Opinion
DOCKET NO. A-5601-12T3
05-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VICTOR M. HERNANDEZ, a/k/a VICTOR H. TORRES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Kennedy. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 12-01-0010. Joseph E. Krakora, Public Defender, attorney for appellant (Alicia Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from a judgment of conviction entered pursuant to a plea following the denial of his motion to dismiss the indictment. See Rule 3:3-9(f). Defendant argues that the Law Division erred in denying the motion because the State presented "improper testimony" before the grand jury that "infringed upon [its] decision-making function." Defendant also argues that in denying the motion, the Law Division judge "incorrectly took into account evidence that was never presented to the [g]rand [j]ury[.]" We have considered these arguments in light of the record and the law, and we affirm.
On January 3, 2012, the Passaic County Grand Jury returned an indictment charging defendant with the following crimes: possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10; possession of heroin with intent to distribute, N.J.S.A. 2C:35-5; possession of heroin with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7; possession of heroin with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1; unlawful possession of a handgun, N.J.S.A. 2C:39-5; possession of a weapon while committing a CDS offense, N.J.S.A. 2C:39-4.1; and certain persons not to have weapons, N.J.S.A. 2C:39-7.
The facts which follow are gleaned from the transcript of the proceedings before the grand jury. On August 16, 2011, members of the Passaic County Narcotics Task Force executed a search warrant at a residence in Paterson occupied by defendant. The search warrant had been issued as the result of information obtained during a police investigation and authorized a search of defendant and his apartment.
That day, members of the Task Force observed defendant leave the residence. He was arrested in the street, and a search of his person revealed a cigarette box containing eleven glassine envelopes of heroin, and a set of keys to his apartment. Returning to the apartment, the Task Force entered using defendant's key, and they found a loaded handgun in the nightstand in defendant's bedroom; and ten envelopes of heroin in a cigarette box, bullets, seven loose envelopes of heroin, and various items used to package and store heroin, in other areas of the bedroom. In addition, they discovered $764 in the living room.
The residence was within 1000 feet of a school and 500 feet of a park. The prosecutor asked the following questions of one of the Task Force officers before the grand jury:
Q. Okay. Now, based on your training and experience again, Detective Day, having reviewed this report and what was found at this location the heroin, the way it was packaged, the fact that a bag that contained a loose amount of rice was found there, the empty glassines, the bag of rubber bands, the wrapping that was found to wrap up quantity or -- bricks or bricks of heroin, based on your training and experience, and also the
additional $764 in cash, do you have an opinion based on your experience and training as a narcotics officer what the heroin that was found was possessed for, whether it was possessed for personal use or for distribution?A record check revealed that defendant had not obtained a permit for the handgun.
A. I believe it was used for distribution.
Q. Okay. And that's based on what was found, the items as I indicated, the rice, the rubber bands, the Baggies, the wrappings, all that goes to the amount -- to the opinion that you have that it's distribution?
A. Yes.
Q. And the fact that there was 28 glassines, does that also enhance your opinion that that was for distribution?
A. Yes.
Q. And the way they were packaged?
A. Yes.
After the grand jury returned the indictment, defendant moved unsuccessfully for a dismissal, arguing that there was insufficient evidence to support the charges. The Law Division judge denied the motion and, in setting forth his reasons on the record, alluded to evidence before the grand jury showing that defendant had undertaken "controlled buys" of CDS prior to the issuance of the warrant. Thereafter, defendant entered a plea of guilty to two of the charges pursuant to a plea bargain in which he expressly reserved his right to appeal the denial of his motion to dismiss the indictment.
We turn first to defendant's argument that the prosecutor adduced "improper evidence" before the grand jury by asking the detective whether the heroin was possessed "for personal use or for distribution."
We review a trial court's denial of a motion to dismiss the indictment for an abuse of discretion. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). An indictment should be dismissed "only on the clearest and plainest ground, . . . and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (citations and internal quotation marks omitted).
A "'grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.'" State v. Grant, 361 N.J. Super. 349, 357 (App. Div. 2003) (quoting United States v. Williams, 504 U.S. 36, 51, 112 S. Ct. 1735, 1744, 118 L. Ed. 2d 352, 368 (1992)). "Consistent with that view we have upheld the validity of indictments by grand juries presented with a variety of evidence that would have been inadmissible at trial." Ibid. The grand jury's "power of inquiry is not bound by the rules of evidence." State v. Hogan, 336 N.J. Super. 319, 338 (App. Div.), certif. denied, 167 N.J. 635 (2001). See also State v. Scherzer, 301 N.J. Super. 363, 428-29 (App. Div.) (permitting evidence of prior bad acts), certif. denied, 151 N.J. 466 (1997); State v. Holsten, 223 N.J. Super. 578, 585-86 (App. Div. 1988) (permitting hearsay and leading questions).
Indeed, even prosecutorial misconduct cannot be used as a means to dismiss an indictment, unless it "is extreme and clearly infringes upon the [grand] jury's decision-making function," State v. Murphy, 110 N.J. 20, 35 (1988) (alteration in original) (citing State v. Schamberg, 146 N.J. Super. 559, 564 (App. Div.), certif. denied, 75 N.J. 10 (1977)), and "amounted to an intentional subversion of the grand jury process." Ibid.
In State v. Ferrante, 111 N.J. Super. 299 (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." Ferrante, supra, 111 N.J. Super. at 306. Also, as we noted earlier, "[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." Holsten, supra, 223 N.J. Super. at 585 (quoting State v. Schmidt, 213 N.J. Super. 576, 584 (App. Div. 1986), rev'd on other grounds, 110 N.J. 258 (1988)); see also State v. McCrary, 97 N.J. 132, 146 (1984) (stating that "hearsay and other informal proofs are permissible in determining issues that implicate important rights," such as the bases for an indictment) (citing Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 408, 100 L. Ed. 397, 402-03, reh'g denied, 351 U.S. 904, 76 S. Ct. 692, 100 L. Ed. 1440 (1956)); State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987) ("A grand jury may return an indictment based largely or wholly on hearsay testimony."). Where there is sufficient evidence to sustain the grand jury's charges, the indictment should not be dismissed. See Holsten, supra, 223 N.J. Super. at 585-86.
Guided by these standards, we perceive no error in the State's presentation before the grand jury which would have warranted dismissal of the indictment. While lay opinion testimony by a non-expert detective concerning the nature of an alleged CDS event is generally not admissible at trial, see State v. McLean, 205 N.J. 438, 463 (2011), the fact that the officer here was not qualified as an expert, or that the nuances in the question and answer might have been better expressed, does not warrant the conclusion that the grand jury was "invited to abdicate its decision-making responsibility," as argued by defendant. Nothing in the record suggests that the detective's opinion caused the grand jury to reach a decision that it would not otherwise have reached, given the evidence before it, which included the extensive amount of packaging materials discovered in defendant's apartment.
Finally, the motion judge's mistaken reference to evidence not before the grand jury in his bench opinion does not require reversal or a remand. Defendant's arguments to the contrary are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION