THE STATE OF NEW JERSEY v. R.F

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4969-09T4

THE STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

R.F.,

Defendant-Respondent.

________________________________________________________________

December 15, 2010

Submitted on October 26, 2010 - Decided

Before Judges Graves and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 06-02-0191.

John L. Molinelli, Bergen County Prosecutor, attorney for appellant (Catherine A. Foddai, Senior Assistant Prosecutor, on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

In a five-count indictment filed on February 1, 2006, a Bergen County grand jury charged defendant R.F. with four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a); and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). More than a year later, on February 6, 2007, the State moved to amend the indictment to include an additional count of first-degree aggravated sexual assault that it claimed had been "true billed" by the grand jury but omitted from the filed indictment due to "an administrative error." Although the State acknowledged that the grand jury had been dismissed, it suggested that the grand jury clerk could sign "on behalf of the foreperson" to attest that the amended indictment was a true bill.1 Finding that the omission was caused by "an inadvertent ministerial error on behalf of either the grand jury or the Prosecutor's staff," the trial court determined that defendant had no notice of the additional charge and denied the motion.

A jury ultimately convicted defendant of all five counts, and the court imposed two consecutive and two concurrent sixteen-year prison terms with an eighty-five percent period of parole ineligibility. However, on May 15, 2009, this court determined that defendant was entitled to a new trial. State v. R.F., No. A-1604-07 (App. Div. May 15, 2009) (slip op. at 4).

Prior to retrial, on March 15, 2010, the State renewed its motion to amend the indictment to include the sixth charge. Defense counsel opposed the motion, noting that the grand jury clerk who the State claimed could "attest" to the true bill was not the clerk at the time of the grand jury deliberations she had merely "listened to the tapes." The court indicated it was not convinced "we should modify the functions of the grand jury even on . . . a ministerial act." Therefore, it determined that the proposed amendment would not be "presented as a count in this case unless there's a superseding indictment." The court entered an order denying the motion on May 10, 2010, and on June 25, 2010, we granted the State leave to appeal.

The State argues on appeal that "it is not a constitutional violation to amend an indictment to include a count true billed by the grand jury but accidentally omitted from the written document." Based on our review of the record and the applicable law, we affirm the trial court's order.

As a preliminary matter, we note that court rules must be read and interpreted in accordance with canons of statutory construction. State v. Clark, 191 N.J. 503, 508 (2007) (citing Wiese v. Dedhia, 188 N.J. 587, 592 (2006); First Resolution Inv. Corp. v. Seker, 171 N.J. 502, 511 (2002)). Thus, a reviewing court must first "examin[e] the plain language of a court rule and give the words their ordinary meaning." Ibid. Only where a rule contains ambiguous language that "lends itself to more than one plausible interpretation" may a court consider extrinsic materials. Ibid.

The plain language of Rule 3:7-4 states:

The court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits.

[R. 3:7-4.]

It is clear from an ordinary reading of the rule that it serves to allow minor technical changes and the addition of lesser-included offenses. However, "[a]n error in the indictment that goes to the substance of the offense cannot be corrected by amendment." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:7-4 (2011) (citing State v. Graham, 223 N.J. Super. 571 (App. Div.), certif. denied, 113 N.J. 323 (1988)).

In this case, the change requested by the State goes beyond an ordinary "amendment of form." Courts have permitted the State to make such modifications only where minor and non-prejudicial to the defendant. See State v. Pennington, 119 N.J. 547, 594-95 (1990) (allowing an amendment from "purposely and knowingly" to "purposely or knowingly"); State v. Witte, 13 N.J. 598, 605-07 (1953) (altering the time of commission where not an essential element of the offense), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954); State v. Middleton, 299 N.J. Super. 22, 34 (App. Div. 1997) (same); State v. Lopez, 276 N.J. Super. 296, 307-08 (App. Div.) (permitting the addition of a pistol and knife to an indictment already charging use of a deadly weapon), certif. denied, 139 N.J. 289 (1994); State v. J.S., 222 N.J. Super. 247, 257-58 (App. Div.) (granting amendment of "[a] specification of the particular intimate parts touched" in a sexual assault case), certif. denied, 111 N.J. 588-89 (1988). In contrast, courts have recognized that Rule 3:7-4 may not be used to add a separate and distinct offense to an indictment. See Witte, supra, 13 N.J. at 605 (noting that a substantive amendment would include "the introduction of a new and separate distinct offense not comprehended in the indictment returned by the grand jury"); J.C., supra, 222 N.J. Super. at 258 (acknowledging "the proscription of [Rule] 3:7-4 against charging another or different offense").

Here, however, the requested amendment neither adds a lesser included offense nor "correct[s] an error in form or the description of the crime intended to be charged." R. 3:7-4. Instead, the State seeks to add a separate count that was omitted from the indictment. The reasons for this omission are immaterial because the indictment itself, rather than a grand jury transcript, is the operative document to put defendant on notice of the charges against him. See State v. Porro, 152 N.J. Super. 179, 186 (App. Div. 1997) ("The function of an indictment is to serve as a pleading which specifies the particular crime charged so that defendant will have notice thereof and an opportunity to prepare his defense.").

In view of the foregoing, we conclude that the proposed amendment is one of substance rather than form. Accordingly, we affirm the trial court's denial of the State's motion to amend the indictment.

1 We note the State's proposal was contrary to Rule 3:7-3, which requires an indictment to be "endorsed as a true bill by the foreperson," not a clerk.