A Rare Appellate Division Published Opinion After a Grant of Reconsideration | NJ Appellate Law Blog – NJ Appellate Lawyer Bruce D. Greenberg blogs about Appeals and Appellate Law Practice

State v. Morgan, ___ N.J. Super. ___ (App. Div. 2024). As discussed here, the Appellate Division issued a published opinion in this case. As a reminder, that ruling addressed “a question of first impression regarding when the State may be compelled to provide field and health reports of narcotics detection canines in accordance with the Supreme Court’s holding in Florida v. Harris, 568 U.S. 237 (2013).” The Law Division denied defendant discovery of records relating to a narcotic detection dog named “Jocko.” The Appellate Division reversed and remanded for further proceedings, finding that the records were “not per se irrelevant to reliability and probable cause determinations.”

Today, the court issued a new opinion, which reflects that the panel had granted reconsideration. The grant of reconsideration by the Appellate Division is quite rare. It is likely rarer still in the context of a published opinion. Nonetheless, this demonstrates (as does, perhaps among other examples, this decision) that the Appellate Division will correct itself when a correction is needed.

Both the original opinion and the new version issued today consume fourteen pages. All but the very end of the opinion remains unchanged. So does the bottom line result in the appeal. The conclusion of the decision, however, was re-written as follows:

Original version: “We remand for the trial court to consider the State’s motion to bar defendant’s expert on the merits using the Daubert standard adopted by our Supreme Court for criminal cases in State v. Olenowski, 253 N.J. 133, 151 (2023). If, after conducting a Daubert inquiry, the trial court finds Dr. Sagebiel’s expert opinion regarding the canine team’s reliability is admissible, then it shall order the State to produce all of Jocko’s disputed field and health records pursuant to Rule 3:13-3(b) in order to ‘advance the quest for truth’ and ensure our ‘goal of providing fair and just criminal trials.’ [State v. ] Scoles, 214 N.J. [236] at 252 [(2013)]. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.”

Today’s version: “We remand for the trial court to consider the State’s motion to bar defendant’s expert on the merits. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.”

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