RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2734-16T7

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MELVIN T. DICKERSON,

Defendant-Respondent.

___________________________

Argued May 23, 2017 – Decided July 3, 2017

Before Judges Fasciale and Gilson.

On appeal from Superior Court of New Jersey, 

Law Division, Monmouth County, Complaint No.

W-2017-170-1303.

Ian D. Brater, Assistant Prosecutor, argued 

the cause for appellant (Christopher J. 

Gramiccioni, Monmouth County Prosecutor, 

attorney; Mr. Brater, of counsel and on the 

brief).

Cody T. Mason, Assistant Deputy Public 

Defender, argued the cause for respondent 

(Joseph E. Krakora, Public Defender, attorney; 

Mr. Mason, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2 A-2734-16T7

The State, on leave granted, appeals from a February 7, 2017 

order denying its application to detain defendant pretrial because 

the State failed to produce certain discovery. The State also 

appeals from a February 8, 2017 order denying its motion for 

reconsideration. We affirm the part of the orders that compelled 

discovery, but reverse the denial of the application for pretrial 

detention and remand for a hearing.

I.

On January 31, 2017, an Asbury Park police officer applied 

for a warrant to search premises used by a barbershop and hair 

salon business (the Barbershop). That same day, a Superior Court 

judge reviewed the application and issued a search warrant. The 

following day, law enforcement officers executed the search 

warrant.

When the police officers entered the Barbershop, there were 

four individuals present, including defendant Melvin T. Dickerson 

and co-defendant Julius D. Franklin. A search of the premises 

revealed more than one-half ounce of suspected marijuana, a 9mm 

sub-machine gun, a .38 caliber semi-automatic handgun, a stun gun, 

various types of ammunition, two digital scales, a heat-seal 

vacuum, a box of "Ziploc" vacuum sealer gallon bags, a RadioShack 

Pro-94 radio suspected to be a police scanner, a cell phone, and 

several documents and correspondence bearing defendant's name.
3 A-2734-16T7

Defendant was arrested and charged with ten crimes: two counts 

of second-degree possession of a firearm while in the course of 

committing a narcotics offense, N.J.S.A. 2C:39-4.1(a); seconddegree unlawful possession of a machine gun, N.J.S.A. 2C:39-5(a); 

third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b)(1); third-degree possession of a defaced handgun, N.J.S.A.

2C:39-3(d); fourth-degree unlawful possession of a stun gun, 

N.J.S.A. 2C:39-3(h); fourth-degree unlawful interception and use 

of police emergency communications, N.J.S.A. 2C:33-21; fourthdegree possession of over one-half ounce of marijuana, N.J.S.A.

2C:35-10(a)(3); third-degree possession of marijuana with the 

intent to distribute, N.J.S.A. 2C:35-5(b)(11); and third-degree 

possession of marijuana with intent to distribute in a school 

zone, N.J.S.A. 2C:35-7(a).

Co-defendant Franklin was also arrested and charged with 

drug-related and weapons-related offenses. The two other 

individuals who were present at the Barbershop when the search 

warrant was executed were not charged with any crimes and were 

released.

The State moved to detain defendant pretrial under the 

Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26. 

Before the hearing, the State provided defense counsel with copies 

of the complaints, the affidavit of probable cause, the preliminary 
4 A-2734-16T7

law enforcement incident report (PLEIR), defendant's criminal 

history, the Public Safety Assessment (PSA), an incident report 

prepared by one of the officers who executed the search warrant, 

the arrest report, and the search warrant.

The PSA assessed defendant's risk of failure to appear as 

three on a scale of one to six, with one being a low risk and six 

being a high risk. The PSA also assessed defendant's risk of new 

criminal activity as three, again on a scale of one to six. The 

PSA, therefore, recommended that defendant be released pretrial 

on certain conditions, including monthly reporting.

The detention hearing was scheduled to be held on February 

7, 2017. At the beginning of the hearing, defense counsel informed 

the trial court that the State had not produced the affidavit 

filed in support of the search warrant and supporting investigative 

reports (collectively, search warrant information). After 

confirming that defendant was seeking that information, the court 

denied the State's application for defendant's detention without 

conducting a hearing. Instead, the court ordered defendant 

released subject to seven conditions, including weekly reporting 

and a prohibition of possessing dangerous weapons. 

The following day, on February 8, 2017, this court issued our

decision in State v. Robinson, 448 N.J. Super. 501 (App. Div.), 

aff'd and modified, ____ N.J. ____ (2017). That same day, the
5 A-2734-16T7

State moved for reconsideration of the order denying its 

application to detain defendant pretrial. The trial court heard 

and denied the motion for reconsideration on February 8, 2017. 

The court explained the reasons for its denial on the record and 

issued an order stating that the State was required to produce the 

search warrant information before the pretrial detention hearing 

and, because it failed to do so, the State's application was denied 

and dismissed "without the holding of a detention hearing."

We granted the State's motion for leave to appeal.

II.

On appeal, the State argues:

THE ORDER DENYING THE STATE'S MOTION FOR 

PRETRIAL DETENTION SHOULD BE REVERSED BECAUSE 

IT IS PREDICATED ON THE [TRIAL] COURT'S 

ERRONEOUS LEGAL CONCLUSION THAT RULE 3:4-

2(c)(1)(B) AND ROBINSON REQUIRED THE STATE TO 

TURN OVER THE SEARCH WARRANT AFFIDAVIT IN 

ANTICIPATION OF THE PRETRIAL DETENTION HEARING

In its brief on appeal, the State makes two related arguments 

regarding the scope of pretrial detention discovery. First, it 

contends that the search warrant information does not fall within 

the ambit of discovery called for under Rule 3:4-2(c)(1)(B). 

Second, the State argues that Rule 3:5-6(c) makes the search 

warrant information confidential and subject to disclosure only 

after an indictment is issued or the State makes a pre-indictment 

plea offer. The State also argues that, as a sanction for not 
6 A-2734-16T7

producing the discovery, the trial court erred in not holding a

hearing on the State's detention application. We address each of 

these arguments in turn.

A. Pretrial Detention Discovery

The discovery that the State must produce when it seeks to 

detain a defendant before trial under the CJRA is governed by Rule

3:4-2(c)(1)(B). In February 2017, when the State sought to detain 

defendant, the rule provided:

[I]f the prosecutor is seeking pretrial 

detention, the prosecutor shall provide the 

defendant with all statements or reports in 

its possession relating to the pretrial 

detention application. All exculpatory 

evidence must be disclosed.

[R. 3:4-2(c)(1)(B).]

Effective May 10, 2017, our Supreme Court modified and issued 

a new version of Rule 3:4-2(c), which provides:

(c) Procedure in Indictable Offenses. At the 

defendant's first appearance before a judge, 

if the defendant is charged with an indictable 

offense, the judge shall

(1) give the defendant a copy of the 

complaint, discovery as provided in 

subsections (A) and (B) below, and inform

the defendant of the charge;

(A) if the prosecutor is not seeking 

pretrial detention, the prosecutor 

shall provide the defendant with a 

copy of any available preliminary 

law enforcement incident report 
7 A-2734-16T7

concerning the offense and the 

affidavit of probable cause;

(B) if the prosecutor is seeking 

pretrial detention, the prosecutor 

shall provide the defendant with (i) 

the discovery listed in subsection 

(A) above, (ii) all statements or 

reports relating to the affidavit of

probable cause, (iii) all 

statements or reports relating to 

additional evidence the State 

relies on to establish probable 

cause at the hearing, (iv) all 

statements or reports relating to 

the factors listed in N.J.S.A.

2A:162-18(a)(1) that the State 

advances at the hearing, and (v) all 

exculpatory evidence.

[State v. Robinson, supra, slip op. at 33.]

In Robinson, the Supreme Court addressed the scope of 

discovery to be provided by the State when it seeks the pretrial 

detention of a defendant. Id. at 29-32. Initially, the Court 

gave an overview of the CJRA and explained the purpose of pretrial 

detention discovery. Id. at 3-10. The Court explained that at a 

pretrial detention hearing, the State is required to present "both 

some proof about the crime - - sufficient to establish probable 

cause - - and proof relating to the risk of flight, danger, or 

obstruction." Id. at 27. The Court then identified the interests 

that were involved in the detention hearing and explained, "the 

scope of the discovery rule in detention cases must reflect what 
8 A-2734-16T7

is at stake." Ibid. Accordingly, the Court identified the State's 

interest in public safety and the defendant's interest in his or 

her liberty. Ibid. The Court also reasoned that a "discovery 

rule should set forth a workable standard" that accounts for the 

"tight timeframe" involved in a detention hearing. Id. at 27-28.

To balance those interests and aims, the Court identified 

twelve principles that "should govern the disclosure of evidence 

at a detention hearing[.]" Id. at 29. Those principles are:

1. . . . [B]ecause the [CJRA] calls for a 

determination of probable cause and an 

assessment of the risk of danger, flight, and 

obstruction, which may include consideration

of the nature and circumstances of the offense

and the weight of the evidence, discovery 

should likewise be keyed to both areas. See

N.J.S.A. 2A:162-18(a)(1); -19(e)(2); -20(a), 

(b).

2. The complaint must be disclosed. 

3. The Public Safety Assessment must be 

disclosed.

4. The affidavit of probable cause must be 

disclosed. . . .

5. Any available PLEIR should be disclosed.

6. All statements and reports relating to 

the affidavit of probable cause should be 

disclosed. . . .

7. All statements or reports that relate to 

any additional evidence the State relies on 

to establish probable cause at the detention 

hearing should be disclosed. . . .
9 A-2734-16T7

8. Statements and reports related to items 

that appear only in the PLEIR need not be 

disclosed. . . .

9. Statements and reports relating to the 

risk of flight, danger, and obstruction, 

N.J.S.A. 2A:162-18(a)(1), which the State 

advances at the hearing, should be disclosed. 

. . .

10. The phrase "statements and reports" 

refers to items that exist at the time of the 

hearing. The terms plainly include relevant 

police reports. . . .

11. . . . [S]tatements and reports encompass

reports that are in the possession of the 

prosecutor, law enforcement officials, and 

other agents of the State. . . .

12. All exculpatory evidence must be 

disclosed.

[Id. at 29-32.]

In Robinson, the Court held that the State had to produce an 

initial police report about the witnesses to an alleged murder, 

including copies of the statements or reports of eyewitnesses. 

Id. at 41. The Court also held that when the eyewitnesses made 

an identification, the State was required to produce the 

information concerning the identification process, along with 

copies of any photographs used in the identification process. 

Ibid. Finally, the Court held that the State need not disclose 

surveillance videos. Ibid.
10 A-2734-16T7

"A trial court's resolution of a discovery issue is entitled 

to substantial deference and will not be overturned absent an 

abuse of discretion." State v. Stein, 225 N.J. 582, 593 (2016). 

Nevertheless, appellate review of the meaning of a court rule, 

such as Rule 3:4-2(c), is de novo. State v. Robinson, supra, slip 

op. at 25.

Applying the principles identified in Robinson and Rule 3:4-

2(c)(1)(B), we hold that the State needed to produce the search 

warrant information, including the affidavit submitted in support 

of that search warrant and all existing supporting investigative

reports leading to the search warrant application. This result 

is compelled by the language of Rule 3:4-2(c)(1)(B) and the sixth, 

seventh, and tenth principles identified by the Supreme Court in 

Robinson. Id. at 30-32. 

In its original form, Rule 3:4-2(c)(1)(B) called for the 

production of "all statements or reports in [the State's] 

possession relating to the pretrial detention application." As 

revised by the Supreme Court in Robinson, the rule now calls for 

the production of "all statements or reports relating to the 

affidavit of probable cause . . . [and] all statements or reports 

relating to additional evidence the State relies on to establish 

probable cause at the hearing[.]" Id. at 33
11 A-2734-16T7

Under either version of the rule, the State was obligated to 

produce the search warrant information. Here, defendant was 

charged with weapons-related and drug-related offenses based on 

items seized pursuant to a search warrant. Thus, the charges 

depended not only on the items seized, but the validity of the 

seizure of the items. Moreover, the affidavit of probable cause 

stated "PURSUANT TO THE EXECUTION OF A SEARCH WARRANT ON 02/01/2017 

THE ACCUSED WAS ARRESTED AFTER BEING FOUND TO BE IN POSSESSION OF 

SUSPECTED CDS, WEAPONS, AND CONTRABAND." Accordingly, the search 

warrant information should have been considered statements or 

reports relating to the pretrial detention application and 

relating to the affidavit of probable cause.

