NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1982-17T3
STATE OF NEW JERSEY,
Argued February 27, 2018 – Decided March 15, 2018
Before Judges Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 15-
Kayla Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant/cross-respondent
(Robert D. Laurino, Acting Essex County
Prosecutor, attorney; Kayla Elizabeth Rowe, of
counsel and on the briefs).
Paul W. Tyshchenko argued the cause for
respondent/cross-appellant (Caruso Smith
Picini, P.C., attorneys; Timothy R. Smith, of
counsel; Steven J. Kaflowitz, on the briefs).
The State appeals a November 13, 2017 order partly granting
defendant's motion for disclosure of juvenile records, subject to
a proposed protective order. Defendant cross-appeals seeking
dismissal of the State's appeal. We remand the matter to the
trial court for further review.
A grand jury indicted defendant on twenty-three counts of
first-degree aggravated sexual assault of a person at least
thirteen years old but less than sixteen years old,
2(a)(2)(b); and seventeen counts of second-degree endangering the
welfare of a child,
N.J.S.A. 2C:24-4(a). The State alleges
defendant engaged in oral and vaginal sex with six male students
from summer 2013 to summer 2014. Defendant asserts several
affirmative defenses, including duress.
The State provided defendant with all adjudications against
the alleged juvenile victims, including their charges and
probation statuses. Defendant filed a motion seeking disclosure
of the alleged victims' full juvenile records and criminal case
history, which was beyond what the State previously provided.
The judge denied defendant's motion pending an in camera
review of the juvenile records. The State provided the records to
the judge and moved for a protective order staying the disclosure
of the juvenile records pending the State's appeal of that
disclosure, should the judge decide to disclose any records after
the in camera review.
On November 13, 2017, the judge completed the in camera review
and issued a list of records to be disclosed. The judge ordered
disclosure, subject to a proposed protective order, with
limitations as to who may have access to the records and use the
information. The judge further ordered that if the parties appeal
the proposed protective order, the disclosure of the juvenile
records would be stayed.
We "defer to a trial judge's discovery rulings absent an
abuse of discretion or a judge's misunderstanding or
misapplication of the law." Capital Health Sys. v. Horizon
230 N.J. 73, 79-80 (2017).
The State contends that the judge erred in ordering disclosure
of the alleged victims' juvenile records in anticipation of
defendant's duress defense. Specifically, the State submits that
the disclosure of such records violates
N.J.S.A. 2A:4A-60 and the
alleged victims' right to confidentiality. Defendant argues that
failing to disclose the information violates her right under the
Sixth Amendment of the United States Constitution.
The State is required to provide discovery, post-indictment,
to a defendant. R. 3:13-3(b)(1). "A defendant is entitled to
know the State's case against [her] within reasonable time to
permit the preparation of a defense." State v. Bellamy,
Super. 371, 376 (App. Div. 2000). However, a defendant's right
to discovery is not without limits and may be curtailed.
Our Supreme Court has recognized the importance of a
defendant's right to discovery that may not ultimately be deemed
admissible at trial. State v. Hernandez,
225 N.J. 451, 461-63
(2016). "[D]iscovery in a criminal case 'is appropriate if it
will lead to relevant' information." Id. at 462 (emphasis omitted)
(quoting State v. Ballard,
331 N.J. Super. 529, 538 (App. Div.
2000)). Thus, discovery requested by a defendant need not be
admissible for it to be recognized as discoverable pursuant to
Defendant asserts that disclosure of the alleged victims'
juvenile records is vital to her constitutional right of
confrontation. The federal and State constitutions afford the
accused the right "to be confronted with the witnesses against
[her]." U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. "This
right, however, is not absolute, and may, in appropriate
circumstances, bow to competing interests." State v. Budis,
125 N.J. 519, 531 (1991).
"The State's discovery obligation also extends to providing
'material evidence affecting [the] credibility' of a State's
witness whose testimony may be determinative of guilt or
225 N.J. at 462 (alteration in original)
(quoting State v. Carter,
69 N.J. 420, 433 (1976)). This includes
"any promise of favorable treatment or leniency offered to a
witness, including any plea or cooperation agreement setting forth
the benefits to the witness." Id. at 463.
