Opinion
DOCKET NO. A-2877-10T1
03-08-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROSARIO DIGIROLAMO, Defendant-Appellant.
Jerome A. Ballarotto argued the cause for appellant. Daniel I. Bornstein, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Bornstein, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-01-0029.
Jerome A. Ballarotto argued the cause for appellant.
Daniel I. Bornstein, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Bornstein, of counsel and on the brief). PER CURIAM
Following unsuccessful motions to dismiss the indictment as well as to suppress evidence, defendant Rosario DiGirolamo entered a plea of guilty to aggravated manslaughter, N.J.S.A. 2C:11-4. The trial judge, consistent with the plea agreement, sentenced defendant to a prison term of twenty-five years, subject to an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. As part of his plea agreement, defendant reserved the right to appeal the denial of his pretrial motion to suppress. See R. 3:9-3(f); R. 3:5-7(d). He now appeals, and we affirm.
We limit our recitation of the facts to those that are relevant to the issues raised on appeal. On June 8, 2007, defendant killed the victim, Amy Giordano, by striking her on the head with a hammer. Defendant, who was married to another woman, was having an affair with the victim, and the parties had a child together who was ten months old at the time of the killing. After killing Giordano, defendant sawed her body into parts, stuffed her remains in a suitcase and dumped the suitcase in a pond on Staten Island. Defendant then drove to Delaware and abandoned his child in a parking lot at Christiana Hospital. Less than a week later, defendant fled the country, flying to Milan, Italy.
Approximately one week before Giordano's disappearance, defendant went to Lowe's Home Improvement in Paterson, where his friend John Russo worked. According to Russo, defendant discussed problems he was having with the victim and asked Russo about disposing of her body. When Russo and defendant went to a diner during Russo's lunch break, defendant disclosed that he had attempted to kill Giordano about a month earlier by crushing prescription sleeping pills and placing them in her drink. That attempt was unsuccessful because Giordano became nauseous but remained conscious. Defendant said he intended to kill Giordano by striking her on the head with a pry bar, and that he had a saw he could use to cut her up. When asked whether he told defendant of a spot where "something could be dumped and not be found," Russo admitted that when he and defendant were in the diner, he told defendant he knew of a pond where he had ice skated as a child.
Defendant purchased contractor bags, a Sawzall blade and drain cleaner from Lowe's. He showed Russo the type of pry bar he was going to use to hit Giordano. It was twelve inches long, made of steel and flat but with a curve on the end.
On June 8, 2007, defendant was observed on various surveillance videos shopping with the child. At 3:00 p.m., he purchased a fourteen-inch Buck Brothers saw.
Defendant contacted Russo that same day and, among other things, indicated that "[i]t's done." Later that day, defendant called Russo in a state of panic. He indicated that his Sawzall blade was not cutting properly, and he asked Russo what he should do. Russo told defendant he had no idea. Defendant then asked if Russo could meet him the next morning before Russo went to work so Russo could show him the location of the pond Russo had previously recommended.
The next morning, defendant met Russo, and they eventually proceeded to a pond on Staten Island. Russo drove to the pond in his own vehicle, and defendant followed. They parked near the pond. Defendant opened the trunk of his car, dragged out a dark-colored suitcase, and while Russo watched the child who was in defendant's car, defendant carried the suitcase into the woods. Russo heard a splash. Defendant returned and warned Russo, "You know you can never tell anybody about this." Defendant also said that he had "hit Amy in the back of her head [and] neck area," but Russo told defendant he did not want to know the details. Defendant told Russo he had used a hacksaw to cut up Giordano's body, which "worked just fine." He also indicated that when he cut up her body, he had worn old clothes, which he planned to throw away. Later that day, defendant took the child to Delaware, where he abandoned the child in a parking lot.
On June 26, 2007, the police executed a search warrant at Giordano's apartment and found blood throughout. Subsequent testing revealed that Giordano's DNA profile matched the blood recovered from the center hallway, bedroom door jamb, bedroom wall and bathroom door jamb.
After eight weeks of investigation, the police obtained a search warrant for defendant's home. On July 31, 2007, the police executed that warrant and found a Buck Brothers saw in a Lowe's plastic bag. The cardboard manufacturer's sleeve was on the blade of the saw.
