STATE OF NEW JERSEY v. CEDRIC PARRISH

NOT FOR PUBLICATION WITHOUT THE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.

CEDRIC PARRISH,

Defendant-Respondent.

________________________________________________________________

February 10, 2017

Submitted June 7, 2016 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 13-10-1372 and 13-10-1373.

Andrew C. Carey, Middlesex County Prosecutor, attorney for appellant (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

Respondent Cedric Parrish has not filed a brief.

The opinion of the court was delivered by

ESPINOSA, J.A.D.

The State appeals from an order that denied its application to admit evidence obtained from defendant's cell phones into evidence in its case in chief. We affirm.

In June 2013, police responded to information provided by an employee at a self-storage facility in Woodbridge regarding an odor of suspected marijuana coming from a storage unit. After a canine unit dog gave a positive indication for narcotics and defendant was identified as associated with the storage unit, the investigating detective requested that patrol officers look for defendant's vehicle and conduct a motor vehicle stop. Search warrants were also obtained for the storage unit and defendant's car. Two cell phones were seized from defendant during the course of the motor vehicle stop. Among the items recovered from the storage unit were approximately two hundred grams of marijuana and a loaded handgun.

Defendant was indicted on drug and weapons offenses, including a certain persons charge, N.J.S.A. 2C:39-7(b), in October 2013. Approximately two years later, on September 25, 2015, the State obtained cellular device search warrants for the two cell phones seized from defendant. On October 8, 2015, the assistant prosecutor received the forensic data obtained from the cell phones on a DVD, which consisted of 3,576 pages of information. On October 9, 2015, the State provided defense counsel with the search warrant materials and the forensic data it had received. At that time, the matter was scheduled for trial on December 8, 2015.

The prosecutor and defense counsel appeared in court on October 9, 2015, for the purpose of executing the trial memo. R. 3:13-3. At the beginning of their court appearance, defense counsel advised the court he had just been handed certain discovery materials, i.e., the return on the search warrant for defendant's cell phones. The transcript reflects that there were numerous delays during the pendency of the matter related to plea negotiations regarding a Graves Act waiver, N.J.S.A. 2C:43-6.2, changes in prosecutors assigned to the case and delays in conducting a suppression hearing and plea negotiations. During the course of plea negotiations, defendant had sought and obtained a Graves Act waiver and rejected a plea offer that would have subjected him to a five-year sentence with a one-year period of parole ineligibility. Defense counsel advised the court that the plea offer then available, ten years' imprisonment with a six-year period of parole ineligibility, was rejected by defendant with the understanding that he had received all relevant evidence against him.

At the time of the court appearance, neither the assistant prosecutor nor defense counsel had reviewed the forensic data obtained from the cell phones. The judge issued a preliminary ruling that the new evidence would not be admitted in the State's case in chief but permitted the State to pursue its application in writing.

At the next court appearance on October 14, 2015, the assistant prosecutor represented she had reviewed the information obtained from defendant's cell phones and found "quite a bit of text messages from both phones" and that "the one that [defendant] had in his hand at the time of arrest [had] text messages that demonstrate intent to distribute." Other than this conclusory description, the assistant prosecutor provided no details regarding the content of any text message to permit the trial court to weigh the probative value of the evidence the State sought to admit. Similarly, the letter brief submitted to the trial court failed to identify the contents of any inculpatory text message.

The assistant prosecutor noted that the trial memo had not yet been executed, that there were eight weeks before the scheduled trial date and that an appropriate remedy would be a new trial date. She further represented that plea negotiations were not cut off. Defense counsel stated that, based upon his limited review of the materials, it was his opinion that the records could only be admissible if permitted pursuant to N.J.R.E. 404(b), which would require additional briefing and delay. He asked the court to preclude the evidence and for the trial to proceed on December 8. The judge stated the only reason he was entertaining the argument was because defendant was not in custody but that he still found the State's delay in obtaining the information fundamentally unfair. He entered the order barring the State from using the evidence obtained from the cell phones that is the subject of this appeal and denied the State's request for a stay.

In this appeal, the State argues the trial court erred in "ruling the State committed a discovery violation" and abused its discretion in barring the introduction of defendant's cellphone texts. We disagree.

As the State concedes, we are required to accord "substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). Unless an abuse of discretion is demonstrated, the decision to admit or exclude will stand unless it was "'so wide of the mark that a manifest denial of justice resulted.'" State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), (quoting State v. Carter, 91 N.J. 86, 106 (1982), certif. denied, 205 N.J. 78 (2011)).

The exercise of discretion by the trial judge necessarily entails a weighing of the probative value of the evidence at issue against the prejudice resulting from its introduction. See Carter, supra, 91 N.J. at 106; N.J.R.E. 403. In its submission to the trial judge, the State offered only conclusory information regarding the probative value of unspecified text messages and argued defendant was not prejudiced by the delayed disclosure. The State failed to provide the trial judge with any meaningful opportunity to assess the probative value of evidence that had not been isolated from the over three thousand pages of materials that was produced approximately two years after defendant's indictment. In light of the State's failure to do so, we find no grounds to conclude that the trial judge abused his discretion in declining to permit the State to introduce evidence of the text messages in its case in chief.

Affirmed.