STATE OF NEW JERSEY v. ANGEL A. CORTES

NOT FOR PUBLICATION WITHOUT THE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-3165-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANGEL A. CORTES,

     Defendant-Appellant.
____________________________

              Submitted April 12, 2018 – Decided April 26, 2018

              Before Judges Simonelli and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              14-07-1197.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Rochelle Watson, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Luisa M. Florez,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Angel A. Cortes appeals from the January 10, 2017

judgment of conviction entered after the trial court denied his
motion to dismiss the indictment and he then pled guilty to third-

degree receiving stolen property, 
N.J.S.A. 2C:20-7(a). On appeal,

defendant contends the presentation of misleading testimony about

the sequence of events leading to the seizure of inculpatory

evidence impaired the integrity of the grand jury proceedings.      We

disagree and affirm.

      We derive the following facts from the testimony of Jersey

City Police Detective Chris Heger before a grand jury.     At 10:53

p.m. on January 4, 2014, the police received a report of a robbery

of two employees, M.C. and R.B.,1 at the Denison Parking office at

the Newport Mall.   A male walked into the front door of the office,

pointed a gun at M.C., locked the front door, and directed M.C.

and R.B. to the back room of the office.       The actor instructed

R.B. to find something to restrain M.C.    R.B. found a white phone

cable, which was used to tie up M.C.     The actor told M.C. he was

not alone, would shoot her if she moved, and showed her a loaded

gun. The actor then directed R.B. at gunpoint to exit the building

through the back door and walked R.B. to the pay station machines

in the parking lot.     The actor made R.B. open the machine and

remove the boxes containing cash.     R.B. put two cash boxes inside

a backpack the actor was carrying and the actor carried a third



1
    We use initials to protect the victims' identity.

                                  2                          A-3165-16T3
cash box.     When they returned to the office, the actor made R.B.

open all the cash boxes and remove the cash.        The actor placed the

cash inside the backpack, warned C.W. and R.B. not to move for

fifteen     minutes,   and   fled   through   the   back   door.       After

approximately ten minutes, C.W. and R.B. notified mall security

of the robbery.

     Both victims described the actor as being five foot, five

inches to five foot, seven inches tall, Caucasian or Hispanic with

a thin build, in his early twenties, wearing a black zip-up hoodie,

blue jeans, black sneakers or boots, and a black ski mask that

only revealed his hazel-colored eyes, and carrying a black backpack

with white writing on the straps or sleeve.           M.C. subsequently

went to police headquarters and gave a statement mirroring the

above testimony and adding more detail about the robbery.

     Heger also testified he viewed several surveillance cameras

from the scene that captured events leading up to the robbery and

portions of the robbery.      One video showed R.B. carrying a black-

colored backpack while walking through the parking lot with the

actor, who was approximately five foot, eight inches tall and

wearing a dark hooded sweatshirt and dark gray/black jeans. Another

video showed R.B. and the actor, who appeared to be Caucasian or

Hispanic, approximately five foot, eight inches tall, and wearing

the same described clothing, approach the pay machine.             R.B. then

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placed the backpack next to the pay machine, opened it, removed

three pay machine boxes, and placed two in the backpack and one

on the ground.   Meanwhile, the actor was pacing back and forth and

using a black-colored phone.     The actor walked over to the pay

machine, grabbed the box on the ground, and began walking with

R.B., who grabbed the backpack, through the parking lot.

     A third video also showed R.B. carrying the backpack and the

actor carrying a pay machine box.     A fourth video showed the actor

wearing a dark-colored hooded sweatshirt and dark-colored jeans,

carrying a black backpack, and standing next to the driver's side

of R.B.'s car.   The actor appeared to be engaged in a conversation

with an individual seated inside R.B.'s car.     R.B. also conversed

with the individual.   R.B. and the actor then began walking away

from R.B.'s car.   R.B. continued walking through the parking lot

to the office while the actor walked toward a parked vehicle.

Approximately thirty seconds later, the actor is seen walking in

the direction of the office.     After viewing a fifth surveillance

video, which showed R.B.'s interaction with the actor, R.B. became

a target of the investigation.   R.B. subsequently gave a statement

that defendant committed the robbery and identified defendant from

a photograph.

     Heger testified the police went to defendant's sister's home

to interview defendant.     When they entered the home, they saw

                                  4                           A-3165-16T3
defendant grab a black backpack and attempt to flee through a

second floor bedroom window.      The officers apprehended defendant

and obtained the sister's consent to search.           The police recovered

the black backpack, which contained $793 believed to be proceeds

from the robbery, and clothing that matched the clothing worn by

the actor depicted in the surveillance videos.

      The grand jury indicted defendant for first-degree conspiracy

to commit armed robbery, 
N.J.S.A. 2C:15-1 and 
N.J.S.A. 2C:5-2;

first-degree    robbery,   N.J.S.A.       2C:15-1;   third-degree   criminal

restraint, 
N.J.S.A. 2C:13-2; second-degree unlawful possession of

a   weapon,   
N.J.S.A.   2C:39-5(b);      second-degree   possession    of   a

weapon for an unlawful purpose, 
N.J.S.A. 2C:39-4(a); second-degree

certain persons not to have weapons, 
N.J.S.A. 2C:39-7(b); second-

degree hindering apprehension or prosecution, 
N.J.S.A. 2C:29-

3(a)(5); third-degree terroristic threats, 
N.J.S.A. 2C:12-3(b);

fourth-degree aggravated assault, 
N.J.S.A. 2C:12-1(b)(4); fourth-

degree possession of prohibited devices, 
N.J.S.A. 2C:39-3(f); and

second-degree kidnapping, 
N.J.S.A. 2C:13-1(b).

      The trial court subsequently granted defendant's motion to

suppress the items found in his sister's home.             The court found

the warrantless search as illegal because it occurred before

defendant's sister gave consent to search.            Defendant then filed

a motion to dismiss the indictment, arguing Heger's misleading

                                      5                              A-3165-16T3
testimony about the seizure of the suppressed evidence impaired

the integrity of the grand jury proceedings.   The court denied the

motion, finding the State presented was at least some evidence as

to each element of the prima facie case, and there was no basis

to dismiss the indictment.    On appeal, defendant reiterates the

argument made to the court on his motion to dismiss the indictment.

     "[O]ur courts have long held that a dismissal of an indictment

is a draconian remedy and should not be exercised except on the

clearest and plainest ground."   State v. Williams, 
441 N.J. Super.
 266, 271 (App. Div. 2015) (alteration in original) (quoting State

v. Peterkin, 
226 N.J. Super. 25, 38 (App. Div. 1988)).   "Dismissal

is the last resort because the public interest, the rights of

victims and the integrity of the criminal justice system are at

stake."   State v. Ruffin, 
371 N.J. Super. 371, 384 (App. Div.

2004). Even in a case in which we found an investigating officer's

"brazen misconduct" to be "wholly reprehensible," we reversed the

dismissal of seventeen indictments, stating, "we question whether

the public must pay the price by forfeiting its day in court on

otherwise properly found indictments."   Peterkin, 
226 N.J. Super.

at 30-31. Therefore, although a motion to dismiss an indictment

is directed to the sound discretion of the court, State v. Hogan,


144 N.J. 216, 229 (1996), "an indictment should stand 'unless it

is palpably defective.'"   State v. Lyons, 
417 N.J. Super. 251, 258

                                 6                          A-3165-16T3
(App. Div. 2010) (citation omitted).     We will not disturb the

court's exercise of discretion absent clear abuse.     Hogan, 
144 N.J. at 229.

     We discern no abuse of discretion here.    The indictment was

not palpably defective.    It was based on sufficient admissible

evidence establishing probable cause that defendant committed the

crimes charged, specifically, R.B.'s identification of defendant

as the actor and the surveillance videos showing defendant's

involvement in the robbery.   Because the State presented at least

some evidence as to each element of a prima facie case, the

indictment must stand.    State v. Vasky, 
218 N.J. Super. 487, 491

(App. Div. 1987) (citation omitted).

     Affirmed.




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