On August 8, 2007, Detective R.S. MacConnell of the New Jersey State Police Crime Scene Investigation Unit examined the saw for fingerprints. One impression was found, but it could not be identified. Thereafter, the saw was examined and tested for blood DNA, with negative results.
In August 2007, defendant returned from Italy and turned himself in to the Delaware State Police on charges relating to the abandonment of his son. He later pleaded guilty to second-degree reckless endangerment and child abandonment, and he was sentenced to probation.
On December 21, 2007, the police interviewed Robert Carpenito, who said that his ex-wife, Rachel Stansbery-Finn, had spoken with defendant in June 2007. Stansbery-Finn reported that at that time, defendant was "not acting like himself" and that he had said, "[W]here [Amy Giordano] is, no one will find her." Carpenito agreed to call and meet with Stansbery-Finn in an effort to elicit further information concerning her communications with defendant. Carpenito also agreed to allow his conversations with Stansbery-Finn to be recorded.
At the direction of law enforcement, Carpenito recorded a conversation with Stansbery-Finn. During that conversation, Stansbery-Finn said that defendant "came to her home and admitted he killed Amy Giordano, placed her body in a suitcase and dumped the suitcase in a pond [on] Staten Island, New York."
On March 20, 2008, arrest warrants were issued for defendant and Russo. Defendant was arrested that day. A few days later, having spoken to the police, Russo accompanied them to Clay Pit Ponds State Park Reserve, pointing to the area where he had seen defendant enter the woods with the suitcase to dispose of Giordano's body. The police found a dark-colored suitcase in a shallow section of Clay Pit Pond. Inside the suitcase were empty heavy-duty compactor bags and debris. There was a hole in the suitcase through which body parts had fallen into the water. The police discovered a rib cage, spinal column and part of a pelvis in the water. Divers also discovered "various human bones and bone fragments" in the pond. The bones and bone fragments were analyzed and determined to contain DNA that positively matched Giordano's DNA. The victim's sawed-off head, hands and legs were never found. Also recovered from the suitcase were photographs and negatives. Among the photographs was a photograph of the child.
On April 29, 2008, Giordano's bones and remains were examined by forensic anthropologists Christopher W. Rainwater and Benjamin J. Figura of the Forensic Anthropology Unit of the Department of Forensic Pathology at the Office of Chief Medical Examiner (OCME) in New York. Rainwater and Figura concluded that the remains "exhibit[ed] sharp force dismemberment trauma in the form of saw cuts." Rainwater examined the saw recovered from defendant's residence and used the saw to make experimental cuts in cow bones. When he compared the toolmark characteristics of the experimental cuts with the cuts on Giordano's bones, he concluded that the majority of the saw's characteristics were consistent with the saw marks on Giordano's bones, indicating that a similar saw was used to dismember Giordano.
In early May 2008, Detective Miller released the saw to Bradley Adams, Ph.D., of the OCME, for testing. The defense was not notified of the saw's release for testing. On May 8, 2008, Adams emailed Theresa Caragine of the OCME, requesting guidance on the procedure for testing the saw. Specifically, Adams noted that his investigation indicated that the New Jersey State Police had not dismantled the saw and removed the handle in order to test for blood and DNA under the handle. Adams asked if this should be done. The saw was then sent to the biology unit of the OCME and examined. The saw's handle was dismantled, and the entire saw and handle were tested for blood and DNA, with negative results. On June 17, 2008, the saw was delivered to the Forensic Anthropology Unit of the OCME for further testing.
On July 14, 2010, a defense expert, Peter R. DeForest of Forensic Consultants in Ardsley, New York, received the saw for his own assessment. DeForest also obtained saws from a retail store, the Home Depot, and the factory where the Buck Brothers saw was manufactured. He conducted microscopic examinations of the saws. He noted that the unused saws exhibited microscopic metal burrs on the edges of the saw teeth that are easily broken away with "slight" use of the saw. He also noted that each new exemplar saw contained a "lacquer-like" coating along the saw teeth, applied at the factory, that "is abraded away by the cutting action." Following his examinations and tests, DeForest found that "cutting a shallow kerf with a depth of a few millimeters in softwood profoundly alters the saw from its new condition." In examining the evidence saw, DeForest noted that the factory-applied lacquer-like coating on its teeth had been worn away. He also found that the black printed logo and lettering were smeared. DeForest assessed a photo taken by the OCME of the saw prior to the testing and observed that the photo suggested that "metallic burrs [were] present" on the teeth of the saw. He also noted that in the photo there was no smearing of the lettering on the side of the saw blade before the testing. DeForest concluded that the changes in the condition of the saw indicated that the saw was new before Rainwater tested it, and it therefore "could NOT have been used to saw through six bones and associated tissue."
