State of New Jersey v. Ebonee R. Williams

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0591-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. April 6, 2016

APPELLATE DIVISION
EBONEE R. WILLIAMS,
a/k/a EBONY WILLIAMS,
a/k/a FELTON N. WILLIAMS,
a/k/a ABONEE WILLIAMS,
a/k/a EBONEE ROSE WILLIAMS,
a/k/a EEBONY WILLIAMS,

Defendant-Appellant.

____________________________________

Submitted October 20, 2015 – Decided April 6, 2016

Before Judges Reisner, Leone and Whipple.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 11-08-1194.

Joseph E. Krakora, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, on the brief).

Andrew C. Carey, Middlesex County
Prosecutor, attorney for respondent (Miriam
Acevedo, Assistant Prosecutor, of counsel
and on the brief).

The opinion of the court was delivered by

LEONE, J.A.D.
 Defendant Ebonee R. Williams appeals from her conviction

for drug offenses. Her principal challenge is to the ruling

that her formal statement during plea negotiations could be used

to impeach her if she testified. We hold that N.J.R.E. 410

generally prohibits the use of any statement made during plea

negotiations to impeach the person making the statement, but

that a defendant can waive that protection under appropriate

circumstances. We affirm, subject to a remand for a hearing to

determine if defendant waived that protection by agreeing her

statement could be used against her at trial. We reject her

other claims.

I.

On May 13, 2011, New Brunswick Police Department officers

executed a search warrant at an apartment on Livingston Avenue.

In the apartment, the officers found defendant. They located

mail addressed to both defendant and co-defendant Raymond Davila

bearing the apartment's address. In the kitchen stove, the

officers found three "bricks" of heroin, each containing 150

bags. In a bedroom containing women's clothing and shoes, the

officers found: seven "decks" of heroin on a television stand;

two "bundles" containing twenty bags of heroin on top of the

dresser; and one clear bag of about twelve grams of cocaine in a

dresser drawer. Also in the bedroom, the officers found

2 A-0591-13T2
defendant's purse, which contained her identification, empty

packets of heroin, and other drug paraphernalia. The officers

also discovered a loaded shotgun under a mattress and a loaded

handgun in the bedroom.

Defendant and Davila were charged with possession of the

items found in the Livingston apartment. After a six-day trial,

defendant and Davila were both convicted of conspiracy under

N.J.S.A. 2C:5-2 to possess a controlled dangerous substance

(CDS) with intent to distribute in violation of N.J.S.A. 2C:35-

5(a)(1), (b)(3); possession of heroin, N.J.S.A. 2C:35-10(a)(1);

and possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Defendant

was also convicted of possession of heroin with intent to

distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3); and possession of

heroin with intent to distribute within 1000 feet of a school,

N.J.S.A. 2C:35-7.1 For these third-degree offenses, the trial

court sentenced defendant to a total of three years in prison

with one-and-one-half years of parole ineligibility.

Defendant appeals from her judgment of conviction dated

June 11, 2013, raising the following arguments:

1
Davila was acquitted of those crimes. Both defendant and
Davila were acquitted of possession of cocaine with intent to
distribute; possession of cocaine with intent to distribute
within 1000 feet of a school; possession of firearms while in
the course of committing a drug distribution offense; unlawful
possession of a handgun; and possession of a sawed-off shotgun.

3 A-0591-13T2
 POINT I - THE TRIAL COURT ERRONEOUSLY RULED
THAT THE DEFENDANT'S STATEMENT – MADE AS
PART OF A PLEA AGREEMENT THAT WAS WITHDRAWN
BY THE STATE – WAS ADMISSIBLE TO IMPEACH HER
CREDIBILITY.

POINT II - THE DEFENDANT'S MOTION TO DISMISS
THE INDICTMENT SHOULD HAVE BEEN GRANTED.

A. THE DEFENDANT'S PRETRIAL MOTION TO
DISMISS THE INDICTMENT SHOULD HAVE BEEN
GRANTED.

B. THE MOTION FOR A JUDGMENT OF
ACQUITTAL SHOULD HAVE BEEN GRANTED.

POINT III - THE TRIAL COURT FAILED TO
INSTRUCT THE JURORS ON ALL THE ESSENTIAL
ELEMENTS OF THE OFFENSE OF POSSESSION OF CDS
WITH THE INTENT TO DISTRIBUTE.

