STATE OF NEW JERSEY v. BABASOLA AROWOSAYE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

BABASOLA AROWOSAYE,

Defendant-Respondent.

_____________________________________

June 9, 2014

Submitted March 10, 2014 Decided

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2013-016.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Gaydos and Marinello, attorneys for respondent (Anthony J. Marinello, on the brief).

PER CURIAM

The State appeals from an order entered by the Law Division on August 14, 2013, affirming the dismissal by the municipal court of complaints filed against defendant. We reverse.

I.

This appeal arises from an incident that allegedly took place at 3:00 a.m. on March 25, 2012. According to the State, defendant was intoxicated and was involved in an altercation with two officers from the Belleville Police Department (BPD): Lieutenant James Guiliano, who was off duty, and Officer Anthony Petrazzuolo, a back-up officer who arrived to assist Guiliano with defendant's arrest.

The State claims that defendant yelled obscenities at the officers, "sucker-punched" Guiliano and kicked both officers during the incident. Defendant apparently suffered injuries to his face when he and the officers fell to the ground when the officers tried to arrest him.

Defendant was charged with third-degree aggravated assault upon the officers, contrary to N.J.S.A. 2C:12-1(b)(5)(a), and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a)(3)(a). The aggravated assault charges were later downgraded to simple assault charges, contrary to N.J.S.A. 2C:12-1(a)(1), which are disorderly persons offenses. The matters were remanded to the municipal court. By letter dated March 30, 2012, defendant's attorney made his first of several requests for discovery.

Dissatisfied with the State's response to its discovery requests, the defense filed a motion to compel discovery on August 15, 2012, seeking to compel the State to produce various items on a list appended to the motion, including any video tape made by equipment on the police cruiser responding to the scene and any audio recording of Guiliano's call to police headquarters, the investigative file of the Internal Affairs Department (IAD) in the Essex County Prosecutor's Office, and the BPD guidelines for off-duty police officers.

Assistant Prosecutor Adam Salzer responded to defendant's motion in a letter dated September 12, 2012. Among other things, the assistant prosecutor said that the State had provided the defense with all relevant information on the list. The assistant prosecutor noted, however, that the camera on the police cruiser was not working at the time of the incident and there was no video recording to turn over. He also said no recording of Guiliano's call existed.

The municipal court judge considered defendant's motion on October 22, 2012. At the hearing, Assistant Prosecutor Olajide Araromi agreed to provide defendant with repair bills and/or reports concerning the police cruiser video camera, if such documents existed. The assistant prosecutor noted that all relevant IAD statements had been provided to the defense but he would again inquire about them. In addition, the assistant prosecutor agreed to provide, as a courtesy, the BPD guidelines for off-duty officers, if they could be obtained. The assistant prosecutor asserted, however, that the State was not required to provide the BPD's guidelines.

The judge directed the State to provide the repair records and a copy of the BPD guidelines. The judge also directed the State to review the IAD file and turn over all relevant documents. All of the items were to be produced by November 15, 2012, or the State was to explain why the information could not be provided. At the judge's direction, defense counsel submitted a letter confirming the judge's rulings.

On November 20, 2012, the parties met with the judge concerning discovery. The judge directed the attorneys to endeavor to agree to a consent order resolving the dispute. On December 18, 2012, defense counsel provided the judge with a proposed consent order. The attorneys met with the judge the following day.

On that date, Assistant Prosecutor Joseph Giordano wrote to defense counsel and summarized the discussion. The assistant prosecutor indicated that he would obtain and provide a copy of the BPD guidelines for off-duty and/or out-of-uniform officers, if such guidelines existed. The State would also agree to the entry of an order providing for in camera review of the IAD file pertaining to this case.

However, Assistant Prosecutor Giordano would not agree to the entry of a consent order, nor would he provide a certification "as to the existence (or lack thereof) of any information in this case." The assistant prosecutor said it was the State's position that it had provided all the discovery it was required to provide.

On December 20, 2012, the State filed a motion seeking in camera review of the IAD file so that the judge could confirm that nothing material in the file had been intentionally withheld or otherwise not disclosed to defense counsel. Defendant's attorney wrote to the judge on January 4, 2013, indicating that the State's motion and proposed order did not address the BPD guidelines for off-duty officers or the repair records for the police cruiser involved in the incident.

The judge considered the motion on January 16, 2013. Defense counsel confirmed that the State had provided a copy of defendant's IAD interview, and that the assistant prosecutor had advised him that the IAD had not interviewed the police officers or other witnesses in this case. Defense counsel asked for permission to review the IAD file. In addition, defense counsel acknowledged that the State had provided him with a copy of certain BPD guidelines, but noted that they did not include the protocol for off-duty officers. Counsel said the State should provide a certification confirming that such a protocol did not exist.

