STATE OF NEW JERSEY v. WAYNE CRYMES

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1491-16T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

WAYNE CRYMES,

     Defendant-Appellant.
__________________________

              Submitted February 13, 2018 - Decided March 8, 2018

              Before Judges Hoffman and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              13-12-3128.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Michele A. Adubato, Designated
              Counsel, on the brief).

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (John J. Santoliquido,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Wayne Crymes appeals from his conviction, focusing

on a February 24, 2015 order denying his motion to dismiss a nine-
count indictment.         Defendant was indicted for his role in a

robbery, assault and kidnapping of an individual. Defendant argues

his    indictment    should        be   dismissed    based    on   improper     and

incompetent evidence presented to the grand jury.                  We affirm.

       Defendant moved to dismiss the indictment prior to trial

arguing: (1) the indictment was improperly procured based on

hearsay testimony; (2) the State's sole witness before the grand

jury    improperly   gave     an    opinion    as   to   defendant's    guilt    or

innocence; and (3) the State failed to produce any evidence that

defendant participated in the crimes charged.

       After considering the written submissions and arguments of

counsel, the motion judge denied defendant's motion to dismiss the

indictment.    Relying on well-settled case law, the judge reasoned

the State's use of hearsay testimony and other evidence, which may

be    inadmissible   at   trial,        did   not   warrant   dismissal   of    the

indictment.    The judge further found the testimony of the State's

sole witness, Detective Thomas Holton, did not subvert the function

of the grand jury.        The judge concluded that the detective "did

not opine as to the defendant's guilt or innocence relating to the

charge" and his testimony did not "commandeer the grand jury –

jurors into arriving at a result they would otherwise not have

reached."   The judge, giving the State every reasonable inference,

also concluded that the State presented evidence to the grand jury

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"sufficient      to   determine     .    .   .   that    [each]    crime   has   been

committed."

       After    denial   of   his       motion   to     dismiss    the   indictment,

defendant      entered   a    guilty      plea    to    the   kidnapping     charge.

Defendant expressly reserved his right to appeal the denial of his

motion.

       In his sole argument on appeal, defendant contends:

              THE IMPROPER PROCEDURE UTILIZED AND THE
              INCOMPETENT EVIDENCE PRESENTED BEFORE THE
              GRAND JURY MANDATED THAT DEFENDANT'S PRE-TRIAL
              MOTION TO DISMISS THE INDICTMENT BE GRANTED.

       "An indictment is presumed valid and should only be dismissed

if it is 'manifestly deficient or palpably defective.'"                     State v.

Feliciano, 
224 N.J. 351, 380 (2016) (quoting State v. Hogan, 
144 N.J.   216,     229   (1996)).      The      decision    whether    to   dismiss    an

indictment lies within the discretion of the trial court and is

reviewed only for clear abuse. State v. Zembreski, 
445 N.J. Super.
 412, 424 (App. Div. 2016).          We have held that a trial court should

dismiss a grand jury indictment only on the "clearest and plainest

ground."       Id. at 425 (quoting State v. Williams, 
441 N.J. Super.
 266, 271 (App. Div. 2015)).

       To issue an indictment, a grand jury must be presented with

sufficient evidence, viewed in the light most favorable to the

State, establishing a prima facie case as to each crime.                      Hogan,


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144 N.J. at 227.        In establishing a prima facie case, "the State

may not deceive the grand jury or present its evidence in a way

that is tantamount to telling the grand jury a 'half-truth.'"                  Id.

at 236.    To warrant a dismissal of the indictment, the grand jury

instructions must be "blatantly wrong"; incomplete or imprecise

instructions are not enough.          State v. Triestman, 
416 N.J. Super.
 195, 205 (App. Div. 2010) (quoting State v. Hogan, 
336 N.J. Super.
 319, 344 (App. Div. 2001)).              Moreover, "[a]n indictment may be

based largely or wholly on hearsay and other evidence which may

not be legally competent or admissible at the plenary trial."

State v. Holsten, 
223 N.J. Super. 578, 585 (App. Div. 1998)

(alteration in original) (quoting State v. Schmidt, 
213 N.J. Super.
 576, 584 (App. Div. 1986), rev'd on other grounds, 
110 N.J. 258

(1988)).

       We find the motion judge did not abuse his discretion in

denying the motion to dismiss the indictment.               The judge correctly

held   that     the    use   of   hearsay      testimony   is   proper   in    the

presentation     of    evidence    for    an    indictment.      Moreover,     the

detective who testified for the State familiarized himself with

the written reports from the other police departments regarding

the    crimes    and   personally     interviewed     the     victim   prior    to

testifying before the grand jury.



                                          4                              A-1491-16T4
     Nor do we find the grand jury's function was subverted by the

testimony of the State's witness.   The detective testified as to

his knowledge of the law, not whether defendant was guilty or

innocent.

     We concur with the judge that the prosecutor pointed to "some

evidence" before the grand jury to support the charges against the

defendant such that "a grand jury could reasonably believe that a

crime occurred and that the defendant committed it."     State v.

Saavedra, 
222 N.J. 39, 57 (2015) (quoting State v. Morrison, 
188 N.J. 2, 13 (2006)).   At the grand jury stage, the State is not

required to present evidence to sustain a conviction.    State v.

Schenkolewski, 
301 N.J. Super. 115, 137 (App. Div. 1997).

     Based on our review of the record, including a transcript of

the grand jury testimony, we find no legal or factual basis to

disturb the motion judge's decision denying defendant's motion to

dismiss the indictment.

     Affirmed.




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