POINT IV - THE DISCLOSURE OF THE IDENTITY OF
THE CONFIDENTIAL INFORMANT WAS ESSENTIAL FOR
A FAIR DETERMINATION OF THE ISSUES.

POINT V - THE STATE FAILED TO ESTABLISH THE
CHAIN OF CUSTODY OF THE EVIDENCE.

POINT VI - THE DEFENDANT'S RIGHT TO BE FREE
FROM UNREASONABLE SEARCHES AND SEIZURES AS
GUARANTEED BY THE ART. I, PAR. 7 OF THE NEW
JERSEY CONSTITUTION WAS VIOLATED BY THE
ISSUANCE OF A SEARCH WARRANT WITHOUT
PROBABLE CAUSE.

II.

The first issue concerns whether defendant's formal

statement to the Middlesex County Prosecutor's Office (MCPO)

could be used to impeach her if she took the stand at trial. We

must hew to our standard of review. "'[C]onsiderable latitude

is afforded a trial court in determining whether to admit

4 A-0591-13T2
evidence, and that determination will be reversed only if it

constitutes an abuse of discretion.'" State v. Kuropchak, 221

N.J. 368, 385 (2015) (citation omitted). "But evidentiary

rulings that undermine confidence in the validity of the

conviction or misapply the law are subject to reversal." State

v. Weaver, 219 N.J. 131, 149 (2014).

Defendant applied pre-indictment for admission to Drug

Court. She was tentatively accepted on the condition that she

give a truthful, formal statement about the involvement of her

co-defendants Davila, Justin Jenkins, and Llamar Jenkins.2

Defendant voluntarily appeared with her attorney for a

videotaped interview. Defendant signed a form advising her of

her Miranda rights.3 The MCPO investigator also advised

defendant orally of her Miranda rights, which defendant said she

understood. In particular, defendant said she understood that

"if you decide to make any statement, you must understand that

it may later be used against you in the event of a trial."

2
Because they share a last name, we will refer to Justin and
Llamar by their first names. The indictment charged Justin and
Llamar with the same crimes as defendant and Davila. Llamar was
also charged with resisting arrest and obstructing justice
during the search. They separately pled guilty to conspiracy to
distribute CDS.
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

5 A-0591-13T2
 During the interview, the investigator and defendant's

counsel both questioned defendant. Defendant stated as follows.

She resided in the Livingston Avenue apartment with Davila, the

father of her son. Her nephew Llamar visited the apartment, and

her nephew Justin stayed in the apartment most of the time. She

and Davila were staying in the living room, and Justin was the

only person living in the bedroom prior to the search. It was

Justin who had access to the bedroom, kept his possessions in

the bedroom, and used the dresser. The guns belonged to Justin,

and the drugs belonged to Justin, Llamar, or Davila, all of whom

were selling drugs.

In the interview, defendant initially said she was unaware

of any drugs in the apartment or drug sales from the apartment.

Later in the interview, she stated that, as a heroin addict, she

knew there was heroin in the apartment for her use, which she

got from Davila. She also said that Justin and Llamar were

involved in the distribution of drugs from the apartment, and

that she knew Justin had drugs in the apartment, but that she

was just a "user" and had no involvement in the drug

distribution.

The trial prosecutor determined that defendant's formal

statement did not sufficiently implicate her co-defendants, so

the State's "drug court plea offer was withdrawn." Later, the

6 A-0591-13T2
prosecutor gave notice that if defendant took the witness stand,

he would move to use "her attempted guilty plea against her for

impeachment purposes." The trial court ruled the State could

not use the formal statement affirmatively in its case-in-chief,

but could use it for impeachment if defendant took the stand and

testified contrary to her formal statement.

Defendant argues this ruling conflicted with N.J.R.E. 410.

N.J.R.E. 410 provides:

Except as otherwise provided in this rule,
evidence of a plea of guilty which was later
withdrawn, of any statement made in the
course of that plea proceeding, and of any
statement made during plea negotiations when
either no guilty plea resulted or a guilty
plea was later withdrawn, is not admissible
in any civil or criminal proceeding against
the person who made the plea or statement or
who was the subject of the plea
negotiations. However, such a statement is
admissible (1) in any proceeding in which
another statement made in the course of the
same plea or plea discussions has been
introduced and the statement should in
fairness be considered contemporaneously
with it, or (2) in a criminal proceeding for
perjury, false statement, or other similar
offense, if the statement was made by the
defendant under oath, on the record, and in
the presence of counsel.

[N.J.R.E. 410 (emphasis added).]

On its face, N.J.R.E. 410 precludes the admission of

evidence of a statement made during plea negotiations, absent

exceptions not applicable here. See State v. Williams, 184 N.J.

7 A-0591-13T2
432, 449 (2005) (noting that "most statements made during

criminal plea negotiations" under N.J.R.E. 410 "are generally

inadmissible in subsequent proceedings").

The drafters of N.J.R.E. 410 stated that it "generally

follows Fed. R. Evid. 410" (eff. 1980) [hereinafter the Federal

Rule]. Biunno, Weissbard & Zegas, Current N.J. Rules of

Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 410

(2015) [hereinafter Committee Comment]. The pertinent language

in N.J.R.E. 410 is essentially the same as in the Federal Rule.4

By following the Federal Rule, the drafters "expand[ed] the

exclusion to include not only an accused's offer to plead guilty

but also any statements made during plea negotiations," and

"effectively supersede[d]" our holding in State v. Boyle, 198

4
In 1991, the Federal Rule provided, in pertinent part:

Except as otherwise provided in this rule,
evidence of the following is not, in any
civil or criminal proceeding, admissible
against the defendant who made the plea or
was a participant in the plea discussions:
. . . (4) any statement made in the course
of plea discussions with an attorney for the
prosecuting authority which do not result in
a plea of guilty or which result in a plea
of guilty later withdrawn.

[Fed. R. Evid. 410 (eff. 1980) (emphasis
added).]

The Federal Rule still provides that "evidence of the following
is not admissible[:] . . . (4) a statement made during plea
discussions[.]" Fed. R. Evid. 410 (eff. 2011).

8 A-0591-13T2
N.J. Super. 64 (App. Div. 1984). Committee Comment, supra;

accord State v. Brabham, 413 N.J. Super. 196, 207-08 (App.

Div.), certif. denied, 203 N.J. 440 (2010); State v. Malik-

Ismail, 292 N.J. Super. 590, 595 (App. Div. 1996). In Boyle, we

refused to follow the Federal Rule and instead held that the

former New Jersey rule did "not prohibit introduction of the

accused's voluntary statements made during the plea negotiation

process." Boyle, supra, 198 N.J. Super. at 68-73 (interpreting

Evid. R. 52(2)).

N.J.R.E. 410 adopted the Federal Rule's rationale that "for

'plea bargaining to work effectively and fairly, a defendant

must be free to negotiate without fear that his statements will

later be used against him.'" Brabham, supra, 413 N.J. Super. at

208 (quoting Boyle, supra, 198 N.J. Super. at 69 (quoting United

States v. Herman, 544 F.2d 791, 796 (5th Cir. 1977))). We have

applied N.J.R.E. 410 to bar admission "in the State's main case"

of statements made by defendants during plea negotiations.

Malik-Ismail, supra, 292 N.J. Super. at 595; accord Brabham,

supra, 413 N.J. Super. at 200, 209-10. No New Jersey case has

resolved whether such statements can be used to impeach a

defendant's trial testimony. Cf. State v. Mustaro, 411 N.J.

Super. 91, 98 n.3 (App. Div. 2009).

9 A-0591-13T2
 In deciding that issue, we consider case law under "the

source rule of N.J.R.E. 410," namely the Federal Rule. Malik-

Ismail, supra, 292 N.J. Super. at 597. The Courts of Appeals

had long ruled that "[t]he legislative history of these Rules is

quite clear that plea negotiation statements are not admissible

to impeach a defendant." United States v. Mezzanatto, 998 F.2d

1452, 1454 (9th Cir. 1993), rev'd on other grounds, 513 U.S.

196, 115 S. Ct. 797, 130 L. Ed. 2d 697 (1995); accord, e.g.,

United States v. Acosta-Ballardo, 8 F.3d 1532, 1535 (10th Cir.

1993); United States v. Lawson, 683 F.2d 688, 692 (2d Cir.

1982). The United States Supreme Court, addressing both the

Federal Rule and Fed. R. Crim. P. 11(e)(6) in Mezzanatto,

"certainly agree[d] that the Rules give a defendant the right

not to be impeached by statements made during plea discussions."

United States v. Mezzanatto, 513 U.S. 196, 200 n.2, 115 S. Ct.

