STATE OF NEW JERSEY v. BARRY DEANS

 
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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
 
(NOTE: The status of this decision is Unpublished.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1909-08T4F1909-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

BARRY DEANS,

Defendant-Respondent.

______________________________

 

Submitted April 27, 2009 - Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-02-00070.

Thomas S. Ferguson, Warren County Prosecutor, attorney for appellant (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (John A. Albright, Designated Counsel, of counsel and on the brief).

PER CURIAM

Plaintiff State of New Jersey appeals from the November 13, 2008 order denying its motion for reconsideration of the September 22, 2008 order granting defendant Barry Deans' motion to dismiss an indictment for third-degree burglary pursuant to N.J.S.A. 2C:18-2. The State contends that the dismissal was procedurally improper, and that it presented sufficient evidence to the grand jury to withstand dismissal. Because we conclude that the State presented some evidence as to each element of the alleged crime, we reverse.

The State presented a one-count indictment against defendant for third-degree burglary stemming from his alleged break-in at the Phillipsburg Mall. Raymond McDonald, a security officer at the mall, testified before the grand jury that on October 10, 2007, at approximately 1:50 a.m. when the mall was closed to the public, he saw a black male wearing a long-sleeve shirt and blue jeans inside the mall. McDonald called the Warren County Communication Center, which dispatched police officers to the mall. While on the phone with the dispatcher, McDonald lost sight of the individual. He headed in the direction the individual went and discovered that the locked entrance doors to the mall had been pried open. Upon exiting the doors, he encountered two police officers, who had the individual in custody. McDonald identified defendant as the individual he had seen inside the mall.

Detective Scott Robb of the Pohatcong Township Police Department testified before the grand jury that when he arrived at the mall, Sergeant Francesco Pagano and Lieutenant Dean McBride were already there, and Pagano's vehicle was directly behind a silver BMW station wagon. According to Robb, Pagano told him that when Pagano arrived at the mall, he saw the BMW and pulled it over. Defendant was the driver and said he was there to meet a girl. Shortly after stopping defendant, McDonald came out of the mall and identified defendant as the individual he had seen inside the mall. Robb continued that Pagano said he then went to the BMW, noticed papers in the bush area outside the right side of the vehicle, and picked up the papers, which were Mapquest directions from a residence in New York to different malls in New Jersey.

Robb also testified that he "processed" defendant's vehicle at the scene and recovered from inside the BMW defendant's cell phone, two GPS units, three black gloves, a black and yellow pry bar with a sticker, a piece of sticker of shavings from a pry bar, a plaid bag, 14-inch black and yellow bolt cutters, a 24-inch wrecking bar, and black and tan gloves. From outside the BMW, he recovered the Mapquest directions and sticker shavings from the pry bar, that were found on the pried-open mall entrance door. Robb also took photos at the scene.

Robb continued that defendant was taken to police headquarters and interviewed. According to Robb, defendant admitted that he broke into the mall, intending to break into soda machines, and that defendant also "pinpointed that he breaks into certain machines . . . [that] have a Plexiglas front." Robb indicated that there were two such soda machines in the mall, one of which could been seen from the pried-open entrance door. Based on McDonald's and Robb's testimony, the grand jury indicted defendant on the burglary charge.

On June 19, 2008, a State grand jury returned a seven-count indictment against Pagano for perjury, falsifying or tampering with public records, and official misconduct in an unrelated matter, State v. Orion Gray, Indictment No. 07-05-200-I. The indictment stemmed from evidence recovered by Pagano after an alleged consent search of the vehicle in that case and other items allegedly recovered in plain view. The search revealed a handgun inside the vehicle. The State dismissed the Gray indictment. Upon learning of the disposition in Gray, defendant's counsel filed a motion to suppress evidence seized by Pagano in this case. Defense counsel later wrote to the judge requesting dismissal of the indictment as well.

The motion judge held a hearing on defendant's motions, at which McDonald and Robb testified. Pagano invoked his Fifth Amendment right and did not testify. McDonald's motion testimony was consistent with his testimony before the grand jury. Robb's testimony was also similar; however, it differed in significant ways. For example, Robb testified that Pagano, not Robb, initially searched defendant's vehicle, that Pagano searched the vehicle pursuant to a consent to search he allegedly obtained from defendant, that Pagano was the officer found the pry bar, glove, burglary tools and Mapquest directions, and that the items seized from inside the vehicle were in plain view.

During the motion hearing, the prosecutor stated that the State was not going to use any of the consent-to-search information that Pagano had provided, or the plain view justifications raised by Pagano.

In a written decision, the judge found that the because the State decided not to rely on any evidence generated by Pagano, it removed any evidence which the grand jury may have used to indict defendant. The judge concluded that Robb's jury testimony was "based in its entirety upon [] Pagano's description of the stop and arrest[,] and that this evidence "is so flawed that it . . . should not be allowed to stand as the basis for the indictment[.]" The judge dismissed the indictment, stating that the State could seek a new indictment not based on any evidence derived from Pagano's involvement.

The State filed a motion for reconsideration, which the judge denied. The judge concluded that "evidence should be confident, And if the prosecution decides not to use that evidence because it's been compromised than that indictment is fast healed. It has no effect . . . I don't think you can indict somebody and then disqualify all that evidence." This appeal followed.

I.

The State first contends that the judge's dismissal of the indictment was procedurally improper because defendant did not file a written motion to dismiss. We disagree.