The State argues that the search warrant information was not 

called for under Rule 3:4-2(c) because the State was relying only 

on the items seized. The items, however, were seized under a 

search warrant and, if the search warrant were invalid, that would 

affect the probable cause of the charges against defendant. See

State v. Dispoto, 189 N.J. 108, 123 (2007) (holding that the 

evidence obtained through an invalid search warrant constitutes 

fruits of the poisonous tree and must be suppressed). We are not 

suggesting that a pretrial detention hearing should morph into a 

suppression hearing. Instead, we hold that when the State's 

evidence is largely dependent on items seized under a search 
12 A-2734-16T7

warrant, the affidavits submitted in support of the application 

for the search warrant and related police reports are relevant 

evidence relating to the issue of probable cause in a pretrial 

detention hearing.

B. Rule 3:5-6(c)

The State also argues that under Rule 3:5-6(c), the search 

warrant information is confidential and is subject to disclosure 

to defendant only at a later phase of the criminal process. Rule

3:5-6(c) provides:

All warrants that have been completely 

executed and the papers accompanying them, 

including the affidavits, transcript or 

summary of any oral testimony, duplicate 

original search warrant, return and inventory, 

and any original tape or stenographic 

recording shall be confidential except that 

the warrant and accompanying papers shall be 

provided to the defendant in discovery 

pursuant to [R.] 3:13-3 and available for 

inspection and copying by any person claiming 

to be aggrieved by an unlawful search and 

seizure upon notice to the county prosecutor 

for good cause shown.

The State focuses on the reference to Rule 3:13-3 and contends 

that because Rule 3:5-6(c) does not refer to Rule 3:4-2(c)(1)(B), 

the State need only disclose a search warrant and the related 

materials to defendant after an indictment is filed or unsealed 
13 A-2734-16T7

or if the State makes a pre-indictment plea offer. We reject this 

interpretation of Rule 3:5-6(c).

Rule 3:5-6(c) provides that a search warrant and related 

materials are confidential, subject to two exceptions. The first 

exception is that a criminal defendant has access to a warrant and 

the accompanying papers as provided in Rule 3:13-3, which governs 

criminal discovery. Second, any person claiming to be aggrieved 

by an unlawful search and seizure is entitled to inspect and copy 

the papers accompanying a warrant on good cause shown. Ibid. 

Here, because defendant is seeking the information, we apply the 

first exception.

Rule 3:5-6(c), like Rule 3:13-3, must now be read in harmony 

with Rule 3:4-2(c). Accordingly, if any documents or information 

are subject to disclosure under Rule 3:4-2(c), that rule controls 

the timing of disclosure.

To the extent that the State has confidentiality concerns, 

such concerns can be addressed by applying for a protective order. 

Indeed, the Supreme Court addressed this confidentiality issue in 

State v. Robinson, supra, slip op. at 34. In that regard, the 

Supreme Court explained:

In appropriate cases, the prosecutor "may 

apply for a protective order to redact, delay, 

or withhold the disclosure of materials that 

would expose witnesses and others to harm, 

hinder or jeopardize ongoing investigations or 
14 A-2734-16T7

prosecutions, undermine the secrecy of 

informants and confidential information which 

the law recognizes, or compromise some other 

legitimate interest." State in Interest of 

N.H., 226, N.J. 242, 256 (2016) (citing R.

3:13-3(a)(1), (e)(1)). The prosecutor may 

bring an application directly to the judge who 

will preside over the detention hearing.

[Id. at 34.]

Here, the State did not seek a protective order. Moreover, 

the State made no argument that the search warrant information 

contains confidential information or that the disclosure of the 

information would expose witnesses or others to harm. Furthermore, 

the State itself produced the search warrant. While we reject 

defendant's argument that the production of the search warrant 

acted as a waiver of the confidentiality of the search warrant 

information, the production of the search warrant without a 

companion application for a protective order demonstrates that,

in this case, there were no confidentiality concerns.