797, 801 n.2, 130 L. Ed. 2d 697, 703 n.2 (1995).

Other States have followed the federal courts and "have

declined to fashion a general impeachment exception" to their

versions of the Federal Rule. See State v. Amidon, 967 A.2d

1126, 1134-35 (Vt. 2008) (listing cases). Given that N.J.R.E.

410 "was patterned after Fed. R. Evid. 410," we are similarly

persuaded by the "history of the federal rule." State v.

Rodriguez, 280 N.J. Super. 590, 597 (App. Div. 1995). Such a

10 A-0591-13T2
reading accords with the above-stated rationale of both N.J.R.E.

410 and the Federal Rule, and "return[s] the parties to the

position they were in at the beginning of the" plea

negotiations. State v. Pennington, 154 N.J. 344, 362 (1998)

(quoting State v. Barboza, 115 N.J. 415, 427 (1989)). Thus, we

hold that N.J.R.E. 410 generally prohibits the use of any

statement made during plea negotiations to impeach the person

making the statement.

However, the United States Supreme Court in Mezzanatto went

on to consider whether a defendant could waive the protections

of the Federal Rule. We were careful in Brabham, supra, to note

that "[n]either officer testified that defendant was told that

what he said would be used against him." 413 N.J. Super. at

204. "Without any evidence that defendant was informed that the

officers and the assistant prosecutor attended the meeting to

collect incriminating statements to be used against defendant at

trial, the facts . . . required exclusion of the statements

pursuant to N.J.R.E. 410." Id. at 208. We thus consider the

resolution of that issue under the Federal Rule.

The United States Supreme Court in Mezzanatto, supra, ruled

that the protections of the Federal Rule may be waived by a

defendant. 513 U.S. at 197, 115 S. Ct. at 800, 130 L. Ed. 2d at

702. The Court stressed that "[a] criminal defendant may

11 A-0591-13T2
knowingly and voluntarily waive many of the most fundamental

protections afforded by the Constitution," as well as the

protection of statutes and procedural rules. Id. at 201-02, 115

S. Ct. at 801-02, 130 L. Ed. 2d at 704. This "presumption of

waivability" also applies to evidentiary rules, and the parties'

"agreements to waive evidentiary rules are generally enforceable

even over a party's subsequent objections." Id. at 202, 115 S.

Ct. at 802, 130 L. Ed. 2d at 704-05. The Court concluded that,

"like other evidentiary privileges, [the Federal Rule] may be

waived or varied at the defendant's request." Id. at 205, 115

S. Ct. at 803-04, 130 L. Ed. 2d at 707.

The Court in Mezzanatto found that waiving the Federal

Rule's protections did not impair the reliability of the fact-

finding process. Indeed, "[t]he admission of plea statements

for impeachment purposes enhances the truth-seeking function of

trials and will result in more accurate verdicts." Id. at 204,

115 S. Ct. at 803, 130 L. Ed. 2d at 706.

The Court also found "no basis for concluding that waiver

will interfere with the Rules' goal of encouraging plea

bargaining." Id. at 207, 115 S. Ct. at 804, 130 L. Ed. 2d at

707. "[I]f the prosecutor is interested in 'buying' the

reliability assurance that accompanies a waiver agreement, then

precluding waiver can only stifle the market for plea bargains."

12 A-0591-13T2
Id. at 208, 115 S. Ct. at 805, 130 L. Ed. 2d at 708. "A sounder

way to encourage settlement is to permit the interested parties

to enter into knowing and voluntary negotiations without any

arbitrary limits on their bargaining chips." Ibid.

Accordingly, the United States Supreme Court in Mezzanatto

held that, "absent some affirmative indication that the

agreement was entered into unknowingly or involuntarily, an

agreement to waive the exclusionary provisions of the plea-

statement Rules is valid and enforceable." Id. at 210, 115 S.

Ct. at 806, 130 L. Ed. 2d at 710.

Most State courts which have addressed the issue have found

the reasoning of Mezzanatto persuasive in interpreting their own

versions of the Federal Rule, and have ruled that defendants can

waive their rules' protections. See, e.g., State v. Campoy, 207

P.3d 792, 803 (Ariz. Ct. App. 2009); People v. Stevens, 610

N.W.2d 881, 885-88 (Mich.), cert. denied, 531 U.S. 902, 121 S.