The United States Supreme Court has considered the delicate
balance of a defendant's right to confrontation with a state's
interest in preserving the confidentiality of juvenile records.
Davis v. Alaska,
415 U.S. 308, 319-20 (1974). The Supreme Court
held that the right to confrontation cannot yield to a state's
interest in protecting all juvenile records. Id. at 320. This
court interpreted the holding in Davis and explained that use of
disclosed juvenile records can only be used to evidence a
juvenile's potential bias or prejudice, rather than a general
attack on credibility. State v. Brown,
132 N.J. Super. 584, 586-
87 (1975). Information indicating a juvenile's probation status
or whether any complaints are currently pending are to be
disclosed. Id. at 588. Here, the State previously provided such
information to defendant, as is also permitted under
N.J.S.A. 2A:4A-60 provides the framework for when juvenile
records may be disclosed, and permits the release of records in
limited circumstances. For matters that do not meet the
requirements of the statute, juvenile records "shall be strictly
safeguarded from public inspection."
N.J.S.A. 2A:4A-60(a). Those
seeking disclosure of juvenile records must fall within one of the
thirteen statutory categories. Ibid. "However, a juvenile's
records should be available to third persons with a sufficient
legitimate interest or when the interests of justice require."
State v. Van Dyke,
361 N.J. Super. 403, 412 (App. Div. 2003). A
defendant must evidence a "particularized need" for the disclosure
rather than some general request. Ibid. That includes "some
factual predicate which would make it reasonably likely that the
file will bear such fruit and that the quest for its contents is
not merely a desperate grasping at a straw." Ibid. (quoting
State v. Harris,
316 N.J. Super. 384, 398 (App. Div. 1998)).
Defendant sought, and the judge, in his November 13, 2017
order, granted limited disclosure of the alleged victims' juvenile
records, subject to a protective order. Defendant requested the
juvenile records to assist in her duress defense. Specifically,
defendant requested the incident reports and all other documents
for each alleged victim.
Duress is "an affirmative defense that the actor engaged in
the conduct charged to constitute an offense because [she] was
coerced to do so by the use of, or a threat to use, unlawful force
against [her] person . . . , which a person of reasonable firmness
in [her] situation would have been unable to resist."
2C:2-9(a). To succeed in asserting a duress defense, a defendant
must demonstrate the sincerity of his or her alleged belief of
imminent harm. State v. B.H.,
183 N.J. 171, 192 (2005).
In his December 8, 2017 amplification, the judge explained
that defendant had not put forth an adequate factual predicate
that the records sought were relevant to her state of mind at the
time of the alleged offenses. However, the judge stated defendant
"advanced some factual predicate that the records are reasonably
likely to be relevant to her duress defense." The judge failed
to elaborate or further explain what facts defendant pled to
advance how the disclosure of the juvenile records would assist
in her duress defense.
Notably, defendant only provided notice of her duress
defense. Both the judge's November 13, 2017 opinion and December
8, 2017 amplification failed to specify any particularized facts
relating to the defense. Without such facts, defendant's request
is a general one for disclosure, which is not permitted.
To balance the interests of providing discovery to defendant
and the State's interests in protecting the confidentiality of the
alleged victims' juvenile records, further review is required.
The record lacks sufficient evidence for a determination as to
whether defendant's requests are discoverable. Defendant failed
to support her request for the additional juvenile information
relating to her duress defense.
The judge's November 13, 2017 order disclosing the alleged
victims' juvenile records with the incident reports and supporting
documents was an abuse of discretion absent specific and
particularized facts relating to a defense. On remand, defendant
shall provide specific facts as to her duress defense, including
whether she had any previous knowledge of the alleged victims'
juvenile history that would evidence a belief of imminent harm and
the time frame in which she discovered that information.
In her cross-appeal, defendant asserts that the State's
appeal should be dismissed because the order on appeal is not
final or interlocutory. We conclude that defendant's arguments
are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Remanded for further review consistent with this opinion. We
do not retain jurisdiction.