Assistant Prosecutor Giordano told the judge that the IAD videotapes its interviews and there were no notes of defendant's interview. The assistant prosecutor also said that the IAD did not interview any of the officers involved in the incident. The assistant prosecutor stated, however, that he was willing to turn over the IAD file to the judge so that the judge could determine whether any additional items sought by the defense were in the file.

The assistant prosecutor also said that the camera on the police cruiser that responded to the incident had not been repaired. It had been replaced. The State provided the defense with a copy of a checklist of problems with patrol car dash cameras for the twelve days before the incident. The assistant prosecutor said no other documents along those lines existed.

The assistant prosecutor further explained that the State had turned over all of the BPD's guidelines and methods of operation. He said that if a specific protocol regarding off-duty officers was not contained in the information provided, such a protocol did not exist. The assistant prosecutor asserted that, because the State had provided the defense with all of the relevant material information, the State would not provide a written certification concerning other information that did not exist. He represented, as an officer of the court, that the additional information sought did not exist, based on what the BPD had told him. He said the State was ready to proceed to trial.

The judge stated the State should produce the notes of interviews with the officers conducted by the IAD or provide a certification that such notes did not exist. The judge said he was not inclined to undertake an in camera review of the IAD file, but he would do so if necessary.

The judge also directed the State to produce the repair records showing whether the camera on the police cruiser was operable at the time of the incident and that the camera had been replaced. The judge also directed the State to turn over the BPD guidelines for off-duty officers or provide a certification indicating that such guidelines did not exist.

The judge said the State must provide the aforementioned information to defense counsel within fourteen days. If the information was not provided in that time, the State's complaints would be dismissed.1 Defense counsel offered to draft an order memorializing the judge's rulings. The judge said he would consider any revisions the State proposed to the order.

In a letter dated January 28, 2013, Assistant Prosecutor Giordano advised the judge that the State would not provide certifications as to the non-existence of repair records for the camera on the police cruiser or the BPD guidelines for off-duty officers. The assistant prosecutor added that the State believed it had provided all of discovery it was required to provide and the State was prepared to proceed to trial. He said that at trial defense counsel could question any witness the State called to determine whether additional information existed.

By letter dated January 30, 2013, defendant's attorney advised the judge that the State had not complied with the judge's directives. He asked the judge to dismiss the State's complaint with prejudice for failure to provide discovery.

The judge considered the matter again on January 31, 2013. The assistant prosecutor again told the judge that the State would not provide a certification as to the non-existence of repair records or the lack of guidelines for the BPD's off-duty officers. He stated that defense counsel could address these issues in the questioning of the State's witnesses at trial. The assistant prosecutor also stated that the IAD would not turn over its file to the judge without an order. He objected to the dismissal of the complaint, reiterating that the State had provided the defense with all of the discovery it was required to provide.

The judge signed an order granting the State's motion for in camera review of the IAD file. The order also required the State to provide the repair or replacement records for the cruiser's camera and the BPD guidelines for off-duty officers, or certifications indicating that such records do not exist. However, after the assistant prosecutor said the State would not provide the certifications, the judge signed another order dismissing the complaints with prejudice.

The State appealed to the Law Division. The Law Division judge considered the matter on July 23, 2013. The judge ruled that the defense had sought discovery of relevant materials. The judge said the municipal court judge did not abuse his discretion by ordering the State to provide the repair or replacement records and the BPD guidelines for off-duty officers or certifications indicating that they did not exist.

The judge noted that the State could not produce documents that it did not possess. The judge ruled, however, that the municipal court did not act inappropriately by requiring the State to explain or certify that the documents were not available because it could be reasonably assumed that such documents existed.

The Law Division judge also determined that the municipal court judge did not mistakenly exercise his discretion by dismissing the State's complaints. The judge noted that there had been numerous court appearances to address the discovery issues. The judge said that after the municipal court's rulings during those appearances, the State's position did not represent a legitimate disagreement concerning discovery but rather blatant noncompliance with the court's orders. The judge found that, under the circumstances, dismissal of the charges was warranted.

The Law Division judge entered an order dated August 14, 2013, affirming the dismissal of the complaints. This appeal followed.

II.

The State argues that the municipal court and Law Division judges erred by dismissing the complaints with prejudice. We agree.

The decision to dismiss a criminal complaint rests in the sound discretion of the trial court. State v. Hogan, 144 N.J. 216, 229 (1996); State v. Salter, 425 N.J. Super. 504, 514 (App. Div. 2012). We will not reverse such a decision unless shown to be a clear abuse of discretion. Hogan, supra, 144 N.J. at 229; Salter, supra, 425 N.J. Super. at 514.

We note initially that the Law Division judge erroneously assumed that the municipal court judge had issued several orders for discovery prior to January 31, 2013. Here, the municipal court judge conducted several proceedings to address the discovery dispute and during those proceedings, the judge directed the State to provide certain information. The judge did not, however, issue any order memorializing his directives until January 31, 2013, when the judge signed an order which provided for in camera review of the IAD file and required the State to produce the camera repair records and the BPD guidelines for off-duty officers or certifications indicating that the records and guidelines did not exist.

