NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Following a jury trial, defendant Davon Cody was convicted of second-degree robbery, N.J.S.A. 2C:15-1a(1). The charge stemmed from the robbery of a young woman in a shopping mall parking lot. Because the victim could not identify her attackers, the State's case depended on defendant's alleged confession to the police and the testimony of co-defendant D.P., a juvenile who had been adjudicated delinquent for the same crime.

On appeal, defendant raises the following contentions:

We disagree with defendant's contentions in Points I and IV, but agree with his contentions in Point II and III and reverse and remand for a new trial.

I.

After receiving his Miranda1 rights at police headquarters, defendant allegedly gave an audio- and video-taped confession. The police subsequently discovered that the confession was not recorded because the video recorder was accidentally set on the wrong channel and recorded the news rather than the interview, and the audio recording was transferred to a computer and then inadvertently erased during a computer software upgrade. The two interviewing detectives took no notes during the interview; however, after discovering what happened to the recordings, one of the detectives wrote a report approximately two weeks after the interview that included a summary of defendant's alleged confession.

Following a Rule 104 hearing, the trial judge permitted the detective to testify at trial about defendant's alleged confession. The judge found the police may have been negligent in failing to preserve the recordings, but there was no evidence of bad faith, conscious wrongdoing, or dishonest purpose or objective.

Before the detective testified, the judge issued a cautionary instruction pursuant to Rule 3:17(e) about defendant's alleged confession, and a final instruction that mirrored Model Jury Charge (Criminal), Statements of Defendants, A. Charge to be Given When State Offers as Direct Evidence of Defendant's Guilt (Approved 11/7/05). Defendant finds no fault with these instructions; rather, he contends in Point I that the State's failure to preserve the recordings violated Rule 3:17 and his due process right to present a complete defense.

"A trial court's ruling on the admissibility of evidence is `subject to limited appellate scrutiny.'" State v. Buckley, ___ N.J. ___, ___ (2013) (slip op. at 16) (quoting State v. Buda, 195 N.J. 278, 294 (2008)). "We afford considerable deference to a trial court's findings based on the testimony of witnesses." Ibid. "A trial court's `interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Id. at 17 (quoting State v. Handy, 206 N.J. 39, 45 (2011); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). "To the extent that the trial court's ruling constituted an interpretation of [the law], we review it de novo." Ibid. (citing State v. Mann, 203 N.J. 328, 337 (2010)).

Rule 3:17(a) requires that "all custodial interrogations conducted in a place of detention must be electronically recorded when the person being interrogated is charged with ... robbery."2 However, failure to record a custodial interrogation alone does not require suppression of a defendant's statement. State v. Cook, 179 N.J. 533, 559-60 (2004). Failure to record a custodial interrogation "shall be a factor for consideration by the trial court in determining the admissibility of a statement, and by the jury in determining whether the statement was made, and if so, what weight, if any, to give to the statement." R. 3:17(d).

Where there has been suppression, loss or destruction of physical evidence in a criminal case, the court must consider three factors in determining if a due process violation occurred: "(1) whether there was bad faith or connivance on the part of the government; (2) whether the evidence suppressed, lost or destroyed was sufficiently material to the defense; and (3) whether defendant was prejudiced by the loss or destruction of the evidence." State v. Hollander, 201 N.J.Super. 453, 479 (App. Div.) (citations omitted), certif. denied, 101 N.J. 335 (1985); see also State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L. Ed. 2d 788 (1999).

The defendant bears the burden of proving the first Hollander factor. Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S.Ct. 1200, 1202, 157 L. Ed. 2d 1060, 1066 (2004). To establish bad faith,

This court has suggested that "bad faith" might apply to loss or destruction of evidence 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)), or when there was an "allegation of official animus towards" the defendant or "a conscious effort to suppress exculpatory evidence." State v. Serret, 198 N.J.Super. 21, 26 (App. Div. 1984) (quoting California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2533, 81 L. Ed. 2d 413, 421-22 (1984)), certif. denied, 101 N.J. 217 (1985).

The second Hollander factor requires a showing that "the evidence suppressed, lost or destroyed was sufficiently material to the defense." Hollander, supra, 201 N.J. Super. at 479. 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. Thus, the defendant must show that the evidence withheld was material exculpatory evidence. State v. Mustaro, 411 N.J.Super. 91, 102 (App. Div. 2009). "Alternatively, if the defendant cannot establish that the now lost evidence had apparent exculpatory value and can show only that the evidence was potentially useful or exculpatory, then the defendant can show a due process violation by establishing that the evidence was destroyed in bad faith." Id. at 103 (citations and internal quotation marks omitted).

The third Hollander factor requires a showing that the defendant was prejudiced by the loss or destruction of the evidence. Hollander, supra, 201 N.J. Super. at 479. "The omitted evidence must be evaluated in the context of the entire record." State v. Washington, 165 N.J.Super. 149, 156 (App. Div. 1979).

Here, there was no evidence that the police acted in bad faith, or intentionally, or acted with egregious carelessness, official animus towards defendant, a calculated effort to circumvent the disclosure requirements, or a conscious effort to suppress exculpatory evidence. The police merely acted negligently with respect to the recordings. Negligence, however, provides no basis for reversal. Id. at 155-56.

Further, defendant has not shown that the lost evidence was material to his defense, much less exculpatory. There was no showing that the putative evidence had exculpatory value, and defendant offered no proof that the outcome of the trial would have been different. Accordingly, the judge properly admitted the detective's testimony about defendant's confession.

II.

The judge gave the jury a final instruction that mirrored Model Jury Charge (Criminal), Statements of Defendants, A. Charge to be Given When State Offers as Direct Evidence of Defendant's Guilt (Approved 11/7/05). During deliberations, the jury requested a re-back of this instruction. The judge properly re-read the instruction, but then added the following comments:

Defendant contends for the first time on appeal in Point II that these comments were factually incorrect and highly prejudicial, consequently depriving him of due process and a fair trial. We review this contention under the plain error standard of review. R. 2:10-2; State v. Bunch, 180 N.J. 534, 541 (2004) We must determine whether legal impropriety in the jury charge prejudicially affected defendant's substantial rights and is "sufficiently grievous to justify notice to the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L. Ed. 2d 797 (1970).

Model Jury Charge (Criminal), Statements of Defendants, A. Charge to be Given When State Offers as Direct Evidence of Defendant's Guilt (Approved 11/7/05) emphasized to the jurors that they could find the failure of the police to record defendant's statement to mean that defendant in fact never made any statement. The judge's second comment erroneously advised the jury that a statement by defendant in fact was made and recorded. The judge's first comment erroneously advised the jury that the fact that the statement was not recorded did not mean is was inadmissible as a matter of law. This expressly violated the clear injunction in N.J.R.E. 104(c), which provides:

We find that these two comments had the clear capacity to produce an unjust result. Although this error alone is sufficient to warrant reversal of defendant's conviction and a remand for a new trial, we will, nevertheless, in the interest of clarity, address the second legally viable basis for reversal raised by defendant in Pont III.

III.

Defendant contends for the first time on appeal in Point III that the judge erred in admitting evidence that D.P. had been adjudicated delinquent of the same robbery without giving Model Jury Charge (Criminal), "Testimony of a Cooperating Co-Defendant or Witness" (2006). We agree.

D.P. was sentenced to probation for his delinquency adjudication and had an open violation of probation at the time of trial. He was involuntarily brought into court by way of a bench warrant. Defendant used D.P.'s testimony from the juvenile hearing to impeach him. In his final instructions, the judge gave Model Jury Charge (Criminal), "Credibility of Witness — Prior Adjudication of Delinquency" (2004).

Evidence of a prior adjudication of delinquency is admissible for the limited purpose of exposing a witness's potential bias, prejudice or interest of a witness. State v. Hare, 139 N.J.Super. 150, 156 (App. Div.), certif. denied, 70 N.J. 525 (1976). Thus, there was no error in admitting D.P's testimony. However, where, such as here, the witness is a co-defendant and his or her testimony is the only real evidence connecting the defendant to the crime, the court must give Model Jury Charge (Criminal), "Testimony of a Cooperating Co-Defendant or Witness" (2006). State v. Murphy, 376 N.J.Super. 114, 122 (App. Div. 2005) (citing State v. Stefanelli, 78 N.J. 418, 434 (1979)). The judge's failure to do so in this case constituted plain error requiring a reversal and remand for a new trial.

IV.

Finally, to dispel any implication of error and as a means of guiding the trial court on retrial, we will briefly comment on the trial judge's decision to address the jury, sua sponte, concerning the victim's emotional state and general demeanor at the time she described her attacker. Although prudence favors judicial restraint under these circumstances, we discern no legal basis to conclude the judge committed reversible error.

At trial, the victim could not recall the descriptions of her assailants. However, she had given Lisa Locorriere a description immediately after the attack. Before Locorriere testified, the judge sua sponte commented to the jury that the excited utterance exception to the hearsay rule applied to the description the victim gave to Locorriere. Defendant concedes that the victim's description to Locorriere was admissible pursuant to this exception, but contends for the first time on appeal in Point IV that the judge's instruction improperly bolstered the credibility of the victim's description.

While the judge's comment was unnecessary, it was not capable of producing an unjust result. In addition to Locorriere, two other witnesses testified about the assailants' descriptions. In addition, the judge was permitted to comment on the evidence so long as he clearly and fairly left for the jury's determination all factual issues and ultimate questions of guilt or innocence. State v. Ebron, 122 N.J.Super. 552, 558-59 (App. Div.), certif. denied, 63 N.J. 250 (1973). Here, the judge ultimately charged the jurors that they alone were the fact-finders and judges of witness credibility. Accordingly, there was no error, let alone plain error in the judge's comment.

V.

Because we reverse and remand this matter for a new trial, we need not address defendant's challenge to his sentence in Point V.

Reversed and remanded for a new trial.