NOT FOR PUBLICATION WITHOUT THE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-2263-17T2
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MARKEITH BRYSON,
Defendant-Respondent.
___________________________________
Argued May 31, 2018 – Decided July 12, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 17-07-0739.
Jennifer B. Paszkiewicz, Assistant
Prosecutor, argued the cause for appellant
(Scott A. Coffina, Burlington County
Prosecutor, attorney; Jennifer B.
Paszkiewicz, of counsel and on the brief).
Robert M. Perry argued the cause for
respondent (Daniel M. Rosenberg & Associates,
LLC, attorneys; Robert M. Perry, on the
brief).
PER CURIAM
We granted the State leave to appeal from an interlocutory
January 10, 2018 order suppressing the testimony of two of the
State's witnesses and the medical records of the victim pursuant
to Rule 3:13-3(f). We reverse and remand.
We glean the following facts from the record. On March 1,
2017, police were dispatched to a location in Florence Township
after reports of a shooting. Shortly thereafter, Burlington City
police stopped a vehicle being driven by Eugene Greshan. During
the stop, police discovered he had been shot multiple times. When
questioned by police regarding the shooting, Greshan denied
knowing who shot him and was unwilling to acknowledge he was shot.
On March 15, 2017, Albert Morton claimed to be an eyewitness
to the shooting and gave a videotaped statement to detectives
identifying defendant Markeith Bryson as the shooter. On April
4, 2017, Nahjee Cox also claimed to be an eyewitness to the
shooting and gave a videotaped statement to detectives identifying
defendant as the shooter.
On July 6, 2017, a grand jury indicted defendant for: first-
degree attempted murder, N.J.S.A. 2C:5-1(a)(1) and 2C:11-3(a)(1)
(count one); second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1) (count two); third-degree aggravated assault, 2C:12-
1(b)(2) (count three); second-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count four); unlawful
2 A-2263-17T2
possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count five); and
fourth-degree aggravated assault, 2C:12-1(b)(4) (count six).
Defendant was detained pretrial with a scheduled release date of
January 6, 2018, pursuant to N.J.S.A. 2A:162-22.
On August 18, 2017, defendant demanded discovery of
audiovisual tapes and transcripts of all witness statements.
During a September 5, 2017 pre-trial conference, defendant
informed the trial court the State had yet to provide audiovisual
tapes and transcripts of any witness statements. Defendant further
alerted the trial court and the State to this discovery issue in
his pretrial memorandum dated November 22, 2017. Defendant also
indicated the State failed to provide Greshan's medical records.
On November 22, 2017, defendant again alerted the trial court
of the State's failure to provide the witness statements in any
form. Two days later, the State provided defendant with the tapes
of the witness statements but no transcripts. Trial was initially
set to commence on November 28, 2017, but was adjourned to January
3, 2018, at the State's request.
The State conceded the witness statements were not sent for
transcription until November 28, 2017. Additionally, the State
did not subpoena Greshan's medical records until December 4, 2017.
On January 2, 2018, only one day before trial, the State
provided defendant with the victim's medical records and the
3 A-2263-17T2
transcripts of three statements, including defendant's. The court
adjourned trial for one day for unrelated reasons. On January 4,
2018, the State provided defendant with transcripts of the
interviews given by Morton and Cox, but the latter was incomplete.
A weather-related court closure delayed commencement of the
trial until January 5, 2018.1 Defendant moved to exclude the
testimony of the other four individuals as well as Greshan's
medical records due to the State's failure to timely provide
discovery. The trial court requested additional briefing and
heard further argument on January 9, 2018. Defendant narrowed his
motion to exclude only the testimony of Morton and Cox and
Greshan's medical records. The State represented it would not be
using the videotaped statements or the transcripts of those
statements in its case-in-chief.
On January 10, 2018, the trial court granted defendant's
motion to exclude Morton and Cox's testimony and the victim's
medical records. The judge found the State failed to comply with
the request for discovery," a point which "has not been contested
by the State," and the remedy for which "is within the broad
discretion of the [c]ourt." The judge concluded exclusion of the
1
Although defendant's speedy trial release date was scheduled
for January 6, 2018, he remained incarcerated because the trial
court determined trial had commenced.
4 A-2263-17T2
testimony of Cox and Morton and the victim's medical reports was
the "appropriate remedy" for the State's failure to comply with
defendant's discovery requests.
