NOT FOR PUBLICATION WITHOUT THE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-2408-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NATASHA MALAVE,
Defendant-Appellant.
_______________________________
Submitted March 30, 2017 - Decided June 22, 2017
Before Judges Lihotz and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Accusation No.
13-11-3357.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lon Taylor, Assistant Deputy
Public Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Patrick D. Isbill,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Natasha Malave appeals from a January 20, 2016
judgment of conviction for violating probation and the imposed
364-day county jail sentence. On appeal, defendant argues:
THE TRIAL COURT, WITHOUT ANY HEARING,
IMPROPERLY RELINQUISHED DETERMINATION OF
RECORD DISCLOSURE TO THE PROBATION DEPARTMENT
IN RESPONSE TO [DEFENDANT'S] SUBPOENA IN
PREPARATION FOR A [VIOLATION OF PROBATION]
HEARING.
Following a review of the facts and applicable law, we affirm.
We summarize the facts relevant to the instant appeal.
Defendant pled guilty to fourth-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d), and on February 7, 2014, was sentenced
to a one-year term of supervised probation. After a second
violation of the conditions of probation, defendant subpoenaed
records regarding her violations of probation (VOP), which were
released pursuant to a protective order.
During the January 8, 2016 hearing on the alleged VOP, Deron
Bunton, defendant's probation officer, testified regarding
defendant's six missed probation meetings, her failure to enroll
and complete anger management classes, her failure to pay the
monthly probation fees, and her failure to report her change of
address.1 He explained she last contacted him in April 2015 and
related his unsuccessful efforts to locate her at two separate
addresses. On cross-examination, the probation officer admitted
defendant failed to cancel or reschedule dates she was unable to
1
The probation officer noted the missed meetings occurred on
March 19, May 18, June 15, June 22, June 29 and July 6, 2015.
2 A-2408-15T2
attend; she did, however, explain she was unable to pay the fee
for anger management classes.
Defendant also testified. She explained her obligation to
care for two young children, her inability to pay for anger
management classes and her insistence she lived at the address
provided to the Probation Division. Defendant's testimony during
the VOP hearing did not dispute her failure to appear, but
suggested it resulted because her mother was unavailable to care
for her infant. She noted she appeared in April 2015, with her
baby, and her probation officer specifically instructed her not
to bring her infant to the next appearance because it was unsafe.
Defendant did not state she attempted to notify Probation of her
child care problems after this date nor did she question her
probation officer on this point during the hearing.
Following the close of evidence, the trial judge issued an
oral opinion. He credited Bunton's testimony as clear, concise,
and consistent. The judge found defendant did not inform probation
or seek to obtain an excused absence, but "it was just an election
on the part of [defendant] not to show up." He also found she
failed to provide a valid address. Based on these facts, the
judge concluded the State established, by clear and convincing
evidence, defendant failed to substantially comply with conditions
3 A-2408-15T2
of probation for which he imposed a 364-day county jail, reduced
by 224 days jail credit.
"We accord substantial deference to a trial court's issuance
of a discovery order and will not interfere with such an order
absent an abuse of discretion," however, we accord no deference
to the trial court's interpretation of the meaning or scope of a
court rule. State v. Hernandez, 225 N.J. 451, 461 (2016) (citing
State ex rel A.B., 219 N.J. 542, 554-55 (2014)). While a violation
of probation proceeding is not a "stage in a criminal prosecution,"
State v. Lavoy, 259 N.J. Super. 594, 601 (App. Div. 1992) (quoting
State v. Reyes, 207 N.J. Super. 126, 134 (App. Div.), certif.
denied, 103 N.J. 499 (1986)), discovery in these matters is
governed by our rules governing criminal practice. Ibid. (citing
R. 3:1-1).
To prevail on a VOP, the State must prove by a preponderance
of the evidence, a defendant has "inexcusably failed to comply
with a substantial requirement" imposed as a condition of
probation. Reyes, supra, 207 N.J. Super. at 137. The State has
no obligation to prove "excusability" for the alleged violations.
Id. at 139.
Courts may issue protective orders to limit discovery of
"confidential information recognized by law." R. 3:13-3(e)(1).
4 A-2408-15T2
This includes records made confidential by Rule 1:38-3(f)(5),
"pertaining to persons on probation."
On appeal, defendant argues the protective order, issued
without a hearing, wrongfully limited discovery of her probation
file.2 Defendant does not challenge Probation's compliance with
the terms of the judge's order, rather she suggests the judge
improperly abrogated his responsibility to determine what
information in her file was and was not relevant. She maintains
the failure to release her entire file, violated her rights of due
process.
We find no abuse of discretion by the judge's order to protect
confidential portions of the file, not relevant or necessary to
prove defendant's claim she contacted her probation officer to
explain her childcare difficulties. Further, in light of her
admission of failing to appear, defendant's claimed due process
violations are unavailing as she does not explain what should have
been provided, what was inappropriately redacted or how any
unrevealed information would alter the outcome. We conclude the
order properly balanced defendant's right to discovery, R. 3:13-
2
The protective order limited discovery to "relevant" evidence
of defendant's contact with the Probation Division and compelled
the Division to produce "all documents and . . . notes that [were]
relevant" to the charges against defendant, as redacted.
5 A-2408-15T2
3, with the Division's need to maintain its confidential of its
internal records. R. 1:38-3(f)(5).
As to defendant's argument her violations were not willful
or substantial, we are not persuaded. This was defendant's second
violation of the very clear terms and conditions of her sentence.
She did not relate her inability to comply on the dates scheduled,
or attempt to reschedule when she missed an appointment. Also,
she moved without notice, requiring Probation to locate her to
continue its monitoring. The conditions of probationary release
were designed to assure defendant's continued law abiding conduct.
Her efforts to defeat these requirements, despite knowledge of the
consequences, cannot be overlooked. For three months she failed
to report and could not be located at either address on file.
These facts are significant and support the judge's finding her
violations were willful and substantial.
Affirmed.
6 A-2408-15T2
STATE OF NEW JERSEY VS. NATASHA MALAVE(13-11-3357, CAMDEN COUNTY AND STATEWIDE)
Combined Opinion