Opinion
DOCKET NO. A-4559-13T3
06-19-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES STEVENS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 12-06-0623. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In June 2012, a grand jury sitting in Mercer County returned a twenty-six count indictment charging defendant James Stevens with various offenses involving the possession and distribution of heroin and oxycodone. Defendant moved to dismiss the indictment, challenging the grand jury presentation. He noted that Detective James Bailey appeared before the grand jury and was asked 267 questions, 265 of which defendant characterized as "leading questions" because they called for a "yes" or "no" answer. Defendant argued that this method of presentation "gutted [his] right to a fair proceeding in front of the grand jury." Relying on our opinion in State v. Holsten, 223 N.J. Super. 578 (App. Div. 1988), the motion judge denied defendant's motion.
On March 7, 2014, defendant pled guilty pursuant to a plea agreement to third-degree distribution of oxycodone within 1000 feet of school property, N.J.S.A. 2C:35-7. In the plea agreement, defendant reserved the right to challenge the denial of his motion to dismiss on appeal.
The copy of the plea agreement provided in defendant's appendix is illegible. We rely on the transcript for this information. --------
On appeal, defendant presents one point:
POINT I
IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT, THE TRIAL COURT MISAPPLIED ITS DISCRETION IN FINDING THAT IT WAS "BOUND" BY THE OPINION IN STATE V. HOLSTEN DESPITE THE FACT THAT THE MANNER IN WHICH THE PROSECUTOR PRESENTED THE CASE TO THE GRAND JURY
VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO INDICTMENT BY A GRAND JURY.
The decision whether to dismiss an indictment lies within the discretion of the trial court. State v. McCrary, 97 N.J. 132, 144 (1984). That exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused. State v. Hogan, 144 N.J. 216, 229 (1996). A court "should not dismiss an indictment except on the clearest and plainest grounds and only where evidence to support it is clearly lacking." State v. Collette, 257 N.J. Super. 557, 566 (App. Div. 1992). In State v. Ferrante, 111 N.J. Super. 299, 306 (App. Div. 1970), we held that "[a]bsent misconduct or abdication by grand jurors, the question whether evidence before a grand jury was competent or incompetent . . . [is] irrelevant on a motion to dismiss the indictment."
We have carefully reviewed the transcript of the grand jury presentation. Detective Bailey of the Hamilton Township Police Department answered a series of questions by the assistant prosecutor with succinct, affirmative responses such as, "Yes," "That is accurate," "Yes, I did," and "Yes, he did." Through this exchange, Bailey confirmed that he had been involved in the investigation of defendant since 2011, when an informant advised him that defendant was selling heroin and prescription pills out of his home. Bailey posed as a drug purchaser and the informant introduced him to defendant, who offered to sell him prescription pills. On six occasions between June and August 2011, Bailey called defendant on his cell phone and arranged to purchase drugs. On each date, Bailey drove to defendant's home and gave him cash in return for pills. On August 10, 2011, after Bailey purchased oxycodone from defendant, he offered to sell Bailey a "brick" of heroin for $300. Before Bailey completed that purchase, a search warrant was executed on defendant's home on September 1, 2011, and defendant was arrested.
Although Bailey's testimony was limited to brief responses to the assistant prosecutor's leading questions, he was directly involved in the investigation of defendant and provided ample evidence to support the charges contained in the indictment. At the conclusion of his testimony, Bailey was excused from the grand jury room and the grand jurors were asked if they had any questions. When one grand juror had a question, Bailey was recalled and answered three questions.
We considered a similar grand jury presentation based on leading questions in Holsten, supra, 223 N.J. Super. 578. In Holsten, we reversed the trial court's dismissal of the indictment because the evidence before the grand jury was sufficient to sustain the charges in spite of the manner of its presentation. Id. at 585-86. We reaffirmed the principle that "an indictment may be based largely or wholly on hearsay and other evidence which may not be legally competent or admissible at the plenary trial." Id. at 585. Even though the testimony in Holsten "was largely or exclusively incompetent by virtue of the leading questions, there was evidence before the grand jury . . . sufficient to sustain the charges[.]" Id. at 585-86.
In light of the well-established principles governing permissible evidence before a grand jury, we discern no reason to disturb the motion judge's decision to deny defendant's motion to dismiss the indictment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION