Evidentiary and Discovery Rulings Can Make or Break A Defense to A Criminal Action

State v. Desir

Appellate Docket No.: A-43-19

Decided February 9, 2021

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark.

In a recent opinion, the Supreme Court of New Jersey reviewed whether a defendant is entitled to discovery stemming from a purchase of narcotics by a confidential informant (CI) even though the defendant was not charged for any crime related to the purchase.

In State v. Desir, a CI, who had previously provided reliable information that led to arrests, had contacted the detective and claimed defendant stored and sold Methylenedioxy-N-ethylcathinone (sometimes referred to as Molly) at his home. According to the affidavit, the detective intercepted two phone calls between the CI and defendant and overheard them discuss the sale of Molly and firearms. The affidavit stated that, during the second call, defendant told the CI to come to his house. The detective followed the CI to defendant’s residence and monitored the home until after the CI exited. Afterward, the detective and the CI met at a pre-arranged location, where the CI gave the detective a substance obtained from defendant.

The affidavit stated that the “suspected ‘Molly’ obtained from [defendant] was submitted to the [UCPO] Laboratory where it . . . tested positive for [Molly,] a Schedule I controlled dangerous substance.” The affidavit did not state that the detective provided the CI with “buy money” with which to purchase the drugs. Based solely on that affidavit, a judge granted a no-knock search warrant for defendant’s home.

Defendant moved to suppress the contraband seized during the execution of the warrant and for a Franks hearing, which is a hearing to challenge the veracity of an affidavit upon which a facially valid search warrant is based. Counsel asserted that defendant did not sell Molly from his home. Five months after filing his motion to suppress and for a hearing, defendant moved to compel discovery, seeking the initial investigation report, any proof of money provided to the CI for the controlled buy, laboratory reports, and a transcript or audio recording of the intercepted calls.

The trial court denied defendant’s motion to suppress and for a Franks hearing.  The Judge denied the motion to compel six months later, leading to defendant’s guilty plea to possession of Molly with intent to distribute.

Defendant appealed, and the Appellate Division overturned the denial of the motion to compel.  The Supreme Court granted certification and ruled that although a defendant is not entitled to automatic discovery in this case, as there were no charges stemming from the transaction therefore it is not relevant, the Court can nonetheless grant the discovery request so long as defendant describes with reasonable particularity the information sought in discovery, sustained by a plausible justification “casting a reasonable doubt on the truthfulness of statements made in the affidavit.” The discovery request should be buttressed by support for assertions of misstatements or omissions in the search warrant affidavit that are material to the determination of probable cause, the basis for believing that the information exists, and the purpose for which the information is sought. Application of this standard and the determination of whether it has been met in an individual case rest in the sound discretion of the trial judge, who will review the appropriately redacted discovery in camera. Only after such in camera review will the judge determine whether the discovery sought contradicts material facts set forth in the affidavit, should therefore be disclosed, and to what limitations or redactions the discovery might be subject.

Evidentiary and discovery rulings can make or break a defense to a criminal action.  Information regarding a transaction that led to the basis of a search warrant can be very powerful to challenge the validity of the search warrant to begin with.  However, a defendant must show some kind of challenge to the statements of the affidavit in order to gain the discovery from the transaction, otherwise it is not relevant if defendant was not charged in the transaction.  Be sure to hire an experienced criminal defense attorney well-versed in evidence and discovery issues.  Failing to do so may result in inadmissible evidence being used to convict you, or a lacking of vital discovery that could be used for your defense.

At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any town in New Jersey including Borough of Clayton, Township of Deptford, East Greenwich Township, Township of Elk, Township of Franklin, Borough of Glassboro, Township of Greenwich, Township of Harrison, Township of Logan, Township of Mantua, Township of Monroe, Borough of National Park, Borough of Newfield, Borough of Paulsboro, Borough of Pitman, Township of South Harrison, Borough of Swedesboro, Township of Washington, Borough of Wenonah, Township of West Deptford, Borough of Westville, City of Woodbury, Borough of Woodbury Heights, and Township of Woolwich.

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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