In summary, we hold that Rule 3:4-2(c)(1)(B) required the 

State to produce to defendant the search warrant information before 

the detention hearing. Accordingly, we affirm the trial court's 

order compelling that production.

C. The Appropriate Sanction

Lastly, we address the appropriate sanction for a failure to 

produce pretrial detention discovery.
15 A-2734-16T7

The State is obligated to produce discovery under Rule 3:4-

2(c), and that obligation is not optional. Moreover, the State 

must comply with its discovery obligations in good faith. State 

v. Robinson, supra, slip op. at 35 (explaining that the State must 

apply Rule 3:4-2(c) in "good faith").

If the State fails to act in good faith or if the State 

refuses to comply with a directive or order of the court, then it 

is subject to appropriate sanctions for failure to produce 

discovery. Rule 3:13-3(f) authorizes a trial court to take 

appropriate action when there has been a failure of compliance by 

the State with its duty to disclose relevant information. The 

rule provides, 

[i]f at any time during the course of the 

proceedings it is brought to the attention of 

the court that a party has failed to comply 

with this rule or with an order issued 

pursuant to this rule, it may order such party 

to permit the discovery of materials not 

previously disclosed, grant a continuance or 

delay during trial, or prohibit the party from 

introducing in evidence the material not 

disclosed, or it may enter such other order 

as it deems appropriate.

[R. 3:13-3(f).]

"The choice of sanctions appropriate for discovery-rule 

violations is left to the broad discretion of the trial court." 

State v. Marshall, 123 N.J. 1, 134 (1991), cert. denied, 507 U.S.

929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). The trial court, 
16 A-2734-16T7

however, needs to make specific findings and explain the reasons 

for imposing a sanction. State v. Clark, 347 N.J. Super. 497, 

508-09 (App. Div. 2002) (quoting State v. Laganella, 144 N.J. 

Super. 268, 282-83 (App. Div.), certif. denied, 74 N.J. 256 

(1976)). "An adjournment or continuance is a preferred remedy 

where circumstances permit." Id. at 509. Moreover, because 

pretrial detention applications implicate public safety issues and 

a defendant's civil liberties, the trial court's response to a 

discovery issue should seek to accommodate both interests. See

N.J.S.A. 2A:162-15. 

Accordingly, if the State has a good faith position for not 

producing certain discovery, there should be a disclosure to 

defendant, defense counsel, and the court. The court should then 

make a ruling and, if appropriate, direct the production of the 

relevant discovery. If at that point, the State refuses to provide 

the discovery, the court can fashion an appropriate sanction and 

should explain the reasons for the sanctions imposed. Moreover, 

to the extent that there are legitimate discovery disputes, they 

need to be addressed within the tight timeframes involved in a 

pretrial detention application. See N.J.S.A. 2A:162-19(d)(1) 

(allowing the detention hearing to be continued for up to three 

days upon the prosecutor's request or up to five days at the 

defendant's request). Consequently, candor and good faith by the 
17 A-2734-16T7

State is necessary and an intentional failure to comply with 

discovery obligations is an appropriate consideration when 

determining the sanction.

Here, the trial court never addressed the appropriate 

sanction and never explained the reasons for imposing a sanction. 

Instead, when the trial court was informed that the State had not 

produced the search warrant information, the court, without 

holding a hearing, ordered defendant to be released on certain 

conditions. Thus, the court never gave the State the opportunity 

to produce the search warrant information. In the transcripts of 

the proceedings held on February 7 and 8, 2017, there are hints 

that the trial court had previously addressed the scope of 

discovery the State needed to produce before a pretrial detention 

hearing. The record, however, is insufficient to allow us to 

evaluate whether the State was acting in good faith and whether 

the court considered a sanction less than a denial of the State's 

application for pretrial detention. Consequently, we vacate the 

portions of the orders that denied the State's application for 

defendant's pretrial detention for failure to produce discovery 

and we remand for a detention hearing.

Affirmed in part, reversed in part, and remanded for further 

proceedings. We do not retain jurisdiction.