The judge specifically found: (1) "[t]he plain language of
[the discovery] rule prohibits the late production of
transcripts"; (2) "defendant is prejudiced by the late production
of this discovery" because it "does not allow the defendant to
properly prepare for cross-examination" and granting a
continuance, as the State requested, "may result in a defendant
being incarcerated beyond the period that a trial would normally
take"; (3) "[g]ood cause for the late production is absent" as the
State had notice, as early as August 18, 2017, that it was required
to provide defendant with the tapes and transcripts of witness
statements thirty days prior to the trial date of November 28,
2017, yet failed to do so; (4) the materiality of the evidence not
properly disclosed during discovery led to "defendant's inability
to investigate while the trial [was] proceeding"; and (5) there
was "somewhat in this case a pattern about discovery and that the
alternative remedy of an adjournment would result in manifest and
harmful prejudice to the defendant." The judge entered an order
reflecting his ruling on January 10, 2018.
On January 11, 2018, the trial court granted the State's
motion for stay of trial and defendant's release pending appeal.
5 A-2263-17T2
We granted the State's emergent motion for leave to appeal and to
continue the stay of the trial court's ruling.2
On appeal, the State raises the following point:
[THE TRIAL COURT] ERRED IN CONCLUDING THAT
EXCLUSION OF THE WITNESSES' TESTIMONY WAS THE
APPROPRIATE REMEDY FOR THE STATE'S LATE
PROVISION OF THE TRANSCRIPTS OF THE WITNESSES'
OUT-OF-COURT STATEMENTS.
"A trial court's resolution of a discovery issue is entitled
to substantial deference and will not be overturned absent an
abuse of discretion." State v. Stein, 225 N.J. 582, 593 (2016).
This court "need not defer, however, to a discovery order that is
well 'wide of the mark,' or 'based on a mistaken understanding of
the applicable law.'" State v. Hernandez, 225 N.J. 451, 461 (2016)
(citation omitted) (quoting Pomerantz Paper Corp. v. New Cmty.
Corp., 207 N.J. 344, 371 (2011)). Additionally, the "review of
the meaning or scope of a court rule is de novo" with no deference
"to the interpretations of the trial court . . . unless we are
persuaded by [its] reasoning." State v. Tier, 228 N.J. 555, 561
(2017) (citing Hernandez, 225 N.J. at 461).
The State argues the trial court abused its discretion in
excluding Morton and Cox's testimony at trial. We agree.
2
The State does not appeal the exclusion of Greshan's medical
records.
6 A-2263-17T2
Rule 3:13-3(b)(1)(G) provides discovery shall include record
of statements, signed or unsigned, of witnesses and co-defendants
which are within the possession, custody or
control of the prosecutor and any relevant
record of prior conviction of such persons.
The prosecutor also shall provide the
defendant with transcripts of all
electronically recorded co-defendant and
witness statements by a date to be determined
by the trial judge, except in no event later
than 30 days before the trial date set at the
pretrial conference, but only if the
prosecutor intends to call that co-defendant
or witness as a witness at trial.
In turn, Rule 3:13-3(f) provides, in pertinent part:
If at any time during the course of the
proceedings it is brought to the attention of
the court that a party has failed to comply
with this rule or with an order issued
pursuant to this rule, it may order such party
to permit the discovery of materials not
previously disclosed, grant a continuance or
delay during trial, or prohibit the party from
introducing in evidence the material not
disclosed, or it may enter such other order
as it deems appropriate.
To be sure, the State should have provided the transcripts
by December 4, 2017. However, a trial judge is not limited to
preclusion of the testimony as a remedy. "The rule specifically
provides for discretion in formulating a sanction for a discovery
violation." State v. Clark, 347 N.J. Super. 497, 509 (App. Div.
2001) (citations omitted). In resolving discovery disputes and
7 A-2263-17T2
imposing sanctions, "[a]n adjournment or continuance is a
preferred remedy where circumstances permit." Ibid.
It is well understood "the sanction of preclusion is a drastic
remedy and should be applied only after other alternatives are
fully explored[.]" State v. Washington, 453 N.J. Super. 164, 190
(2018) (alteration in original) (quoting State v. Scher, 278 N.J.