Ct. 240, 148 L. Ed. 2d 172 (2000); State v. Blom, 682 N.W.2d

578, 617 (Minn. 2004); Commonwealth v. Widmer, 120 A.3d 1023,

1027-28 (Pa. Super. Ct. 2015); State v. Wills, 700 S.E.2d 266,

268-69 (S.C. Ct. App. 2010), aff'd, 762 S.E.2d 3, 4 (S.C. 2014).5

5
Cf. State v. Pitt, 891 A.2d 312, 326 (Md. 2006) (distinguishing
Mezzanatto because in Pitt the defendant's statements were used
in the prosecution's case-in-chief, and noting that applying
Mezzanatto "would undermine" prior Maryland case law holding
(continued)

13 A-0591-13T2
 We believe Mezzanatto's persuasive reasoning is equally

applicable to N.J.R.E. 410. Accordingly, we hold that a

defendant can waive N.J.R.E. 410's protection against the use of

any statement made during plea negotiations to impeach the

person making the statement, and that such a waiver is valid and

enforceable absent an affirmative indication that the waiver was

entered into unknowingly or involuntarily.6

The Court in Mezzanatto, supra, found waiver where the

prosecutor informed the defendant "that any statements he made

during the meeting could be used to impeach any contradictory

testimony he might give at trial if the case proceeded that

far," and the defendant after conferring with counsel "agreed to

proceed under the prosecutor's terms." 513 U.S. at 198, 115 S.

Ct. at 800, 130 L. Ed. 2d at 702. Other courts have held that

(continued)
that admissibility turns on whether it was the defendant or the
State that "rescinded or breached the plea agreement").
6
Defendant also cites Rule 3:9-2, which provides: "If a plea of
guilty is refused, no admission made by the defendant shall be
admissible in evidence against the defendant at trial."
However, Rule 3:9-2 protects "admissions made in a prior plea
proceeding." Barboza, supra, 115 N.J. at 423. It is N.J.R.E.
410 which protects out-of-court "statement[s] made during plea
negotiations." Ibid.; see Pressler & Verniero, Current N.J.
Court Rules, comment 1.5.1 on R. 3:9-2 (2016). To the extent
that Rule 3:9-2 applies to such out-of-court statements, the
reasoning of Mezzanatto would be equally applicable. See
Mezzanatto, supra, 513 U.S. at 200-06, 115 S. Ct. at 801-04, 130
L. Ed. 2d at 703-07 (applying its reasoning to Fed. R. Crim. P.
11(e)(6)).

14 A-0591-13T2
when defendants are warned during plea negotiations that

anything they say may be used against them at trial, and the

defendants, with that understanding, proceed to make statements,

there is a waiver under Mezzanatto. See, e.g., United States v.

Sylvester, 583 F.3d 285, 287-94 (5th Cir. 2009), cert. denied,

559 U.S. 916, 130 S. Ct. 1313, 175 L. Ed. 2d 1096 (2010);

Campoy, supra, 207 P.3d at 796, 802; Stevens, supra, 610 N.W.2d

at 883, 888; Widmer, supra, 120 A.3d at 1025, 1027-28; Wills,

supra, 700 S.E.2d at 267, 269, aff'd, 762 S.E.2d at 4.7 We agree

that the giving of such a warning can give rise to a waiver if

the defendant, with that understanding, proceeds to give a

statement.8

7
These cases also find that a waiver after such a warning
enables the prosecution to use the defendant's statements in its
case-in-chief. Ibid.; see also United States v. Mitchell, 633
F.3d 997, 1004-06 (10th Cir. 2011); United States v. Hardwick,
544 F.3d 565, 569-70 (3d Cir. 2008). We need not reach that
question, as the State requested and the trial court granted
only use of the statement for impeachment. See Mezzanatto,
supra, 513 U.S. at 211, 115 S. Ct. at 806, 130 L. Ed. 2d at 710
(Ginsburg, J., concurring) ("As the Government has not sought
such a waiver, we do not here explore this question.").
8
As in Mezzanatto, such a warning may be sufficient even if it
does not explicitly mention Rule 410. See United States v.
Young, 223 F.3d 905, 911 (8th Cir. 2000), cert. denied, 531 U.S.
1168, 121 S. Ct. 1133, 148 L. Ed. 2d 999 (2001); Stevens, supra,
610 N.W.2d at 888; cf. State v. Hinton, 42 S.W.3d 113, 124-26
(Tenn. Crim. App. 2000) (finding Miranda warnings were
insufficient because they did not mention Tennessee's version of
the Federal Rule). However, a written proffer agreement
explicitly waiving N.J.R.E. 410 may enhance the clarity and
(continued)

15 A-0591-13T2
 Defendant makes three arguments why such impeachment should

not be allowed. First, she contends that allowing impeachment

will discourage plea bargaining. However, "[p]lea bargaining

has become firmly institutionalized in this State." State v.