Furthermore, the Law Division mistakenly faulted the State for failing to seek reconsideration or leave to appeal from the municipal court's orders. As we have explained, the only order compelling discovery was entered on January 31, 2013. Throughout the various proceedings, the State made clear that because it had provided all of the discovery in its possession, it should not be compelled to produce certifications attesting to the non-existence of certain records. Since the judge had emphatically rejected the State's position, a motion to seek reconsideration of the January 31, 2013 order would have been futile. Furthermore, a motion for leave to appeal from that order was not required because the judge dismissed the complaints on that same date.

Moreover, the Law Division erroneously took the State to task for failing to seek a protective order. Here, the State filed a motion which essentially sought relief from defendant's demand for the production of the IAD file. The State maintained that it had turned over all relevant information in that file, and sought in camera review of the IAD file by the court to confirm its representation. The State also clearly expressed its opposition to any order requiring that it produce certifications attesting to the non-existence of records. Thus, the State's opposition to defendant's discovery motion was essentially a request for a protective order.

In addition, the Law Division judge erred by faulting the State for changing its position regarding discovery of certain items. One of the assistant prosecutors who handled the matter indicated at one point that the State was willing to provide the BPD's repair or replacement records for the cruiser's video camera, or the BPD's guidelines for off-duty officers, if available. However, an assistant prosecutor later told the judge those documents did not exist. The State also consistently took the position it should not be compelled to produce certifications that these records did not exist.

Wholly aside from the court's errors in its findings regarding the municipal court proceedings, the Law Division erred by affirming the dismissal of the complaints. As we have explained, the State insisted that it had provided the defense with all of the discovery in its possession but a dispute remained concerning defendant's demand for discovery of three items: the IAD file, records pertaining to the repair or replacement of the video camera in the BPD's police cruiser, and the BPD's guidelines for off-duty officers.

The State maintained that it had provided all relevant information in the IAD file. The State filed a motion seeking in camera review of the IAD file to confirm that representation, and defendant consented to the application. The municipal court judge granted that motion. Nothing in the record indicates the State failed to meet its discovery obligations with regard to the information in the IAD file.

The municipal court judge also required the State to produce the repair or replacement records for the video camera in the police cruiser involved in the incident and the BPD's guidelines for off-duty officers, or provide a certification indicating that these records do not exist. The State maintains that the judge erred by refusing to accept its representation that those records and guidelines did not exist. We agree.

Rule 7:7-7 governs discovery in municipal court proceedings. A defendant in such a proceeding is entitled to "all relevant material." R.7:7-7(b). Among other things, a defendant is entitled to

books, originals or copies of papers and documents, or tangible objects, buildings or places that are within the possession, custody or control of the government, including, but not limited to, writings, drawings, graphs, charts, photographs, video and sound recordings, images, electronically stored information, and any other data or data compilations. . . .

[R.7:7-7(b)(6).]

The State contends that a municipal court judge may never require the production of a certification indicating that otherwise discoverable records do not exist. It may well be that a municipal court judge has the discretion to require the State to provide such a certification, depending upon the circumstances. However, in this matter, the municipal court mistakenly exercised such discretion by ordering the State to provide those certifications.

The assistant prosecutors who handled this matter repeatedly represented to the judge that the State had provided defense counsel with all relevant discovery materials. The judge erred by refusing to accept those representations. The State aptly notes that the assistant prosecutors are required by the Rules of Professional Conduct (RPC), specifically RPC3.4(d), "to make reasonably diligent efforts to comply" with an opposing party's "legally proper discovery requests."

Moreover, as attorneys, the assistant prosecutors may not knowingly make any false statement of material fact or law to the tribunal. RPC3.3(a). There is nothing in the record indicating that the assistant prosecutors had not made diligent efforts to meet defendant's discovery demands, or that the assistant prosecutors had not been candid with the court.

Further, at trial, defense counsel may question the State's witnesses or call officers from the BPD with personal knowledge of these matters and ask them about the existence of the aforementioned records. If the State's representations are shown to be erroneous, the trial judge may address any such failure to provide discovery. Rule7:7-7(j) states that

[i]f at any time during the course of the proceedings it is brought to the attention of court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order that party to provide the discovery of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed or enter such other order as it deems appropriate.

We therefore conclude that, under the circumstances, the municipal court judge erred by ordering the State to produce certifications attesting to the non-existence of the BPD's repair or replacement records and the BPD guidelines for off-duty officers. The judge mistakenly exercised its discretion by dismissing the complaints because the State refused to provide the certifications, and the Law Division erred by affirming the dismissal of the complaints.

Reversed and remanded to the municipal court for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1 We note that defendant never filed a formal motion to dismiss the complaints.