Opinion
DOCKET NO. A-3420-12T3
07-24-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. RORY EDWARD TRINGALI, Defendant-Respondent.
John J. Hoffman, Acting Attorney General, attorney for appellant (Kenneth R. Sharpe, Supervising Deputy Attorney General, of counsel and on the brief). Lawrence A. Leven, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 11-04-0030.
John J. Hoffman, Acting Attorney General, attorney for appellant (Kenneth R. Sharpe, Supervising Deputy Attorney General, of counsel and on the brief).
Lawrence A. Leven, attorney for respondent. PER CURIAM
The State appeals from an order dated February 8, 2013 dismissing Indictment No. 11-04-0030 against defendant Rory Tringali for its failure to provide discovery within the time set forth in the court's September 10, 2012 discovery order. Because the judge abused his discretion in dismissing the indictment, we reverse.
I.
On March 18, 2008, a grand jury returned Indictment No. 08-03-0037 against Matthew Willner and defendant alleging multiple counts of first- and second-degree offenses associated with a scheme to commit computer criminal activities. After the completion of discovery in March 2010, the court, with the State's consent, granted defendant's motion to dismiss the indictment based upon defective grand jury instructions.
On April 4, 2011, a grand jury returned Indictment No. 11-04-0030 recharging defendant with second-degree offenses related to the alleged cybercrimes, namely N.J.S.A. 2C:5-2 (conspiracy), N.J.S.A. 2C:20-25(b) and N.J.S.A. 2C:2-6 (computer criminal activity), and N.J.S.A. 2C:21-17(a)(1) and N.J.S.A. 2C:2-6 (impersonation). At the June 2011 arraignment, the State informed the court that with the exception of a small amount of additional materials, discovery had been tendered under the predecessor indictment. Defense counsel informed the court that he had destroyed the discovery.
Following numerous court adjournments to accommodate defendant, he made a request for discovery on December 19, 2011. On September 10, 2012, the court imposed a thirty-day deadline for the State to produce discovery. On November 1, 2012, defendant filed a motion to dismiss the indictment based upon discovery violations and lack of jurisdiction. In December 2012, another judge considered defendant's motion. The State argued defense counsel destroyed discovery it had previously provided to defendant. Defense counsel did not dispute having received discovery under the first indictment, but explained to the court that he destroyed the compact disks containing the discovery after the dismissal of that indictment because, in his view, the information did not make sense. Furthermore, he claimed the multiple boxes of documents he received were seemingly unrelated to MedPro, Inc. the New Jersey company targeted by the scheme.
In dismissing the indictment, the judge acknowledged the extended nature of the proceedings including the initial indictment and the prior involvement of a deputy attorney general and investigator both of whom had since retired. The judge also recognized that defendant had been previously provided discovery, but stressed that the case could not move forward without the State turning over its evidence. Thus, the judge reasoned that the State's failure to comply with the court's September 2012 order warranted dismissal of the indictment. This appeal followed the issuance of an amended order on February 8, 2013.
On appeal, the State argues the court erred by dismissing the indictment without making a finding regarding the intent of the prosecutor's delay, or the extent of any prejudice to defendant. See, e.g., State v. Clark, 347 N.J. Super. 497 (App. Div. 2002). We agree.
"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). Dismissal of an indictment "is the last resort because the public interest, the rights of victims and the integrity of the criminal justice system are at stake." State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004). "[T]his drastic remedy is inappropriate where other judicial action will protect a defendant's fair trial rights." Clark, supra, 347 N.J. Super. at 508. "[T]he decision whether to dismiss an indictment lies within the discretion of the trial court, and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144 N.J. 216, 229 (1996) (citations omitted).
In this instance, the court sanctioned the State for its failure to comply with an order to provide discovery. Rule 3:13-3(f) contemplates that the trial judge take appropriate action when there has been a failure of compliance by the State with its continuing duty to disclose relevant information. The Rule provides,
If at any time during the course of the proceeding 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 orders as it deems appropriate.
[R. 3:13-3(f).]
In Clark, we determined that dismissal of an indictment may be warranted if the trial court makes a finding
of intention inconsistent with fair play and therefore inconsistent with due process, or an egregious carelessness or prosecutorial excess tantamount to suppression. In the absence of these conditions, the right of the public to its day in court in the prosecution of properly found indictments should be forfeited only if otherwise there would be manifest and harmful prejudice to defendant.
[Clark, supra, 347 N.J. Super. at 508-09.]
Here, the judge made no findings that the current prosecutor intentionally delayed providing discovery. Rather, the judge noted "the present attorney general, deputy attorney general [] inherited this case from a deputy who has since retired. And [the current prosecutor] has been at a disadvantage, the [c]ourt concedes that." Moreover, the judge made no findings as to any prejudice defendant may have incurred as a result of the delay.
While we do not condone the State's delay in reproducing the discovery, or the excuses provided by the State for not turning over discovery, even on the day of the motion, there were less draconian measures the court could have imposed under the circumstances short of dismissing the indictment. The prosecutor explained that the voluminous discovery documents had been extracted from the State's new computerized records system, his secretary had not made the compact disks of the documents before her absence from work due to sickness.
Under these circumstances, and with knowledge that the discovery would be available within a short period of time, the judge certainly could have extended the discovery schedule once again to accommodate the secretary's return to work. Accordingly, we find the court mistakenly exercised its discretion when it resolved the State's discovery violation by dismissing the indictment.
Where, as here, "the State's discovery-rule violation caused no apparent prejudice to defendant," the sanction granted by the court — dismissal of the indictment — was "manifestly inappropriate." See Marshall, supra, 123 N.J. at 134. We therefore reverse and remand to the trial court for reinstatement of the indictment, and further proceedings.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION
Rule 3:13-3 paragraph (g) was amended to add a sentence, and renumbered as paragraph (f), December 4, 2012 to be effective January 1, 2013. This amendment does not alter our analysis.