STATE OF NEW JERSEY v. NICOLE DUFAULT

Annotate this Case
NOT FOR PUBLICATION WITHOUT THE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
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1982-17T3

STATE OF NEW JERSEY,

        Plaintiff-Appellant/
        Cross-Respondent,

v.

NICOLE DUFAULT,

     Defendant-Respondent/
     Cross-Appellant.
_________________________________

              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-
              02-0319.

              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).

PER CURIAM
       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, 
N.J.S.A. 2C:14-

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



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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

Healthcare Servs., 
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

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permit the preparation of a defense."                      State v. Bellamy, 
329 N.J.

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

Rule 3:13-3(b)(1).

     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

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innocence."     Hernandez, 
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(f).

      
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

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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

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in [her] situation would have been unable to resist."            
N.J.S.A.

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

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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.




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