Super. 249, 272 (App. Div. 1994)); see also State v. Dimitrov, 325
N.J. Super. 506, 511 (App. Div. 1999) ("[I]t is axiomatic that
'[b]efore invoking the ultimate sanction of barring a witness, the
court should explore alternatives.'" (second alteration in
original) (quoting State v. Volpone, 150 N.J. Super. 524, 530
(App. Div. 1977)); Zaccardi v. Becker, 88 N.J. 245, 253 (1982)
(explaining "although it is the policy of the law that discovery
rules be complied with, it is also the rule that drastic sanctions
should be imposed only sparingly"). However, "repeated and
flagrant derelictions" of discovery rules "may require application
of the sanction of preclusion." State v. Burnett, 198 N.J. Super.
53, 61 (App. Div. 1984). When adjournment of the trial will avoid
the risk of prejudice resulting from untimely discovery, trial
courts have discretion to choose that option rather than
suppression. See State v. Utsch, 184 N.J. Super. 575, 580 (App.
Div. 1982).
Here, continuance, not exclusion, was the appropriate remedy.
8 A-2263-17T2
Exclusion of the testimony on the ground that
the discovery rights of defendant were
violated was not warranted. Mindful of the
general policy of admissibility, the judge
should have availed himself of other means of
protecting defendant from surprise. Ample
protection of defendant's interest could have
been achieved by according defense counsel an
opportunity to interview the complaining
witness, by granting a brief continuance, or
by some other procedure which would have
permitted defense counsel to prepare to meet
the evidence.
[State v. Lynch, 79 N.J. 327, 335-36 (1979)
(quoting State v. Moore, 147 N.J. Super. 47,
51 (App. Div. 1977)).]
The present circumstances favored granting a continuance
rather than excluding the testimony. First, defendant was provided
with copies of the videotaped statements on November 24, 2017,
some thirty-nine days before the January 3, 2018 trial date.
Second, defendant has now had well more than thirty days to prepare
cross-examination as a result of the stay of the trial court's
ruling pending appeal, eliminating any alleged prejudice. Third,
the delay in providing the transcripts did not result from an
effort by the State to gain a tactical advantage.
Furthermore, the trial court failed to address whether the
testimony of Morton and Cox "was so important that its exclusion
[would have] an effect on the fairness of the trial." Washington,
453 N.J. Super. at 192 (alteration in original) (quoting State v.
Williams, 214 N.J. Super. 12, 22 (App Div. 1986)). "The trial of
9 A-2263-17T2
criminal cases involves important interests of the State, the
alleged victims, and the public, not just those of defendant
alone." Ibid. (citations omitted). Here, the State asserts it
is unable to prove its case if the testimony of Morton and Cox is
precluded. Thus, the State will be forced to dismiss the charges
if the trial court's ruling stands. Important public policy
reasons militate against this result.
"We recognize that trial courts are vested with the discretion
to fashion an appropriate sanction for a violation of discovery
obligations." State v. Richardson, 452 N.J. Super 124, 137 (App.
Div. 2017) (citing State v. Dabas, 215 N.J. 114, 141 (2013)).
However, under these circumstances, the trial court should have
ordered a continuance of trial, which would have allowed the State
to present, and the defendant to respond to, this important
testimonial evidence. By declining to do so, and instead excluding
the testimony, the trial court abused its discretion.
Finally, we note N.J.S.A. 2A:162-22, the speedy trial section
of the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, did
not preclude a continuance of trial. Washington, 453 N.J. Super.
at 193. "'If the trial does not commence within' 180 days of
indictment, not counting excludable time, a defendant may be
entitled to the speedy trial statute's remedy: that 'the eligible
defendant shall be released from jail.'" Ibid. (quoting N.J.S.A.
10 A-2263-17T2
2A:162-22(a)(2)(a)). Defendant may apply for release from jail
and, in response, the State may request excludable time under
N.J.S.A. 2A:162-22(b)(1)(g). "Thus, the speedy trial statute was
not a basis for denying the continuance." Ibid. "[C]ourts should
consider discovery issues separately from speedy trial issues" as
it is "improper to impose a discovery sanction based on a perceived
failure to comply with the speedy trial statute." Id. at 187.
We reverse the order to the extent that it bars the testimony
of Morton and Cox and remand for trial.
Reversed and remanded.
11 A-2263-17T2