Opinion
A-1349-21
12-19-2022
STATE OF NEW JERSEY, Plaintiff-Appellant, v. DEJA M. LEWIS, Defendant-Respondent
David M. Galemba, Assistant Prosecutor, argued the cause for appellant (Kristin J. Telsey, Salem County Prosecutor, attorney; David M. Galemba, of counsel and on the briefs). Taylor L. Napolitano, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ashley Brooks, Assistant Deputy Public Defender, of counsel and on the brief).
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.
Argued October 3, 2022
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 21-02-0074.
David M. Galemba, Assistant Prosecutor, argued the cause for appellant (Kristin J. Telsey, Salem County Prosecutor, attorney; David M. Galemba, of counsel and on the briefs).
Taylor L. Napolitano, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ashley Brooks, Assistant Deputy Public Defender, of counsel and on the brief).
Before Judges Currier, Enright and Bishop-Thompson.
PER CURIAM.
While on patrol on April 12, 2020, police saw defendant, known to them for outstanding warrants and complaints. They arrested her and during the processing at the police station, defendant stated she had "the virus "and laughed and coughed. Defendant continued this behavior when taken to the hospital later and in the patrol car while en route to the jail.
A grand jury indicted defendant on one count of attempted aggravated assault, N.J.S.A. 2C:12-1(b)(7), and one count of terroristic threats, N.J.S.A. 2C:12-3(a). Defendant moved to dismiss the indictment. The trial court granted the motion on December 7, 2021. Because the State did not factually support the elements of the charged offenses, we affirm.
In March 2020, the Governor of New Jersey issued a state of emergency order as a result of the COVID-19 pandemic. While on patrol on April 12, 2020, Officer Robert Klein of the Salem City Police Department identified defendant and approached her, advised her of outstanding complaints and warrants and ordered her to put her hands behind her back. Defendant responded that she was not going to jail and said "corona virus [sic]." Klein transported her to the police station. At the station, defendant began coughing "severely" and repeatedly stated she had "the virus." Klein told the grand jury he understood "the virus" to be COVID-19. As Klein was fingerprinting defendant, she stated she "was confirmed positive for the virus," went to the hospital, and had the health department at her home six days earlier. When asked why she was not selfquarantining, defendant stated she was not doing so because other people were not. Klein then reported that defendant "continued to laugh and cough and said that [Klein would] contract the virus from her." While at the station, defendant also removed her mask, continued to cough, and attempted to break free of the handcuffs on the bench.
Klein transported defendant to the hospital for clearance to take her to the jail. At the hospital, defendant "got agitated and would not cooperate with medical staff and continue[d] to fight to not be checked out by the staff." Defendant also "repeatedly laughed at staff saying that everyone is going to get corona virus [sic] and [she] hope[d] that [they] die from it." After the hospital cleared defendant, she was transported to the jail. During the drive, defendant coughed severely and vomited multiple times.
Defendant moved to dismiss the indictment, asserting the State had not established a prima facie case for either charge. The court granted the motion in an oral decision.
In first addressing the attempted aggravated assault charge, the judge noted the State had to demonstrate defendant attempted to cause significant bodily injury. She stated:
I cannot understand how this defendant could have attempted to do that by coughing in the vicinity of the officers. I'm not saying that she was acting-that she was acting okay that night. She was totally out of control and inappropriate, but from what I've read here it's not as if she actually got bodily fluid on the officer or anybody else. It's not as if she was standing right in his face at the time she was coughing.
The judge concluded that "coughing in the vicinity of the officer" was not "an attempt to cause significant bodily injury as defined in the statute."
In considering the terroristic threat charge, the judge noted the offense "requires a threat of a crime of violence." She stated: "[a]gain, [defendant] wasn't threatening to do anything. She was coughing in the vicinity of the officer and apparently everybody at the hospital as well and making obnoxious comments about it. I don't see how that is a threat to commit a crime of violence."
The judge concluded:
The bottom line is, . . . the facts of what occurred simply do not rise to the level of an aggravated assault or a terroristic threat. And I really don't see how a reasonable grand jury could have reached the conclusion returning this indictment. I certainly don't
see how a reasonable jury would convict on either of these offenses were they given the chance to do so.
