NOT FOR PUBLICATION WITHOUT APPROVAL

FROM THE COMMITTEE ON OPINIONS

____________________________________
:
THE STATE OF NEW JERSEY, : SUPERIOR COURT OF NEW JERSEY
: CRIMINAL DIVISION-MONMOUTH
: COUNTY
Plaintiff, :
:
v. :
: OPINION
:
PAUL CANEIRO :
:
Defendant. :
____________________________________:

Decided: December 3, 2018

Christopher Decker, Assistant Prosecutor, attorney for plaintiff (Christopher J. Gramiccioni,

Monmouth County Prosecutor, attorneys);

Mitchell J. Ansell, for defendant Paul Caneiro (Ansell, Grimm & Aaron, P.C., attorneys).

THORNTON, A.J.S.C.

I.

This matter comes before the court on the parties’ joint application on short notice, to seal

the Affidavit of Probable Cause filed in support of Complaint-Warrant 1304-W-2018-00058 that

charged defendant with murder and other charges in connection with the quadruple homicide of his

brother, sister in law, niece and nephew. Because the parties established good cause that disclosure,

at this juncture, would harm the investigation and prosecution of defendant and threaten the

integrity of the proceedings and defendant’s right to a fair trial, the motion is granted in part. The

Affidavit of Probable Cause will be sealed only temporarily pursuant to R. 1:38-11(e), until February

21, 2019 or the date upon which Grand Jury proceedings are completed; whichever is sooner.

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II.

The relevant facts are undisputed. On November 21, 2018, defendant was charged with

aggravated arson in connection with a fire at his own home in Ocean Township. First responders

were called to his home in the early hours of November 20th, shortly before the bodies of his brother,

sister in law, niece and nephew were discovered at their own home in Colts Neck.

On November 29, 2018, defendant was charged with murder in connection with the deaths

of his family members. On the day the murder charges were filed, Monmouth County Prosecutor

Christopher Gramiccioni held a press conference to “update the public” on the developments. This

was the third press briefing by Mr. Gramiccioni in the eight (8) days since defendant was originally

arrested on November 21st.

During the November 29th press conference, Mr. Gramiccioni provided information on the

motive for the crimes and the approximate times they were committed. He revealed the victims were

killed by both gun shots and stabbing wounds. He also inferred that defendant carried evidence in

his car from the scene in Colts Neck to his home in Ocean Township, where he attempted to destroy

it. Finally, he commented that the Caneiro homicide was the most “brutal” case he has seen in his

career, one that he would have “certified as a capital case” if the death penalty were an option in New

Jersey.

The horrific events of this case have captured local and national media attention. Two of the

State’s largest newspapers, the Star Ledger and the Asbury Park Press, have followed the case closely.

In addition, the New York Times, New York Post, Wall Street Journal (WSJ), and Washington Post

have provided coverage. Finally, broadcast media, including CNN, and local affiliates for ABC, CBS

and NBC have provided coverage.

On November 27th, the parties presented a consent order to seal a wide range of documents

including evidence to be marked in an anticipated detention hearing, and all attachments to be filed
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with motions during the course of the case. This court advised the parties that such a broad sealing

order was not permitted by R. 1:38 which required the court to make a judicial determination on “good

cause.” More importantly, the rule requires a judge to review each document before a decision to seal

is made.

The court set a briefing schedule and indicated argument would be heard and a decision could

be made on short notice before the anticipated detention hearing of November 30 th. On November

28th, a day before additional charges were filed against defendant, the parties withdrew their application

to seal based on anticipated “developments”.

On November 29th, the State filed a Complaint-Warrant 1304-W-2018-00058 in eCourts.

However, for reasons not apparent to the court, the Affidavit of Probable Cause, a “[d]escription of

relevant facts and circumstances which support probable cause” was omitted, with a notation that

indicated “See Attached.” While the “attached” document was not filed in Superior Court, it was

presented to the Colts Neck Municipal Court administrator, who apparently relied on the three page

affidavit to find probable cause to issue the Complaint-Warrant. She properly included the affidavit

with her file.

On the day the murder complaint was filed, the WSJ requested and received a copy of the

Complaint-Warrant, including the Affidavit of Probable Cause, directly from the Colts Neck

Municipal Court. Media representatives who requested the Complaint-Warrant from the Superior

Court did not receive the Affidavit of Probable Cause because it was not a “court record” in the

possession of the Superior Court.

The court reviewed the Affidavit of Probable Cause in camera. The document consists of

approximately sixteen (16) paragraphs that include an incredible amount of detail regarding the State’s

investigation thus far. In support of the Complaint-Warrant, the State relied on evidence secured by

traditional law enforcement tools. The document identifies witnesses who were interviewed and

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assisted in the investigation, and provides details of a great amount of evidence, where it was located

and how it was secured.

III.

