STATE OF NEW JERSEY v. ROBERT J. BRUSCHI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5518-03T55518-03T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT J. BRUSCHI,

Defendant-Appellant.

 

Argued: November 10, 2005 - Decided:

Before Judges Fall and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Number 03-04-0956-I.

Christopher Bruschi argued the cause for appellant.

Brandy Galler, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After entering a guilty plea to a charge of fourth-degree aggravated assault, pointing a firearm at or in the direction of William Marrerro on December 27, 2002, contrary to N.J.S.A. 2C:12-1b(4), defendant Robert J. Bruschi appeals from denial of his pre-sentencing motion to dismiss counts one and two of Bergen County Indictment Number S-0956-03. We affirm.

The indictment charged defendant with fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count one); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count three).

The charges against defendant arose from an incident occurring on December 27, 2002, in the second-floor apartment of his sister at 228 Main Street, Cliffside Park. Defendant, a retired police officer, was residing temporarily with his sister. William Marrero, Thomas Tufaro, William Esola and Jeffrey Spurlock were dispatched by General Sewer Company to 228 Main Street to perform requested maintenance on the building. When they arrived, Andre Lam, the owner of High Spirits liquor store located on the first floor, let the men into the building to perform the work.

The men entered the building and ascended to the second floor hallway where there was a window that provided access to the roof. While they were standing in the hallway and opening the window, defendant was inside his sister's apartment, the only residential apartment in the building. Spurlock went through the window and onto the roof; the other three men remained in the hallway. After hearing someone yell, defendant went to the door of the apartment holding a .38 caliber handgun, opened the door, raised the gun and pointed the barrel in the direction of three of the workmen.

Marrero told defendant they were there to clean the drains and he should put down the gun. Defendant told them they did not belong there. After some additional conversation, defendant lowered the gun, told the workers to "get out of my hallway," and went back inside the apartment.

Marrero and Spurlock remained in the building while Esola and Tufaro left to summon the police. Sergeant Clifford Hamblen of the Ridgefield Park Police Department was one of the officers who responded to the scene. He was the sole witness presented by the State to the grand jury on April 29, 2003. Sergeant Hamblen described arriving at the scene and the content of interviews he conducted of Marrero, Tufaro and Esola. Sergeant Hamblen also testified that when he rang the doorbell to the second-floor apartment, defendant's sister came down the staircase and opened the door. Upon inquiry, she explained that defendant was upstairs in the apartment.

Sergeant Hamblen instructed defendant's sister to remain downstairs, walked up the staircase toward the second-story apartment and found the door wide open. In plain view, Sergeant Hamblen was able to see two handguns, along with assorted ammunition, lying on a table inside the apartment. Sergeant Hamblen seized the weapons and defendant, who was inside the apartment, admitted that they belonged to him. Sergeant Hamblen detected an odor of alcohol on defendant's breath. Defendant was placed under arrest and transported to police headquarters, where he was read his rights under Miranda. Defendant acknowledged that he had received the Miranda warnings, understood them, and stated he would not give a statement or answer any questions in reference to the incident. One of the weapons seized was a handgun reported stolen in 1989; defendant later volunteered that he had purchased that handgun "years ago."

After Sergeant Hamblen's testimony before the grand jury, the assistant prosecutor read the provisions of N.J.S.A. 2C:12-1b(4), N.J.S.A. 2C:39-4a, and N.J.S.A. 2C:20-7 to the jurors, but did not charge them on the affirmative defense of justification pursuant to N.J.S.A. 2C:3-4 or N.J.S.A. 2C:3-6. One of the grand jurors inquired as to whether defendant had been asked why he had a gun in his hand when he opened the apartment door. In reply, Sergeant Hamblen stated:

We did ask him questions. He refused to give a formal statement, but he did make some voluntary remarks.

* * * *

One of which was that he had bought the gun years ago[.]

Sergeant Hamblen stated defendant provided no other information. The prosecutor then explained to the grand jury:

I can't testify obviously, and Miranda warnings were given in this case, and he has a constitutional right not to speak to the police and offer any justification for his actions. That's his right. That's the right of all of us if . . . we were arrested. So, you know, while that might be something that you'd like to know, we don't have the answer to that. So you just have to go by whether you believe under the circumstances that this is an aggravated assault because he pointed the firearm at the men in the hallway. Okay?

On January 26, 2004, defendant entered a plea of guilty to the fourth-degree aggravated assault charge. The State agreed to recommend a term of probation, move for waiver of the mandatory period of incarceration contained in the Graves Act, N.J.S.A. 2C:43-6C, and seek dismissal of the remaining charges in the indictment. The matter was scheduled for sentencing on April 16, 2004.

On March 29, 2004, defendant filed a motion seeking dismissal of the indictment, on the ground that it was palpably defective and manifestly deficient. The motion was argued in the Law Division before Judge William C. Meehan on April 16, 2004. In denying defendant's application, the judge stated, in pertinent part:

The purpose of a grand jury proceeding is not to determine the guilt or innocence but to decide whether a crime has occurred and whether it was committed by the accused.