A motion "made during a trial or hearing, shall be by notice of motion in writing, unless the court permits it to be made orally." R. 1:6-2(a) (emphasis added). Although defendant did not file a formal written motion to dismiss the indictment, defense counsel requested such relief in a letter to the judge, placing the State simultaneously on notice of the application. The State also had full opportunity to address the issue on its reconsideration motion.

Further, Rule 1:1-2 permits the court to relax or dispense with a Rule if adherence would result in an injustice. Rule 1:1-2 applies to Rule 1:6-2. State v. Maccioli, 110 N.J. Super. 352, 359 (Law Div. 1970) (finding no error was committed in considering the State's motion to revoke bail that failed to satisfy certain aspects of Rule 1:6-2). Accordingly, we are satisfied that there were no procedural improprieties here.

II.

The State next contends that there was sufficient evidence other than that based on Pagano warranting denial of defendant's motion to dismiss the indictment. We agree.

"Whether an indictment should be dismissed or quashed lies within the discretion of the trial court." State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 18 (1984). The trial court's discretion should only be exercised on the "'clearest and plainest ground'" and only when the indictment is "'palpably defective.'" Id. at 18-19 (quoting State v. Weleck, 10 N.J. 355, 364 (1952)); see also State v. Perry, 124 N.J. 128, 168-69 (1991). The trial court's decision should not be overturned unless the court's discretion was "clearly abused." State v. Hogan, 144 N.J. 216, 229 (1996).

"[I]ndictments are presumed valid and should be dismissed only upon the clearest and plainest ground and only if palpably defective." State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.) (citing New Jersey Trade Waste Ass'n, supra, 96 N.J. at 18-19), certif. denied, 151 N.J. 77 (1997); Weleck, supra, 10 N.J. at 364. "As long as an indictment alleges all of the essential facts of a crime, the charge is deemed sufficiently stated." Ibid. (citing New Jersey Trade Waste Ass'n, supra, 96 N.J. at 19). Also, no matter how sufficient an indictment appears on its face "it cannot stand if the State failed to present the grand jury with at least 'some evidence' as to each element of its prima facie case. The quantum of evidence, though, need not be great." Ibid. (citing State v. Bennett, 194 N.J. Super. 231, 234 (App. Div. 1984) (emphasis added), certif. denied, 101 N.J. 224 (1985); see also State v. Hogan, 144 N.J. 216, 228-29 (1996). All the evidence and all inferences therefrom must be viewed in a light most favorable to the State, and the "evidence need not be sufficient for conviction, but merely sufficient that there is prima facie evidence to establish that a crime has been committed." Ibid. (quoting New Jersey Trade Waste Ass'n, supra, 96 N.J. at 27); see also State v. Morrison, 188 N.J. 2, 13 (2006); State v. Fleischman, 383 N.J. Super. 396, 399 (App. Div. 2006), aff'd, 189 N.J. 539 (2007).

A "grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.'" State v. Grant, 361 N.J. Super. 349, 357 (App. Div. 2003) (quoting United States v. Williams, 504 U.S. 36, 51, 112 S. Ct. 1735, 1744, 118 L. Ed. 2d 352, 368 (1992)). "Consistent with that view we have upheld the validity of indictments by grand juries presented with a variety of evidence that would have been inadmissible at trial." Ibid. The grand jury's "power of inquiry is not bound by the rules of evidence." State v. Hogan, 336 N.J. Super. 319, 338 (App. Div.), certif. denied, 167 N.J. 635 (2001); see also State v. Holsten, 223 N.J. Super. 578, 585-86 (App. Div. 1988) (permitting hearsay and leading questions); State v. Scherzer, 301 N.J. Super. 363, 428-29 (App. Div.) (admitting prior bad acts), certif. denied, 151 N.J. 466 (1997).

Here, defendant was charged with burglary. A person is guilty of burglary if:

[W]ith the purpose to commit an offense therein he . . . [e]nters a structure . . . unless the structure was at the time open to the public or the actor is licensed or privileged to enter; or [s]urreptitiously remains in a . . . structure . . . knowing that he is not licensed or privileged to do so."

[N.J.S.A. 2C:18-2a(1) and (2).]

Based upon our careful review of the record, we are satisfied that there was "at least some evidence" before the grand jury, absent evidence derived from Pagano, to establish each element of burglary. McDonald identified defendant as the individual he saw in the mall at a time it was not open to the public. Defendant admitted to Robb that he broke into the mall with the purpose to break into soda machines therein. This evidence, in and of itself, without any reference to Pagano, was sufficient to indict defendant for burglary.

Reversed.

 

The interview was videotaped. The videotape and a transcript were placed in evidence and reviewed by the motion judge. The judge also admitted and reviewed two CD's from a mobile vision recorder in Pagano's police vehicle, which recorded what occurred at the scene. None of these exhibits have not been submitted to us.

We need not recount the testimony of other police officers who were at the scene. They did not testify before the grand jury and, therefore, their testimony is irrelevant to the issue here.

U.S. Const. amend V.

We decline to address defendant's argument about the prosecutor's failure to follow the procedures set forth in Rule 3:6-3 to assure the grand jury's impartiality. Defendant did not raise this argument below and it does not go to the jurisdiction of the trial court or concern matters of sufficient public interest, particularly given the sparse and uninformative record presented to us on the issue. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)); see also State v. Arthur, 184 N.J. 307, 326 (2005).

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A-1909-08T4

July 8, 2009