Defendant argues that “there would be resultant prejudice” if the affidavit is made available

to the public. He reasons that the nature of the information included in the affidavit “has the capacity

to inflame and prejudice the community against [him].” He relies on Gannett Co. v. DePasquale, 443

U.S. 368, 378 (1979) for the proposition that disclosure of the affidavit “could influence public opinion

against [him] and inform potential jurors of inculpatory information wholly inadmissible at the actual

trial.” Finally, even though he has not even been indicted, he argues that no alternatives are available

to ensure he receives a fair trial, and that a sealing of the affidavit is necessary because the passage of

time between pretrial publicity and jury selection will not abate the prejudice to the jury pool. During

oral argument, defense counsel argued that at this early stage, only days after his client was charged,

the defense has not had an opportunity to begin an investigation and question the veracity of the

State’s evidence. They reason that if the details included in the Affidavit of Probable Cause are made

public at this junction, they have no way of providing an alternative theory and the inflammatory

nature of the evidence will be prejudicial to defendant.

While the State failed to submit a written brief in support of the motion, they indicated in oral

argument that certain witnesses were identified in the Affidavit of Probable Cause. The State reasons

that disclosure at this stage could lead to harassment of witnesses or interference with the investigation

if someone revealed the identity of a witness, or if someone other than defendant’s investigators

attempted to contact a witness. In addition, the lead prosecutor argued that Mr. Gramiccioni took

great care to only reveal general information so as not to encourage the type of pretrial publicity that

could threaten the prosecution.

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 Because the Asbury Park Press expressed an interest in obtaining the Affidavit of Probable

Cause after hours on Friday evening, this court provided the newspaper with notice of this application

and a right to be heard. They declined to participate.

IV.

The New Jersey Judiciary has adopted a strong policy of open access to court records. R.

1:38-1. This policy is grounded in both the common law and the First Amendment. Spinks v.

Township of Clinton, 402 N.J. Super. 454, 460 (App. Div. 2008) (citing Hammock by Hammock v.

Hoffman Laroche, 142 N.J. 356, 375 (1995)). To that end, any exemptions enumerated by the rule

are to be “narrowly construed.” R. 1:38-1

Records may be excluded from public access for “good cause,” which may be established by

a showing that: 1) “disclosure is likely to cause a clearly defined and serious injury;” and 2) the

interest in privacy “substantially outweighs the presumption of open-access.” Pressler & Verniero,

Current N.J. Court Rules, cmt. on R. 1:38-11. Persons seeking to rebut the presumption of access

have the burden of proving by a preponderance of the evidence that the interest in secrecy

outweighs the presumption of public access. Hammock by Hammock, 142 N.J. at 375-376. Each

document must be separately examined, and “where part but not all of a document is determined to

be entitled to secrecy, the document may be redacted or edited to keep protective orders as

minimally intrusive on the right to access as possible.” Pressler & Verniero, cmt. on R. 1:38-11. If

issues of “health, safety and consumer fraud are not involved,” the balance is significantly weighted

for access. Id.

Court records are broadly defined to include “pleadings…and their respective attachments.”

R. 1:38-2. Court records excluded from public access include “[r]ecords created or maintained by

the Pretrial Services Program” or Complaint-Warrants temporarily sealed for good cause. R. 1:38-3;

R. 1:38-11(e).

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 The Complaint-Warrant (CDR-2) is a court record open for public inspection and copying.

The Affidavit of Probable Cause is an attachment that is part of the Complaint-Warrant. See R.

1:38-11(e) which indicates “the Complaint-Warrant (CDR-2) includes information contained within

and attached to the Complaint-Warrant (CDR-2).

In State v. Dickerson, 232 N.J. 2, 24 (2018), the Court reiterated the fundamental principle

that probable cause, “a well-grounded suspicion that a crime has been committed” and the accused

committed it, is essential to the issuance of a complaint. R. 3:2-1 emphasizes the importance of the

Affidavit of Probable Cause to the issuance of a complaint, and indicates that the complaint shall

not issue without a “certification or on oath before” a judge or authorized court official.

V.

As an initial matter, there should be no question that the Affidavit of Probable Cause is a

“court record” subject to inspection. The parties’ reliance on the Chief Justice’s 2016 Notice to the

Bar is misplaced. Recent amendments to R. 1:38 make it very clear that the Complaint-Warrant is

not a record “created or maintained by the Pretrial Services Program.” More importantly, if the

Complaint-Warrant was excluded from public access, the amendment to R. 1:38-11(e) that permits a

temporary sealing of the Complaint-Warrant would be unnecessary.

After careful review of the Affidavit of Probable Cause, good cause exists to seal the

document until February 21, 2019 or the date upon which Grand Jury proceedings are completed;

whichever is sooner. The State objects to disclosure, because many details included in the affidavit,

if disclosed, could threaten its investigation and prosecution. However, the State admits that the

detail provided probably was not necessary to secure issuance of the complaint. Likewise, defendant

has established good cause to seal the affidavit at this juncture. Disclosure of many of the details

included in the affidavit would most certainly not be favorable to him. Disclosure of these facts, less

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than a week after he was charged, would leave him without a mechanism to combat the tide of

negative publicity that would most certainly follow.

No reasonable alternatives exist other than sealing the document on a temporary basis.

Redaction of the objectionable facts would yield only about twenty percent of the affidavit that

could be disclosed.

VI.

For the reasons stated above, the motion is granted in part.