The facts and circumstances of this case, giving the State the benefit of the inferences to which they're entitled in such a motion, would not support that application. Here, it is undisputed that the victims were located in the hallway outside the apartment door at all times. It is a hallway. There is no doubt that would be another door to the apartment that had a lock on it when the defendant exited with his gun. There is also a lock downstairs. Apparently, you open that lock at street level and go upstairs. It is also clear to this court the issue is whether the hallway was outside the apartment or was part of the dwelling.

Now, in this case it is clear to the court that three alleged victims in this matter never went to the [apartment's] door but were in the hallway[.] . . . They were outside in this hallway. Defendant argues that the downstairs door makes this part of his apartment. The liquor store owner clearly had keys and access to the lower door and hallway. That is clearly what the testimony showed that was shown to the grand jury. Therefore, these people clearly had access to it for their own purposes and one could reasonably find that it was a common area and common hallway.

The factual issue is not something that has to be decided by a grand jury. This is not a beyond a reasonable doubt issue. The problem is whether a crime was committed and whether the defendant committed it.

It is true that some people may have made an arrangement he was protecting somebody. Who that somebody was, I don't know. Nobody was in danger, nobody was knocking on his door, just some noise coming from people going in and out of windows. As I say, you don't dismiss a grand jury indictment on a factual issue.

In this case I think the evidence is clearly supported that this is a common hallway. Defendant was not being threatened in any way. No one was knocking on his door. There was noise out there and he went out with a gun in hand and . . . he could have called the police department and let them take the appropriate action if he thought something was wrong.

An order memorializing the denial of defendant's motion was entered on April 23, 2004.

On April 30, 2004, the Assignment Judge granted the State's application to waive the minimum mandatory sentencing provisions of the Graves Act, N.J.S.A. 2C:43-6c, and sentenced defendant to an eighteen-month period of probation, with the special conditions that he undergo an alcohol evaluation and counseling if deemed appropriate, and that he be prohibited from possessing or purchasing a firearm.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE LOWER COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO DISMISS COUNT I OF THE INDICTMENT.

A. The lower court committed clear error in finding that the incident did not occur in defendant's dwelling.

1. The lower court erred in characterizing the hallway of a single-family apartment as a common hallway.

2. Even if the hallway is a common hallway, the lower court erred in finding that the incident occurred outside of defendant's dwelling.

B. Issues not specifically addressed by the lower court's opinion clearly indicate that an instruction to the grand jury on justification was appropriate.

C. The State affirmatively misled the grand jury in its statements that defendant left his apartment.

D. The State interfered with the grand jury's investigative function when it did not answer the grand jury's question as to why the defendant came out of his apartment.

E. If the relevant justification statutes were presented, the grand jury would not have returned an indictment.

POINT II

THE LOWER COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO DISMISS COUNT II OF THE INDICTMENT.

After analyzing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons articulated by Judge Meehan in his oral decision delivered on April 16, 2004. We add the following.

A decision on whether or not to dismiss an indictment lies within the sound discretion of the trial court. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). The trial court should only exercise such discretion on the clearest and plainest of grounds, and an indictment should stand unless it "is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996).

The dual purpose of the grand jury is to bring the guilty to trial and protect the innocent from unfounded prosecution. Id. at 228. In considering an application to dismiss an indictment, the inquiry is "whether the grand jury's function was subverted, causing it to arrive at a result which it otherwise would not have reached." State v. Hogan, 336 N.J. Super. 319, 340 (App. Div.), certif. denied, 167 N.J. 635 (2001).

New Jersey recognizes the obligation of a prosecutor to instruct a grand jury with respect to defenses or justifications on the basis that a grand jury "cannot be denied access to evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused." Hogan, supra, 144 N.J. at 236.

However, to qualify for presentment to the grand jury, the exculpatory evidence must squarely refute an element of the crime, and its value must be analyzed "in the context of the nature and source of the evidence, and the strength of the State's case." Id. at 237. Moreover, the State need not "construct a case for the accused or search for evidence that would exculpate the accused." Id. at 238.

Therefore, in making a presentment to a grand jury, a prosecutor is not obligated to "meticulously sift through the entire record of investigative files to see if some combination of facts and inferences might rationally sustain a defense or justification." Hogan, supra, 336 N.J. Super. at 343.

We cannot conclude that the facts known to the prosecutor at the time of the presentment to the grand jury clearly indicated or established the appropriateness of an instruction on the affirmative defense of justification. Ascertaining the exculpatory value of evidence at early stages in the proceedings can be a difficult task. Hogan, supra, 336 N.J. Super. at 341. Here, prior to the grand jury presentment the defendant provided little, if any, explanation for his conduct. Certainly, the information known to the prosecutor at the time of presentment was wholly insufficient to form the basis for imposition of a duty to charge the grand jurors on the affirmative defense of justification. We are also satisfied that the presentment by the prosecutor did not mischaracterize the known information, nor cause the grand jury to arrive at a result which it would not have otherwise reached.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-5518-03T5

December 7, 2005