Means, 191 N.J. 610, 618 (2007) (quoting State v. Taylor, 80

N.J. 353, 360-61 (1979)). As in the federal system, "the vast

majority of all cases are resolved through plea agreements with

the State." State v. Munroe, 210 N.J. 429, 447-48 (2012). As

explained in Mezzanatto, supra, "there is no reason to believe

that allowing negotiation as to waiver of the plea-statement

Rules will bring plea bargaining to a grinding halt; it may well

have the opposite effect." 513 U.S. at 209, 115 S. Ct. at 805,

130 L. Ed. 2d at 708-09. Indeed, plea bargaining is flourishing

in the federal courts since Mezzanatto. See Lafler v. Cooper,

__ U.S. __, __, 132 S. Ct. 1376, 1388, 182 L. Ed. 2d 398, 411

(2012) ("Ninety-seven percent of federal convictions . . . are

the result of guilty pleas").

Moreover, waiver can occur only if both parties agree. If

the parties have goals that can be "gained only by preserving

(continued)
enforceability of a waiver. See State v. Diorio, 422 N.J.
Super. 445, 460 (App. Div. 2011) (quoting a proffer agreement in
which the defendant "knowingly and voluntarily waives any right
[the defendant] has pursuant to N.J.R.E. 410"), aff'd in part,
rev'd in part on other grounds, 216 N.J. 598, 609-10 n.4 (2014).

16 A-0591-13T2
the inadmissibility of plea statements, they will agree to leave

intact the exclusionary provisions of the plea-statement Rules."

Mezzanatto, supra, 513 U.S. at 208, 115 S. Ct. at 805, 130 L.

Ed. 2d at 708.

Second, defendant argues such impeachment is unnecessary

and should not be allowed because N.J.R.E. 410 makes a

defendant's statements during plea negotiations admissible "in a

criminal proceeding for perjury." However, the Court in

Mezzanatto, supra, allowed waiver and impeachment even though

the Federal Rule similarly made such statements admissible "in a

criminal proceeding for perjury." 513 U.S. at 200 n.1, 115 S.

Ct. at 801 n.1, 130 L. Ed. 2d at 703 n.1 (quoting Fed. R. Evid.

410 (eff. 1980)). The Court stressed that using such statements

for impeachment preserved the integrity of the verdict and the

trial process. Id. at 204, 115 S. Ct. at 803, 130 L. Ed. 2d at

70. If "the defendant has made a false statement, either to the

prosecutor during the plea discussion or to the jury at trial[,]

making the jury aware of the inconsistency will tend to increase

the reliability of the verdict without risking institutional

harm to the [trial] courts." Id. at 205, 115 S. Ct. at 803, 130

L. Ed. 2d at 706; see also State v. Hawkins, 316 N.J. Super. 74,

82 (App. Div. 1998) (finding it reasonable to relax N.J.R.E. 410

at sentencing "to rebut a contrary factual contention expressly

17 A-0591-13T2
or inferentially raised" by the defendant), certif. denied, 162

N.J. 489 (1999).

Moreover, allowing such impeachment is supported by the

rulings of both our Supreme Court and the United States Supreme

Court permitting the use of even constitutionally-inadmissible

statements to impeach defendants' trial testimony. The United

States Supreme Court in Harris v. New York, 401 U.S. 222, 91 S.

Ct. 643, 28 L. Ed. 2d 1 (1971), and its progeny, has long

authorized such impeachment in order "'to prevent perjury and to

assure the integrity of the trial process.'" Kansas v. Ventris,

556 U.S. 586, 593, 129 S. Ct. 1841, 1846, 173 L. Ed. 2d 801, 808

(2009) (citation omitted). Our Supreme Court has repeatedly

agreed. See, e.g., State v. Francis, 191 N.J. 571, 594-95

(2007); State v. Harris, 181 N.J. 391, 439-40 (2004), cert.

denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898

(2005); State v. Burris, 145 N.J. 509, 521-25 (1996); State v.

Irving, 114 N.J. 427, 438-39 (1989); State v. Miller, 67 N.J.

229, 232-34 (1975). Those cases emphasized that

"'inadmissibility would pervert the constitutional right into a

right to falsify free from the embarrassment of impeachment

evidence from the defendant's own mouth.'" Burris, supra, 145

N.J. at 523 (quoting Oregon v. Hass, 420 U.S. 714, 723, 95 S.

Ct. 1215, 1223, 43 L. Ed. 2d 570, 578 (1975)).

18 A-0591-13T2
 The trial court relied on the Harris line of cases,

including Burris and Ventris, to create an impeachment exception

to N.J.R.E. 410. As stated above, however, N.J.R.E. 410 does

not permit a defendant's statements during plea negotiations to

be used for impeachment, unless the defendant waives the

protections of the rule. See also State v. Boone, 66 N.J. 38,

46-49 (1974) (declining to extend Harris and rejecting "the view

that withdrawn pleas are admissible to impeach the credibility

of the defendant who elects to testify at his trial"). Thus, we

cannot affirm based on the grounds adopted by the trial court.

It is well-established that a reviewing court can affirm a

decision on different grounds than those authorities offered by

the court being reviewed. See, e.g., Shim v. Rutgers, 191 N.J.

374, 378 (2007); State v. Nellom, 178 N.J. 192, 196 (2003); Isko

v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968); see

State v. McLaughlin, 205 N.J. 185, 194-95 (2011). As stated

above, waiver under Mezzanatto provides an alternate basis for

affirmance.

Here, we believe it is appropriate to remand to allow the

trial court and the parties to address in the first instance

whether defendant waived the protection against having her

formal statement used for impeachment, as provided by N.J.R.E.

410. See generally State v. Puryear, 441 N.J. Super. 280, 297,

19 A-0591-13T2
299 (App. Div. 2015) ("the question of whether Miranda rights

are knowingly, intelligently and voluntarily waived is a fact-

specific analysis," and appellate courts defer to trial courts'

factual findings). Thus, we remand for a hearing conducted "in

light of the principles to which we have adverted." Shim,

supra, 191 N.J. at 392.

On remand, the trial court shall consider if defendant made

a knowing and voluntary waiver of the protection against having

her formal statement used against her at trial for impeachment.

The court shall consider whether defendant had the benefit of

advice of counsel, as in Mezzanatto.9 If the court determines

that defendant did not waive that protection, it shall consider

whether its earlier ruling that defendant could be impeached

with her formal statement was harmless under R. 2:10-2.

Defendant claims she did not testify after that ruling

because her formal statement was highly prejudicial. Our

Supreme Court has recognized "the difficulty of characterizing

as harmless a trial court's error in ruling that the defendant's

prior convictions may be used for impeachment purposes" when

that ruling causes a defendant not to testify. State v.

Whitehead, 104 N.J. 353, 359 (1986). Our Court noted that "the

9
Here, we are not called upon to address a waiver agreement
entered into without the advice of counsel.

20 A-0591-13T2
United States Supreme Court has stated that almost any error

would result in automatic reversal because 'the appellate court

could not logically term "harmless" an error that presumptively

kept the defendant from testifying.'" Ibid. (quoting Luce v.

United States, 469 U.S. 38, 42, 105 S. Ct. 460, 463-64, 83 L.

Ed. 2d 443, 448 (1984)); see also State v. Singleton, 308 N.J.

Super. 407, 413-14 (App. Div. 1998) (finding plain error). The

trial court should apply the same principles here.

[At the direction of the court, the
published version of this opinion omits Part
III (which upholds the denial of defendant's
motion to dismiss the indictment), Part IV
(which upholds the denial of her motion for
acquittal and rejects her challenge to the
chain of custody), Part V (which rejects her
challenge to the jury instruction), Part VI
(which upholds the denial of her motion to
suppress), and Part VII (which upholds the
denial of her request to reveal the identity
of the confidential informant). See R.
1:36-3.]

Accordingly, we affirm the judgment of conviction, subject

to a remand for a hearing on whether defendant waived her right

to keep her formal statement from being used for impeachment.

We reject defendant's other arguments. We do not retain

jurisdiction.

21 A-0591-13T2