NOT FOR PUBLICATION WITHOUT THE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 WILLIAMS,

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 (Miriam 

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, 2016
2 A-0591-13T2

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 protection by agreeing her 

statement could be used against her at trial. We reject her 

other claims.

I.

On 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, the

officers found three "bricks" of heroin, each containing 150 

bags. In a bedroom containing women's clothing and shoes, the

officers found: seven "decks" 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 found 
3 A-0591-13T2

defendant's purse, which contained 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 were 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); possession of heroin, N.J.S.A. 2C:35-10(a)(1); 

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

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 within 1000 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. 
4 A-0591-13T2

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 COURT 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 

ISSUANCE 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 admit 
5 A-0591-13T2

evidence, and that determination will be reversed only if it 

constitutes an abuse of discretion.'" State v. Kuropchak, 221 

N.J. 368, 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). 

Defendant applied pre-indictment for admission 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 

Defendant 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 defendant said 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).
6 A-0591-13T2

During the interview, the investigator and defendant's 

counsel both questioned defendant. Defendant stated as follows. 

She resided in the Livingston Avenue apartment with Davila, the 

father of her son. Her 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. It was 

Justin who had access to the bedroom, kept his possessions in 

the bedroom, and used the dresser. The guns belonged to Justin,

and the drugs belonged to Justin, Llamar, or Davila, all of whom 

were selling drugs. 

In the interview, defendant initially said she was unaware 

of any drugs in the apartment or drug sales from the apartment. 

Later in the interview, she stated 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 

distribution.

The trial prosecutor determined that defendant's formal 

statement did not sufficiently implicate her co-defendants, so 

the State's "drug court plea offer was withdrawn." Later, the 
7 A-0591-13T2

prosecutor gave notice that if defendant took the witness stand,

he would 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 statement. 

Defendant argues this ruling conflicted 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 in 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 

fairness 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 (emphasis 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.
8 A-0591-13T2

432, 449 (2005) (noting that "most statements made during

criminal plea negotiations" under N.J.R.E. 410 "are generally 

inadmissible in subsequent proceedings"). 

The drafters of N.J.R.E. 410 stated that it "generally 

follows Fed. R. Evid. 410" (eff. 1980) [hereinafter the Federal

Rule]. Biunno, Weissbard & Zegas, Current N.J. Rules of 

Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 410

(2015) [hereinafter Committee Comment]. The pertinent language 

in N.J.R.E. 410 is essentially the same as in the Federal Rule.4 

By following 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).
9 A-0591-13T2

N.J. Super. 64 (App. Div. 1984). Committee Comment, supra; 

accord State v. Brabham, 413 N.J. Super. 196, 207-08 (App. 

Div.), certif. denied, 203 N.J. 440 (2010); State v. MalikIsmail, 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. 410 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, 198 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 statements made by defendants during plea negotiations. 

Malik-Ismail, supra, 292 N.J. Super. at 595; 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).
10 A-0591-13T2

In deciding that issue, we consider case law under "the 

source rule of N.J.R.E. 410," namely the Federal Rule. MalikIsmail, 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 negotiation 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). The United States Supreme Court, addressing both the 

Federal Rule and Fed. R. Crim. P. 11(e)(6) in Mezzanatto,

"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 the Federal Rule. See State v. Amidon, 967 A.2d 

1126, 1134-35 (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, 597 (App. Div. 1995). Such a 
11 A-0591-13T2

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. We 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 may 
12 A-0591-13T2

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 applies to evidentiary rules, and the parties'

"agreements 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,

"like 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 

Rule's protections did not impair the reliability of the factfinding process. Indeed, "[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 the prosecutor is interested in 'buying' the 

reliability assurance that accompanies a waiver agreement, then 

precluding waiver can only stifle the market for plea bargains."
13 A-0591-13T2

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 knowing 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 pleastatement 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 Mezzanatto 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, 885-88 (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)
14 A-0591-13T2

We believe Mezzanatto's persuasive reasoning 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 defendant 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." 

However, 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)).
15 A-0591-13T2

when defendants are warned during plea negotiations that 

anything they say may be used against them at trial, and the

defendants, with that understanding, proceed to make statements,

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 1025, 1027-28; Wills,

supra, 700 S.E.2d at 267, 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, 569-70 (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 Miranda 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)
16 A-0591-13T2

Defendant 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, "the vast 

majority of all cases are resolved through plea agreements with 

the State." State v. Munroe, 210 N.J. 429, 447-48 (2012). As 

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 opposite effect." 513 U.S. at 209, 115 S. Ct. at 805,

130 L. Ed. 2d at 708-09. 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 (2014). 
17 A-0591-13T2

the inadmissibility of plea statements, they will agree 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, defendant 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 increase 

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 expressly 
18 A-0591-13T2

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 United States Supreme 

Court permitting 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 omitted). Our Supreme Court 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, 545 U.S. 1145, 125 S. Ct. 2973, 162 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, 232-34 (1975). Those cases emphasized that 

"'inadmissibility would pervert the constitutional right into a 

right to falsify free from the embarrassment of impeachment 

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)). 
19 A-0591-13T2

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 stated 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 grounds 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 provides an alternate basis for 

affirmance. 

Here, 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 State v. Puryear, 441 N.J. Super. 280, 297,
20 A-0591-13T2

299 (App. Div. 2015) ("the question of whether Miranda rights 

are knowingly, intelligently and voluntarily waived is a factspecific analysis," and appellate courts defer to trial courts'

factual findings). Thus, we 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 If the court determines 

that defendant did not waive that 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 difficulty of characterizing 

as harmless a trial court's error in ruling that the defendant's 

prior convictions may be used for impeachment purposes" when 

that ruling causes a defendant not to testify. State v. 

Whitehead, 104 N.J. 353, 359 (1986). Our Court noted that "the 

 

9 Here, we are not called upon to address a waiver agreement 

entered into without the advice of counsel.
21 A-0591-13T2

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. (quoting Luce v. 

United States, 469 U.S. 38, 42, 105 S. Ct. 460, 463-64, 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.