Subsequently, defendant's work and home computers were seized and analyzed, pursuant to a search warrant. The examiner conducted a search of the hard drives for key words provided by the case agent. The examiner's search yielded indications that defendant had researched Delaware orphanages before abandoning his child on June 9, 2007, as well as data files such as Mapquest pictures of the area where the child was abandoned.
In November 2010, defendant moved to dismiss the indictment or, in the alternative, to suppress the saw recovered from defendant's home. That motion was denied.
While preparing for trial, between December 20 and 23, 2010, an assistant prosecutor discovered a record of Google searches for "martial arts lethal blows to the head" on defendant's work computer, which searches were performed during the week leading up to Giordano's death. On December 23, 2010, defendant and his counsel met with the Mercer County Prosecutor's staff to discuss pretrial stipulations and other matters. At the end of the meeting, the prosecutors gave defense counsel additional pages of discovery, which included a report of the computer searches. The State did not bring the assistant prosecutor's findings specifically to defendant's attention. Defense counsel discovered the assistant prosecutor's findings while reviewing the discovery papers. The same day, the State provided defense counsel with a disk containing an expert report and a copy of the hard drive.
The parties conferred with the judge on December 24, 2010, concerning this late-submitted discovery. The court instructed defense counsel to file a motion. Defendant found an expert who would "definitely need a couple of weeks" to review the disk and prepare a report.
On December 28, 2010, defendant filed a motion to suppress the computer evidence or, in the alternative, to adjourn the start of trial. On January 3, 2011, the judge heard and denied defendant's emergent motion to suppress evidence obtained from a search of defendant's computer but granted defendant's alternative request for a two-week adjournment of the trial to permit the defense an opportunity to obtain a forensic computer expert. Defendant's plea followed.
On appeal, defendant asserts that the judge erred by refusing to dismiss the indictment or to suppress the evidence related to the saw. In addition, defendant argues that the judge erred by refusing to suppress the computer evidence submitted to defendant on the eve of trial. He claims that the evidence was cumulative and "its late discovery was prejudicial."
We first address the issue of dismissal of the indictment for failure to preserve evidence relevant to a defense by restating basic principles of law that apply to evidence.
Prosecutors have a duty to preserve potentially exculpatory evidence on behalf of criminal defendants. California v. Trombetta, 467 U.S. 479, 486-87, 104 S. Ct. 2528, 2532-33, 81 L. Ed. 2d 413, 420-21 (1984). The State's duty to preserve evidence is limited to evidence that "might be expected to play a significant role in the suspect's defense. . . . [E]vidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 488-89, 104 S. Ct. at 2534-35, 81 L. Ed. 2d at 422-23. In Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), reh'g denied, 488 U.S. 1051, 109 S. Ct. 885, 102 L. Ed. 2d 1007 (1989), the Supreme Court expressly limited "the extent of the police's obligation to preserve evidence to reasonable bounds and confine[d] it to cases in which the police themselves by their conduct indicate[d] that the evidence could form a basis for exonerating the defendant." Id. at 58, 109 S. Ct. at 337, 102 L. Ed. 2d at 289.
In State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.), certif. denied, 101 N.J. 335 (1985), we enumerated the following factors that a court must consider in deciding an evidentiary motion to dismiss: 1) the bad faith or connivance by the State; 2) the materiality of the evidence to the defense; and 3) the prejudice to the defense. Ibid.
The first Hollander factor requires a trial court to consider "whether there was bad faith or connivance on the part of the government[.]" Ibid. The defendant bears the burden of proving bad faith. Youngblood, supra, 488 U . S . at 58, 109 S . Ct . at 337, 102 L . Ed . 2d at 289. We have suggested that "bad faith" might apply to destruction that occurred: "in a calculated effort to circumvent the disclosure requirements," as in Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963); when there was an "allegation of official animus towards" the defendant; or when there was "a conscious effort to suppress exculpatory evidence." State v . Serret, 198 N . J . Super . 21, 26 (App. Div. 1984) (quoting Trombetta, supra, 467 U . S . at 488, 104 S . Ct . at 2533, 81 L . Ed . 2d at 421-22).
