On February 9, 2021, the Supreme Court of New Jersey decided State v. Herby V. Desir, in which the Court affirmed and modified the judgement of the Appellate Division by limiting the defendant's discovery regarding the underlying search warrant affidavit that led to his conviction only to the redacted laboratory report and remanding the case for further consideration under the Luttenberger standard. The defendant in this case, Herby V. Desir, was arrested in connection with a controlled purchase of narcotics by a confidential informant (“CI”). The substance purchased from Mr. Desir was submitted to the Union County Prosecutor’s Office (“UCPO”) Laboratory, where it tested positive for the Schedule I controlled substance, Methylenedioxy-N-ethylcathinone (“Molly”). This formed the probable cause for the issuance of a no-knock search warrant for Mr. Desir’s home, where police seized 125 ounces of Molly, a handgun, hollow point bullets, currency, and drug paraphernalia. Mr. Desir was not charged in connection with the controlled purchase but was charged on multiple drug and weapons offenses, which led him to file a motion to suppress the evidence seized pursuant to the search warrant and move for a Franks hearing to challenge the veracity of the affidavit upon which the search warrant was issued because he did not sell Molly from his home. Five months later, Mr. Desir filed a motion to compel discovery pursuant to Rule 3:13-3(b), which requires the automatic disclosure of evidence that is exculpatory or otherwise relevant, seeking the initial investigation report, proof of money provided to the CI for the controlled purchase, laboratory reports, and transcript or audio recording of intercepted calls. The trial court denied Mr. Desir’s motion to suppress and for a Franks hearing first, finding that he had “failed to meet his burden of demonstrating that any of the statements in the search warrant affidavit were untrue.” Six months later, the trial court considered and denied Mr. Desir’s motion to compel discovery, finding his request to be a way of uncovering the identity of the CI and irrelevant to the charges he faced. As a result, Mr. Desir pled guilty to second-degree possession of Molly with intent to distribute and was sentenced to a seven-year prison term with three-and-one-half years of parole ineligibility. On appeal, the Appellate Division found that the timing and overall failure of the trial court to provide Mr. Desir discovery under provisions of Rule 3:13-3(b)(1)(C) once the indictment was filed had prejudiced the defendant’s ability to fairly pursue his motion to suppress and for a Franks hearing. The Appellate Division additionally noted that the “defendant did not object to receiving redacted versions” of the records and cited State v. Broom-Smith, in which a confirmatory drug analysis was conducted, to assert that Mr. Desir’s motion to compel discovery was indeed relevant to the charges he faced. With this, the Appellate Division reversed the denial of defendant’s motion to compel discovery and remanded for further proceedings so that the defendant could elect to either withdraw his guilty plea and proceed to trial or accept his earlier conviction and sentence.

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The State of New Jersey appealed this decision to the Supreme Court of New Jersey, asserting that:

1. The Appellate Division’s decision is contrary to Franks and State v. Howery since defendant did not meet the standard to challenge the veracity of the search warrant affidavit;

2. Rule 3:13-3 does not entitle defendant to the information he seeks, redacted or otherwise, because the information is not relevant to the charges against him; and 

3. The Appellate Division’s holding risks disclosure of the identity of confidential informants and will therefore have a chilling effect on their use.

In its review, the Supreme Court of New Jersey Court adopted the Luttenberger standard, which requires a defendant to describe 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.” Determination of whether this standard has been met rests in the sound discretion of the trial judge, who will review the appropriately redacted discovery in camera and 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. In applying this standard, the Court first noted that Mr. Desir’s discovery requests were neither relevant nor subject to automatic disclosure under Rule 3:13-3(b)(1) because he was not charged in connection with the controlled purchase. However, the Court found that Mr. Desir met the standard of reasonable specificity as to the laboratory report on which the affidavit was built and acknowledged the error of the trial court in hearing defendant’s motion to compel discovery six months after hearing his motion to suppress evidence, warranting in camera review by a trial judge to determine whether a Franks hearing should be granted. With this, the Court affirmed and modified the judgement of the Appellate Division by limiting the defendant's discovery only to the redacted laboratory report and remanding the case of State v. Herby V. Desir to the trial court for consideration under the Luttenberger standard. Justice Albin filed a dissent to this decision, in which Justices Lavecchia and Pierre-Louis joined. While he agrees that Mr. Desir is entitled to discovery as set forth in People v. Luttenberger, he finds that the majority opinion misapplies the Luttenberger standard in concluding that a sworn statement from Mr. Desir would not be sufficient to cast “reasonable doubt” on the veracity of a warrant affidavit to justify in camera review and discovery (as held in Luttenberger). He cites People v. Estrada to conclude that a defendant’s sworn declaration may be credited at the pre-Franks stage and further notes that the Luttenberger standard does not restrict the scope of relevant discovery that the trial court may review in camera. In his dissent, Justice Albin states that he would allow the trial court, in an in camera hearing, to determine what, if any, relevant discovery should be made available to Mr. Desir without limitation to only a redacted laboratory report. If you have been charged with a criminal offense, call The Law Office of Eric M. Mark to schedule a free, consultation to discuss the best criminal defense strategies for your case.