NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ,

v.
EBONEE R. WILLIAMS , a/k/a EBONY WILLIAMS , a/k/a FELTON N. WILLIAMS , a/k/a ABONEE WILLIAM S , a/k/a EBONEE ROSE WILLIAMS , a/k/a EEBONY WILLIAMS , Defendant

- Appellant.

____________________________________

Submitted October 20 , 2015

– Decided 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 (Mir iam Acevedo , Assistant Prosecutor , of counsel and on the brief). The opinion of the court was delivered by
LEONE, J.A.D. APPROVED FOR PUBLICATION April 6, 2016

APPELLATE DIVISION

April 6, 2016A
- 0591

- 13T2 2 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 prote ction by agreeing her statement could be used against her at trial. We reject her
other claims.

I.

O n 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 , t he
officer s found three " bricks " of heroin , each containing 150 bags . In a bedroom containing women ' s clothing and shoes , the
officers found : seven " de cks " 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 foundA
- 0591

- 13T2 3 defendant ' s purse , which contain ed 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 w ere 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); possessio n of heroin , N.J.S.A. 2C:35

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

- 10(a)(1) . D efendant
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 wi thin 1 000 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.A
- 0591

- 13T2 4 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 COUR T 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 ISSU ANCE 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 admitA
- 0591

- 13T2 5 evidence , and that determination will be reversed only if it
constitutes an abuse of discretion. '" State v. Kuropchak , 221

N.J. 3 68 , 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).

D efendant applied pre - indictment for admiss ion 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

D efendant 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 d efendant s aid 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).A
- 0591

- 13T2 6 During the interview , the investigator and defendant ' s counsel both questioned defendant. D efendant stated as follows.

S he resided in the Livingston Avenue apartment with Davila , the
father of her son. H er 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 . I t was
Justin who had access to the bedroom , kept his possessions in
the bedroom , and used the dresser . T he guns belonged to Justin , and the drugs belonged to Justin , Llamar , or Davila , all of whom were selling drugs . In the interview , d efendant initially s aid she was unaware of any drugs in the apartment or drug sales from the apartment.

L ater in the interview, she s tated 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
distribut ion.

T he trial prosecutor determined that defendant ' s formal statement did not sufficiently implicate her co - defendant s , so
the State ' s " drug court plea offer was withdrawn. " Later , theA
- 0591

- 13T2 7 prosecutor gave notice that if defendant took the witness stand , he w ould 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 stat e ment . Defendant argues this ruling conflict ed 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 i n 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 fa irness 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 (em phasis 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.A
- 0591

- 13T2 8 432 , 449 ( 2005) (noting that " most statements made during criminal plea negotiations " under N.J.R.E. 410 " are generally inadmissible in subsequent proceedings " ).

T he drafters of N.J.R.E. 41 0 stated that it " generally
follows Fed. R. Evid. 410 " (eff. 1980) [ hereinafter the Federal
Rule ] . Biunno , Weissbard & Ze gas , Current N.J. Rules of
Evidence , 1991 Supreme Court Committee C omment on N.J.R.E. 41 0 (20 15 ) [ hereinafter Committee Comment ] . The pertinent language
in N.J.R.E. 410 is essentially the same as in the Federal Rule. 4 By f ollowing 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).A
- 0591

- 13T2 9 N.J. Super. 64 (App. Div. 1984) . Commi ttee Comment , supra ;
accord State v. Brabham , 413 N.J. Super. 196 , 20 7
- 0 8 (App. Div.) , certif. denied , 2 03 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. 41 0 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 , 19 8 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 s tatements made by defendant s during plea negotiations.
Malik

- Ismail , supra , 292 N.J. Super. at 59 5 ; 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).A
- 0591

- 13T2 10 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 negoti ation 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) . T he United States Supreme Court , address ing both the
Federal Rule and Fed. R. Crim. P. 11(e)(6) in Me zz anatto ,

" 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 t he Federal Rule . See State v. Amidon , 967 A. 2d
1126 , 113 4
- 3 5 (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 , 59 7 (App. Div. 1995). Such aA
- 0591

- 13T2 11 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. W e 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 mayA
- 0591

- 13T2 12 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 appli es to evidentiary rules , and the part ies '

" a greements 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 ,

" l ike 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

R ule ' s protections did not impair the reliabil it y of the fact

finding process. I ndeed , " [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 t he prosecutor is interested in ' buying ' the reliability assurance t hat accompanies a waiver agreement , then precluding waiver can only stifle the market for plea bargains. "A
- 0591

- 13T2 13 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 knowin g 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 Mez zanat t o 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 , 88 5
- 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)A
- 0591

- 13T2 14 We believe Mezzanatto ' s persuasive r easoning 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 defendan t 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. " Howev er, 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)).A
- 0591

- 13T2 15 w hen defendant s are warned during plea negotiations that anything t he y say may be used against the m at trial , and the defendants, with that understanding , proceed to mak e statement s , 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 102 5 , 1027

- 28 ; Wills , supra , 700 S.E. 2d at 26 7 , 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 , 5 69

- 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 Mira nda 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)A
- 0591

- 13T2 16 D efendant 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 , " t he vast majority of all cases are resolved through plea agreements with
the St ate. " State v. Munroe , 210 N.J. 429 , 447
- 48 ( 2012). A s 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 o pposite effect. " 513 U.S. at 209 , 115 S. Ct. at 805 , 130 L. Ed. 2d at 70 8

- 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 (2 014).A
- 0591

- 13T2 17 the inadmissibility of plea statements , they will a gree 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 , d efendant 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 i ncrease 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 expresslyA
- 0591

- 13T2 18 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 Unite d States Supreme

Court permitt ing 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 omit ted). Our Supreme C ourt 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 , 5 45 U.S. 1 145, 12 5 S. Ct. 2973, 1 62 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 , 23 2

- 34 ( 1975) . Those cases emphasized that
"'i nadmissibility would pervert the constitutional right into a right to falsify free from the embarrassment of impeachm ent
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)).A
- 0591

- 13T2 19 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 s tated 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 gr ounds 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 provide s an alternate basis for
affirmance.

Her e , 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 S tate v. Puryear , 441 N.J. Super. 280 , 297 ,A
- 0591

- 13T2 20 299 (App. Div. 2015) ( " the question of whether Miranda rights are knowingly , intelligently and voluntarily waived is a fact

specific analysis ," and appellate court s defer to trial courts ' factual findings ). Thus , w e 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 I f the court determines
that defendant did not waive th at 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 di fficulty of characterizing
as harmless a trial court ' s error in ruling that the defendant ' s prior convictions may be used for impeachment purposes " wh en that ruling causes a defendant not to testify. State v.
Whitehead , 104 N.J. 353 , 359 ( 1986). Our Cour t noted that " the

9 Here, we are not called upon to address a waiver agreement entered into without the advice of counsel.A
- 0591

- 13T2 21 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. (quo ting Luce v.
United States , 469 U.S. 38 , 42 , 105 S. Ct. 460 , 46 3

- 6 4 , 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.