In State v. Carter, 185 N.J. Super. 576 (App. Div. 1982), a case involving the suppression of exculpatory evidence, we concluded that even if actual intent to deceive was not present, "egregious carelessness" would warrant suppression. Id. at 580. We defined "egregious" as "conspicuously bad, flagrant." Id. at 581.
Here, the State's investigators allegedly altered an unused saw by performing tests that would support the State's case that the saw was used to cut the victim's bones. The trial court found that there was no evidence of bad faith on the part of the State; the State did not have a duty to preserve the evidence; and the State abided by standard procedures in handling the saw.
The trial judge correctly observed that the record is devoid of evidence of bad faith, as the term is commonly understood. There is no evidence of malice or intentional efforts to destroy exculpatory evidence. Furthermore, testing the saw on the cow bones was carried out according to standard procedures and practices. Hollander, supra, 201 N.J. Super. at 479 (finding good faith based on the fact that the evidence was destroyed in accord with "the State's normal practices"). However, according to defendant, the exculpatory nature of the saw, namely, its newness, should have been readily apparent to the State's investigators. Admittedly, defendant's expert did not confirm that the saw was new until after he cut bones with a new saw and observed the wear on the saw from cutting. But there were other indicia of newness, such as the original packaging on the saw when it was seized, as well as the absence of material on the saw that would link it to the dismemberment.
We note that in Serret, we held that the State's destruction of a Molotov cocktail was not prejudicial to the defendant because the Molotov cocktail had no apparent exculpatory value. Id. at 27. In that case, the defendant offered no argument that the Molotov cocktail bore any indications of his innocence; he merely challenged its destruction. In contrast, the newness of the saw in this case supports the inference that this particular saw was not used to dismember Giordano. We conclude that, although the State may have acted with some degree of carelessness in not fully appreciating the significance of the saw's alleged "newness," such carelessness was not egregious conduct amounting to bad faith and warranting suppression. We note that the State conceded that aside from cut similarities, there were no other indicia of use of this saw on the victim.
The second prong of the Hollander test requires a showing that "the evidence suppressed, lost or destroyed was sufficiently material to the defense." Hollander, supra, 201 N.J. Super. at 479. The State has an affirmative duty to preserve "evidence that might be expected to play a significant role in the suspect's defense." Trombetta, supra, 467 U.S. at 488, 104 S. Ct. at 2534, 81 L. Ed. 2d at 422.
[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.The New Jersey Supreme Court has held that "the materiality standard is not difficult to achieve." State v. Nelson, 155 N.J. 487, 500 (1998), cert. denied, 525 U.S. 1114, 119 S . Ct . 890, 142 L . Ed . 2d 788 (1999).
[United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985).]
To be material, the "evidence must both possess an exculpatory value that was apparent before [it] was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Trombetta, supra, 467 U.S. at 489, 104 S. Ct. at 2534, 81 L. Ed. 2d at 422; Hollander, supra, 201 N.J. Super. at 479-80; accord Serret, supra, 198 N.J. Super. at 27 ("[t]h[e] "materiality standard is met only when the evidence possesses an apparent exculpatory value and is of such a nature that comparable evidence could not be obtained by other means").
Here, according to defendant, the State destroyed the evidence that the saw was unused. The evidence was material to the defense and apparently exculpatory before its examination because an unused saw would indicate that defendant did not use that particular saw to cut up Giordano's body, despite the fact that defendant purchased the saw around the time of Giordano's disappearance and that it was the only saw in his possession at the time the police executed a search warrant of his home. According to defendant, no evidence other than the saw itself, or a representation of the saw that demonstrated its newness, would establish that the saw defendant purchased at the time of Giordano's disappearance and that was in his possession at the time of the search could not have been used to cut up Giordano's body.
The trial judge concluded that the saw could not be deemed evidentiary until the expert confirmed the saw could produce the marks left on the victim's remains. We disagree. The saw could be evidentiary before the expert tested it because defendant's purchase of the saw around the time of Giordano's disappearance, the fact of Giordano's dismemberment, and defendant's possession of the saw at the time the search warrant was executed made the saw relevant evidence, even before the expert compared the marks it left on cow bones to the marks on Giordano's bones.
