State provided a certification based on personal knowledge from Bless of the State Police Lab. Her certification stated as follows. The eyeglasses and swabs were submitted by the BCPO to the State Police Lab on March 2.

180 A.3d 1151

The eyeglasses were processed on March 3, and a swab from the eyeglasses was submitted for analysis on March 10. On July 20, Bless was assigned to analyze this evidence for DNA as a Forensic Scientist I. On July 25, Bless generated a lab report containing the result of her analysis, namely that there was a mixture of DNA profiles in which defendant was the major contributor.

Bless's certification then described the review process:

6. On or about August 8, 2017 the required technical (peer) review of this case file was initiated. Shortly thereafter, the case file was forwarded to the NJSP DNA Technical Leader for approval of the DNA profile interpretation of [the swab from the eyeglasses]. This approval was required due to recent changes to the interpretation guidelines in the NJSP DNA Laboratory.

7. Due to a number of factors including, but not limited to, the current work load of the NJSP DNA Technical Leader, her supervisory responsibilities, NJSP DNA Laboratory management requirements including Bail Reform and expedited cases which affect the prioritization of case file review, the approval of the DNA profile interpretation of [the swab from the eyeglasses] was completed on November 3, 2017.

8. On November 3, 2017, the case file was returned to the technical (peer) reviewer in order to complete this review. The technical (peer) review was completed November 3, 2017.

9. Shortly thereafter, the DNA case file was submitted to a Forensic Scientist 3 to conduct the required administrative review. This administrative review was completed on November 8, 2017.

10. Due to clerical staff shortages, the finalized and approved DNA report was digitized and emailed from the NJSP DNA Laboratory to the Burlington County Prosecutor's Office on or about November 16, 2017.

The prosecutor gave further explanation in his own certification and oral argument. He argued that during this period the State Police Lab "went from analyzing 15 allele sites to 26 allele sites which results in more accurate testing."¹ He certified this "recent

453 N.J.Super. 178

change in the science and method by which interpretation of mixtures of DNA are conducted made the NJSP Lab Technical Leader the only employee qualified to interpret DNA mixtures in the absence of approved scientific procedures for this manner of analysis," resulting in a "large number of cases which had to be analyzed by the NJSP DNA Lab Technical Leader." The prosecutor argued this temporary problem was subsequently resolved because protocols for such analysis were approved.

At the December 6 hearing, defense counsel objected to the form of the certifications,² and to the failure to produce the

180 A.3d 1152

full DNA packet.³ The court...