On appeal, the State presents a sole argument for our consideration:
POINT I
AS SUFFICIENT EVIDENCE WAS PRESENTED TO ESTABLISH A PRIMA FACIE CASE FOR THE CHARGED OFFENSES, THE INDICTMENT SHOULD HAVE BEEN LEFT UNDISTURBED
Our review of a dismissal of an indictment is for an abuse of discretion. State v. Campione, 462 N.J.Super. 466, 492 (App. Div. 2020) (citing State v. Twiggs, 233 N.J. 513, 532 (2018)). The trial court's order "will not be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144 N.J. 216, 229 (1996). "When a decision to dismiss hinges on a purely legal question, however, our review is de novo and we need not defer to the motion court's interpretations." Campione, 462 N.J.Super. at 492.
A defendant in New Jersey has the right to an indictment by grand jury. N.J. Const. art. I § 8. "Once the grand jury has acted, an 'indictment should be disturbed only on the "clearest and plainest ground. Hogan, 144 N.J. at 228 (quoting State v. Perry, 124 N.J. 128, 168 (1991)). A grand jury indictment should only be disturbed by the trial court "when the indictment is manifestly deficient or palpably defective." Id. at 229. Trial courts considering the dismissal of an indictment "should evaluate whether, viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it." State v. Morrison, 188 N.J. 2, 13 (2006); see also State v. Lyons, 417 N.J.Super. 251, 258 (2010).
It is a relatively low bar for an indictment to survive a motion to dismiss. If the State has presented "some evidence establishing each element of the crime to make out a prima facie case," then the trial court should deny a motion to dismiss an indictment. State v. Feliciano, 224 N.J. 351, 380-81 (2016) (citing State v. Saavedra, 222 N.J. 39, 57 (2015)). This is because "[i]t is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess that there is an adequate basis for bringing a criminal charge," and it is the petit jury's duty at trial to weigh credibility and resolve factual disputes. Hogan, 144 N.J. at 230, 236 (quoting United States v. Williams, 504 U.S. 36, 51 (1992)).
Defendant was charged with N.J.S.A. 2C:12-1(b)(7): "A person is guilty of aggravated assault if he . . . [a]ttempts to cause significant bodily injury to another . . . ." Attempt requires a purposeful mens rea. See State v. McAllister, 211 N.J.Super. 355, 362 (App. Div. 1986) (stating "one cannot logically attempt to cause a particular result unless causing that result is one's 'conscious object,' the distinguishing feature of a purposeful mental state."); see also N.J.S.A. 2C:2-2(b)(1).
Therefore, the State had to present some evidence from which a grand jury could believe that defendant intended to cause significant bodily injury. The State did not do so.
Significant bodily injury is defined as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1(d). Klein said defendant was coughing while she was at the police station. He also stated she was wearing a mask although she took it off at some point. Therefore, the only evidence presented to satisfy a purposeful attempt to cause significant bodily injury was defendant coughing, at times without a mask in place.
Klein did not indicate in his police report or to the grand jury what the distance was between he and defendant when she coughed, whether he was wearing a mask, whether defendant was tested for COVID-19 at the hospital nor what those results were. Nor did Klein describe defendant as manifesting any signs of COVID-19. To the contrary, she was released from the hospital and cleared for intake at the county jail. The act of coughing, alone, was not evidence of anything, let alone some evidence of defendant's purposeful state of mind to enable a grand jury to reasonably believe defendant attempted to cause significant bodily injury. The attempted aggravated assault charge could not withstand dismissal.
Defendant was not charged with N.J.S.A. 2C:12-13, throwing bodily fluid at a law enforcement officer, a fourth-degree crime.
We turn to the court's dismissal of the terroristic threats charge. Under N.J.S.A. 2C:12-3(a), a terroristic threat is a third-degree crime that is committed when one, in relevant part, "threatens to commit any crime of violence with the purpose to terrorize another." Breaking down the elements of the statute, the State must present some evidence that defendant threatened to commit a crime of violence. The facts before the grand jury were that defendant coughed, said she had "the virus" and Klein was going to contract it. There is no case law in New Jersey delineating an attempted aggravated assault as a crime of violence, much less the act of coughing. The State did not support this element of the statute.
Because the State did not present some evidence to support the elements of the charged offenses, the court did not err in dismissing the indictment.
Affirmed.