The third Hollander factor is the degree of prejudice to defendant. State v. Washington, 165 N.J. Super. 149, 155 (App. Div. 1979). "Unfair prejudice" is defined as an undue tendency to suggest a decision on an improper basis. Fed. R. Evid. 403, Advisory Committee Notes to Federal Rules of Evidence; see also N.J.R.E. 403; U.S. v. Bailleaux, 685 F.2d 1105, 1111 n.2 (9th Cir. 1982) ("'unfair prejudice' means that the evidence not only has a significant impact on the defendant's case (as opposed to evidence which is essentially harmless) but that its admission results in some unfairness to the defendant because of its non-probative aspect").
In State v. Marshall, 123 N.J. 1 (1991), the Court found that there was no prejudice to the defendant when the State's expert partially destroyed evidence in a test because "the State did not rely at trial on evidence no longer available." Id . at 110. Rather, "[t]he State's proof was its expert's testimony [about] an examination of the [evidence] . . . . The expert's conclusions were subjected to cross-examination, and defendant's expert could have conducted the identical examination . . . ." Ibid . Here, by contrast, the saw would have been defendant's proof. Defendant's ability to submit evidence that the saw was new was terminated when the State used the saw to cut cow bones.
However, defendant could cross-examine the State's expert about the condition of the saw at the outset of the expert's test. The State photographed the saw prior to testing and preserved pictures of the "burrs" indicative of a new saw. Defendant had pre-testing pictures of the saw, which defendant's expert utilized and which could form the basis of defendant's argument that the saw was unused at the time of Giordano's dismemberment. Defendant's expert could also replicate the degradation of the saw using the same model of saw.
Additionally, in determining whether the defendant was prejudiced, our courts have considered whether destroyed evidence is wholly exculpatory. In Marshall, the Court held that the defendant was not prejudiced by the destruction of evidence when that evidence was not wholly exculpatory and "the jury would . . . have had to weigh that evidence in the context of substantial additional evidence of guilt." Id. at 110. Here, the saw was not wholly exculpatory because proof that the saw was new would not resolve the issue of the cause of Giordano's death, and there was substantial additional evidence of defendant's guilt that a jury would have had to weigh against the evidence pertaining to the saw. Most important, the fact that defendant did not use the tested saw does not preclude the possibility that defendant used a cutting device that was never found. Defendant cannot establish the third Hollander factor, prejudice. The judge did not abuse his discretion in denying defendant's motion to dismiss the indictment.
We reach the same result with regard motion to suppress the saw as evidence. Defendant moved to suppress admission of evidence of the saw on the grounds that the probative value of the proffered evidence was slight and there was a substantial risk of undue prejudice. Defendant also asserted that there was no evidence establishing a connection between the saw and the markings on the bones and that the introduction of the evidence would be prejudicial and confuse the jury. The court rejected defendant's arguments, finding the evidence to be highly probative and not outweighed by any trial integrity issues. The court concluded that the saw was "critical" to the State's case "because the jury [could] conclude it [was] similar to the kind of saw that was used to dismember the body of the victim."
Defendant characterizes the saw as having little relevance while having substantial prejudicial value. Defendant concludes that admission of the allegedly modified saw effectively shifted the burden to defendant of proving that the saw was not the one used to cut Giordano's bones, with the result that defendant was denied a fair trial.
Pursuant to N.J.R.E. 403, a judge, in his or her discretion, may exclude otherwise admissible evidence. To exclude such evidence, the judge must determine if the probative value of the evidence is outweighed by its prejudicial effect. The probative value of evidence is its "tendency . . . to establish the proposition that it is offered to prove." State v. Burr, 195 N.J. 119, 127 (2008) (internal quotations and citations omitted). Unfair prejudice is an undue tendency to suggest a decision on an improper basis. N.J.R.E. 403; see also Bailleaux, supra, 685 F.2d at 1111 n.2. "[R]eliability is the linchpin in determining admissibility" of evidence under a standard of fairness that is required by the Due Process Clause of the Fourteenth Amendment. Manson v. Brathwaite, 4 32 U.S. 98, 113-14, 97 S. Ct. 2243, 2252-53, 53 L. Ed. 2d 140, 153-54. (1977). If crucial inculpatory evidence is alleged to have been derived from unreliable sources, due process interests are at risk. See State v. Hurd, 86 N.J. 525, 547 (1981).
The judge acted within his discretion in determining that the saw was admissible under the N.J.R.E. 403 balancing test. The judge explained that the evidence was relevant because the State's expert opined that the experimental cuts on cow bones were similar to the cuts on the victim's remains. Because defendant would have had the opportunity to present his argument about the saw's newness to the jury, the relevance of the similarity in markings was not substantially outweighed by any prejudice defendant would have suffered as a result of the admission of the saw, which defendant claims could not have been involved in victim's dismemberment. The jury would be in a position to properly evaluate and weigh the saw evidence. The trial court properly denied defendant's motion to suppress the saw evidence.
Finally, defendant urges that the judge erred by failing to suppress the computer evidence the State produced on the eve of trial.
The rules of discovery are "designed to accomplish fairness." State v. Bellamy, 329 N.J. Super. 371, 376 (App. Div. 2000) (quoting State v. Kearney, 109 N.J. Super. 502, 505 (Law Div. 1970)). A defendant is "entitled to know the State's case against him within reasonable time to permit the preparation of a defense." Bellamy, supra, 329 N.J. Super. at 376. Courts have upheld the admissibility of late-discovered evidence or testimony when there is no evidence of the prosecutor's bad faith. See, e.g., State v. Zola, 112 N . J . 384, 418-19 (1988).
Defendant's sole basis for claiming that the prosecutors did not act in good faith is his opinion that "it seems disturbing that the State would wait . . . until the eve of trial to seriously review the computer hard drive data . . . ." This is an insufficient factual basis to support the conclusion that the prosecutors acted in bad faith when they had discovered the Google search evidence shortly before the trial was scheduled to commence.
As to defendant's allegation that the prosecutors engaged in misconduct when they failed to timely disclose the evidence, the record does not support this conclusion. The evidence was discovered on December 20, 2010. A report was promptly prepared and provided to defense counsel on December 22, 2010. A second report, which was completed on December 21, 2010, was provided to the defense on December 23, 2010. A copy of the defendant's work computer's hard drive was provided to defendant on December 26, 2010.
Defendant, thereafter, retained an expert to review the hard drive, and the expert completed his preliminary research before January 3, 2011. Defendant has provided no support for his argument that the prosecutors acted in bad faith by withholding disclosure of evidence. In fact, at the time of the disclosure, defense counsel stated that he had "no reason to believe that the assistant prosecutors or even the detectives in this case knew of these [computer] searches prior to them [sic] divulging it to me." As defense counsel conceded, the series of events concerning discovery and disclosure of the Google search evidence indicates that the prosecutors complied with their obligation to timely disclose evidence to defendant.
Most critical to the analysis is that the judge adjourned the trial to allow defendant to retain an expert to address these issues. When a defendant receives discovery without sufficient time to investigate and prepare a defense, the court has discretion to grant an adjournment. Bellamy, supra, 329 N.J. Super. at 378; State v. Smith, 66 N.J. Super. 465, 468 (App. Div. 1961), aff'd, 36 N.J. 307 (1962). In fact, "when balancing a short delay in the start of trial against defendant's legitimate ability to present a viable defense," this court has recognized that "the integrity of the criminal process must prevail over the administrative disruption." Bellamy, supra, 329 N.J. Super. at 378 (citing State v. Middleton, 299 N.J. Super. 22, 33 (App. Div. 1997)). At the same time, even an intentional delay in complying with the discovery rules does not require suppression of the evidence when a less drastic remedy is available. When an adjournment of the trial will avoid the risk of undue prejudice resulting from late discovery, courts should choose that option rather than suppression. See State v. Utsch, 184 N.J. Super. 575, 578 (App. Div. 1982) (affirming trial judge's decision to adjourn a case rather than suppress late-discovered evidence). The trial judge's grant of an adjournment was proper because the adjournment provided defendant the opportunity to examine the evidence and prepare a defense.
Defendant also contends that the Google search evidence should not have been admitted because it was cumulative and prejudicial. Specifically, defendant argues that the Google searches contributed little to the State's case against him while having "a significant impact on the defendant's case[,] . . . result[ing] in some unfairness to the defendant because of its non-probative aspect." Bailleaux, supra, 685 F.2d at 1111 n.2. The State argues that the Google searches were highly relevant and highly probative to the issue of defendant's state of mind because those searches established that defendant acted with premeditation. The State further contends that it had no other evidence of premeditation. The State is correct that this evidence was probative and not cumulative. We perceive of no abuse of discretion, and the judge did not err in denying the motion to suppress.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION