STATE OF NEW JERSEY VS. JEROME SHAW, JR. (13-04-0591, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2058-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

APPROVED FOR PUBLICATION

As REDACTED

v. July 23, 2018

JEROME SHAW, JR., JEROME SHAW, APPELLATE DIVISION

JERONE SHAW, JR., and ROME,

Defendant-Appellant.

________________________________

Submitted January 29, 2018 – Decided July 23, 2018

Before Judges Sabatino, Ostrer and Whipple.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

13-04-0591.

Joseph E. Krakora, Public Defender, attorney

for appellant (Anderson D. Harkov,

Designated Counsel, on the brief).

Dennis Calo, Acting Bergen County

Prosecutor, attorney for respondent (Michael

R. Philips, Special Deputy Attorney

General/Acting Assistant Prosecutor, of

counsel and on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

Defendant Jerome Shaw, Jr., appeals from his conviction and

sentence after he pleaded guilty to third-degree conspiracy to

commit burglary, N.J.S.A. 2C:5-2, N.J.S.A. 2C:18-2, and

disorderly persons possession of burglary tools, N.J.S.A. 2C:5-

5(a). After a grand jury refused to indict, the State

resubmitted the case to a new grand jury, which voted an

indictment. The court sua sponte dismissed that indictment and

the State resubmitted again, this time with an additional

witness, and secured a second indictment. Defendant contends

the court should have dismissed that indictment, too, because

the evidence was not materially different; and a grand jury

witness disclosed defendant's admission that he had "some prior

criminal history." Defendant also argues the court erred in

denying his motion to suppress evidence, including various

burglary tools, seized after a traffic stop. Lastly, he argues

his five-year sentence was excessive, and the court imposed a

longer period of parole ineligibility than it promised.

While the prosecutor's power to resubmit cases to a grand

jury is not boundless, we need not chart the limits on

successive grand jury resubmissions to conclude there was no

basis shown here to warrant dismissal of the indictment. Only

one successive grand jury was required to secure an indictment.

After the court dismissed that indictment (mistakenly, we

conclude, for reasons discussed below), the State presented

additional evidence, and a third grand jury voted a second

indictment. The evidence supporting the State's case was

2 A-2058-15T3

strong. There is no proof of prosecutorial vindictiveness or an

abusive exercise of prosecutorial discretion. Nor did defendant

show that resubmission was unduly burdensome, or that it

deprived him of fundamental fairness. Furthermore, the passing

reference to defendant's criminal history did not deprive him of

a fair grand jury presentation.

Also, the trial court correctly denied the motion to

suppress. Lastly, although the sentence was not excessive, we

remand for reconsideration of the parole ineligibility term.

I.

Upper Saddle River Police Officer Emmett McDowell performed

a traffic stop in Saddle River after defendant and his father,

co-defendant Jerome Shaw, Sr. (Senior), were backing a truck out

of a driveway onto West Saddle River Road into McDowell's path.

Senior was behind the wheel. McDowell said he had to slam on

his brakes to avoid "t-bon[ing]" the truck.

After he approached defendant's truck, McDowell began to

suspect something more than a traffic violation was afoot. The

two men were dressed almost head to toe in black, including

black shoes and coveralls; they appeared nervous. Senior had a

New York driver's license, but the truck had North Carolina

plates and was registered to a woman. A rifle case – the sort

used to carry assault rifles – was visible on the rear seat.

3 A-2058-15T3

Asked what was in the case, Senior said it contained

construction tools, and invited McDowell to look for himself.

Saddle River Police Officer Edward Riedel arrived to assist

McDowell. After Senior was asked to exit the truck, Riedel

questioned defendant about the rifle case's contents. As did

his father, defendant invited the officer to look for himself.

Riedel removed the rifle case and opened it. It contained

several pry bars, a large mallet, some pipe wrenches, several

zip ties of various sizes, knee pads, and cutting instruments.

Some of the tools were brand new, with their price tags still

attached. The two men claimed to be on construction jobs,

although it was after 1:00 a.m. and they were in a residential

area. They could not say where they were working. They gave

contradictory explanations of the nature of the work they did,

and the kind of properties they worked on. Riedel saw black ski

masks and gloves on the floor of the truck, although it was a

mild October evening. They also claimed to be lost and looking

for Route 17, but there was a GPS device in the vehicle. Riedel

suspected the two men were planning to commit a burglary, or

already had committed one.

Once Riedel asked defendant to step out of the truck,

defendant could produce no identification. He was acting

nervously. He disclosed he had previously been arrested for

4 A-2058-15T3

weapons offenses. Riedel then patted defendant down, and seized

a small flashlight. Defendant and Senior were arrested and

searched incident to arrest. The officers seized from defendant

a list of six residences in Saddle River and Mendham. They

seized from Senior a flashlight and a tennis-ball-sized rock.

Aside from the rifle case's contents, the other items in the

truck were seized pursuant to a search warrant.

The first grand jury, which heard Riedel generally recount

these facts, declined to indict. A month later, the State re-

presented the case through Riedel's testimony to a second grand

jury, which returned an indictment. However, the presiding

criminal judge dismissed the indictment on her own motion. She

did so after the clerk informed her that the second indictment

involved the same complaint-warrant and the same witness as the

first presentment.1 The judge later explained that she was

enforcing what she called "the multiple presentation rule,"

which, she said, provides "you can't go to the grand jury more

than once on the same facts."

Shortly thereafter, the State presented the case to a third

grand jury. Of relevance to one of defendant's points on

appeal, Riedel softened defendant's admission that he had

1

The record does not include the transcript of the grand jury's

return of the indictment to the court, nor does it include the

court's order of dismissal.

5 A-2058-15T3

weapons arrests. Explaining his decision to pat down defendant,

Riedel testified, "Eventually he admitted to some prior criminal

history that raised my suspicion . . . ."

In addition to Riedel, the State for the first time called

Captain Timothy Condon of the Bergen County Prosecutor's Office,

as an expert in burglary investigations. Condon supplemented

Riedel's opinion that the circumstances indicated that defendant

and Senior were planning to commit burglary. Condon highlighted

that burglars often use new tools, to avoid preserving evidence

on the tools of previous burglaries. By contrast, people

actually involved in construction usually have well-worn tools.

He opined the zip ties were likely intended for restraining

occupants of a home. The rocks were to be used to break

windows. The black attire was designed to avoid detection. He

viewed defendant's list of addresses as a "hit list." He also

noted that defendant possessed a hand truck, which he could have

used to remove a safe.

The third grand jury returned an indictment, which, in

addition to the conspiracy count to which defendant later

pleaded guilty, charged six counts of third-degree attempted

burglary, N.J.S.A. 2C:5-1, N.J.S.A. 2C:18-2 – for each residence

on defendant's list – as well as three counts of third-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

6 A-2058-15T3

4(d), characterizing a sledgehammer, mallet, and prybar as

weapons.

In support of his motion to dismiss the indictment,

defendant's counsel argued that the State abused the grand jury

process by resubmitting the case without judicial approval, and

without presenting materially different evidence. Defendant

also objected to the reference to defendant's criminal history.

The court denied the motion, finding that Condon offered new and

additional evidence. The court did not address the point about

defendant's criminal history.

The court thereafter conducted an evidentiary hearing on

defendant's motion to suppress the evidence seized as a result

of the traffic stop, and subsequent searches. McDowell and

Riedel testified, generally recounting the facts summarized

above. The court denied the motion. The court held that the

initial stop was justified, because defendant blocked traffic.

Other circumstances – the time, the out-of-state plates, the

black attire, and the rifle case – warranted further

investigation. The court held that the warrantless search of

the rifle case was justified based on consent and the plain view

doctrine. The gloves, masks, goggles, and GPS unit were also in

plain view, although police awaited a warrant before seizing

them. The pat-down of defendant and seizure of the flashlight

7 A-2058-15T3

were justified by a reasonable safety concern; and the seizure

of other items on defendant's and Senior's persons was properly

based on searches incident to arrest.

Following denial of his pre-trial motions, defendant

entered his guilty plea before a different judge. The plea

agreement with the State called for a five-year term, with a

two-year parole bar, but the judge promised to impose a twenty-

month parole bar. The sentence was to be concurrent to a North

Carolina sentence defendant was already serving.

At the sentencing hearing, the judge noted defendant, then

thirty-five years old, had an extensive, multi-state criminal

record, which supported finding aggravating factors three,

N.J.S.A. 2C:44-1(a)(3) (risk of re-offense); six, N.J.S.A.

2C:44-1(a)(6) (extent of prior criminal record and seriousness

of offenses); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter

defendant and others). Those factors substantially outweighed

mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment

would be excessive hardship on dependents). Defendant had a

young child.

Although he stated he would honor the plea agreement, the

judge imposed a parole bar of two years instead of twenty months

on the five-year term. The ensuing judgment of conviction did

not reflect any parole bar.

8 A-2058-15T3

On appeal, defendant raises the following points for our

consideration:

POINT ONE

THE INDICTMENT AGAINST DEFENDANT SHOULD HAVE

BEEN DISMISSED DUE TO THE INHERENT PREJUDICE

OF THE GRAND JURY BEING TOLD DEFENDANT HAD A

PRIOR CRIMINAL HISTORY AND BECAUSE THE STATE

PRESENTED THE SAME EVIDENCE TO THREE

SEPARATE GRAND JURIES BEFORE IT FINALLY

OBTAINED AN INDICTMENT.

POINT TWO

THE TRIAL COURT ERRED WHEN IT DENIED

DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

SEIZED AS A RESULT OF A WARRANTLESS SEARCH

BECAUSE THE POLICE OFFICERS CONDUCTED AN

IMPROPER INVESTIGATORY DETENTION, FOLLOWED

BY AN ILLEGAL WARRANTLESS SEARCH OF THE

RIFLE CASE THEY REMOVED FROM DEFENDANT'S

VEHICLE. THE SUBSEQUENT WARRANTLESS

SEARCHES, AND THE SEARCH WARRANT OBTAINED

THEREAFTER, WERE THE "FRUIT" OF THAT ILLEGAL

SEARCH, CONTRARY TO THE UNITED STATES AND

NEW JERSEY CONSTITUTIONS.

POINT THREE

DEFENDANT'S SENTENCE WAS EXCESSIVE AND

CONSTITUTED AN ABUSE OF DISCRETION,

REQUIRING HIS SENTENCE BE VACATED AND THE

CASE RETURNED TO THE TRIAL COURT FOR A NEW

SENTENCE HEARING.

POINT FOUR

THE DISCREPANCY BETWEEN THE PLEA AGREEMENT,

SENTENCING TRANSCRIPT, AND JUDGMENT OF

CONVICTION MUST BE CLARIFIED.

9 A-2058-15T3

II.

Defendant contends the grand jury proceedings were

defective because: (1) the State resubmitted the matter to

multiple grand juries, and presented the same evidence, despite

offering a new witness at its third presentation; and (2)

elicited information that defendant had a criminal history. In

response, the State contends, without qualification, "[a]

prosecutor may resubmit a previously no-billed case to any grand

jury at any time within the statute of limitations . . . ."

Although an abuse of discretion standard generally governs

our review of a trial court's decision on a motion to dismiss an

indictment, we review de novo a decision that "relies on a

purely legal question . . . ." State v. Twiggs, ___ N.J. ___,

___ (2018) (slip op. at 20). In reviewing the "decision of a

trial court to dismiss [or not dismiss] an indictment with

prejudice[, we] must ensure that the correct standard was

employed by the trial court." State v. Abbati, 99 N.J. 418, 436

(1985). We are also free to affirm a trial court's decision on

grounds other than those the trial court relied upon. Hayes v.

Delamotte, 231 N.J. 373, 386-87 (2018); State v. Heisler, 422

N.J. Super. 399, 416 (App. Div. 2011).

10 A-2058-15T3

A.

To address defendant's resubmission argument, we first

consider basic principles pertaining to the grand jury, the

prosecutor's charging discretion, and the court's authority to

assure fundamental fairness. "No person shall be held to answer

for a criminal offense, unless on the presentment or indictment

of a grand jury . . . ." N.J. Const. art. I, ¶ 8. A defendant

is entitled to a "fundamentally fair grand jury presentation."

State v. Grant, 361 N.J. Super. 349, 356 (App. Div. 2003). "The

purposes of the grand jury extend beyond bringing the guilty to

trial. Equally significant is its responsibility to 'protect[]

the innocent from unfounded prosecution.'" State v. Hogan, 144

N.J. 216, 228 (1996) (quoting State v. Murphy, 110 N.J. 20, 29

(1988)). "The grand jury serves an important and historic

purpose in standing between the defendant and the power of the

State, protecting the defendant from unfounded prosecutions."

State v. Fortin, 178 N.J. 540, 638 (2004).

Noting that many other states have dispensed with the grand

jury entirely, our Court observed, "In New Jersey, the grand

jury remains a constitutional bulwark against hasty and ill-

founded prosecutions and continues to lend legitimacy to our

system of justice by infusing it with a democratic ethos."

Ibid. "[T]he right to indictment in the State Constitution

11 A-2058-15T3

indicates that the grand jury was intended to be more than a

rubber stamp of the prosecutor's office." Hogan, 144 N.J. at

236. "Our State Constitution envisions a grand jury that

protects persons who are victims of personal animus,

partisanship, or inappropriate zeal on the part of a

prosecutor." Ibid.

Yet, an indictment should not be dismissed "except on 'the

clearest and plainest ground' and an indictment should stand

'unless it is palpably defective.'" State v. N.J. Trade Waste

Ass'n, 96 N.J. 8, 18-19 (1984) (quoting State v. Weleck, 10 N.J.

355, 364 (1952)). Our Supreme Court has declared the general

principle that "[a] trial court . . . should not disturb an

indictment if there is some evidence establishing each element

of the crime to make out a prima facie case." State v.

Morrison, 188 N.J. 2, 12 (2006).

Before the grand jury may exercise its power, the

prosecutor must make the discretionary decision to present the

case. The prosecutor's "duty is not merely to prosecute the

guilty but to protect the innocent as well." Abbati, 99 N.J. at

434. Our Court has recognized that the prosecutor's charging

power is broad, but not boundless. Upon clear and convincing

proof of a patent and gross abuse of discretion, a court may set

aside a refusal to admit a defendant to pre-trial intervention.

12 A-2058-15T3

See State v. K.S., 220 N.J. 190, 200 (2015) (noting "[t]his

discretion arises out of 'the fundamental responsibility of

prosecutors for deciding whom to prosecute'") (quoting State v.

Dalglish, 86 N.J. 503, 509 (1981)); State v. Leonardis, 73 N.J.

360, 382 (1977) (recognizing the "patent and gross abuse of

discretion" standard); State v. Childs, 242 N.J. Super. 121, 129

(App. Div. 1990) (stating that the prosecutor's broad

discretion, while "not boundless, . . . may only 'be reviewed

for arbitrariness or abuse'") (quoting In re Investigation

Regarding Ringwood Fact Finding Comm., 65 N.J. 512, 516 (1974)).

Separate from the court's authority to review prosecutorial

discretion, see Abbati, 99 N.J. at 433-34 (noting that the

prosecutor's office "has never been regarded as free from

judicial supervision and control"), is the court's inherent

authority to dismiss an indictment with prejudice to assure

fundamental fairness. "Thus, the prosecutor's decision to

reprosecute [after successive mistrials] is not immune from

judicial supercession even absent a finding of abuse of

prosecutorial discretion." Id. at 434. "The anxiety, vexation,

embarrassment and expenses to the defendant of continual

reprosecution where no new evidence exists is a proper subject

for the application of traditional notions of fundamental

fairness and substantial justice." Id. at 430. The Supreme

13 A-2058-15T3

Court held that "a trial court [after considering multiple

factors] may dismiss an indictment with prejudice after

successive juries have failed to agree on a verdict when it

determines that the chance of the State's obtaining a conviction

upon further retrial is highly unlikely." Id. at 435.2

The Court invoked Abbati in stating that it "would reflect

an appropriate exercise" of the court's inherent authority to

dismiss an indictment where the grand jury process was tainted

by an unconstitutional criminal investigation. State v. Sugar,

2

In deciding whether to dismiss an indictment with prejudice

after successive mistrials, a trial court must consider:

(1) the number of prior mistrials and the

outcome of the juries' deliberations, so far

as is known; (2) the character of prior

trials in terms of length, complexity, and

similarity of evidence presented; (3) the

likelihood of any substantial difference in

a subsequent trial, if allowed; (4) the

trial court's own evaluation of the relative

strength of each party's case; and (5) the

professional conduct and diligence of

respective counsel, particularly of the

prosecuting attorney. The court must also

give due weight to the prosecutor's decision

to reprosecute, assessing the reasons for

that decision, such as the gravity of the

criminal charges and the public's concern in

the effective and definitive conclusion of

criminal prosecutions. Conversely, the court

should accord careful consideration to the

status of the individual defendant and the

impact of a retrial upon the defendant in

terms of untoward hardship and unfairness.

[Abbati, 99 N.J. at 435.]

14 A-2058-15T3

100 N.J. 214, 245 n.4 (1985) (citing Abbati, 99 N.J. at 418).3

We therefore surmise that the grand jury process is subject to

review based on the judiciary's inherent authority to assure

fundamental fairness.

B.

Turning to the issue of resubmission of cases to successive

grand juries, we are aware of no New Jersey statute or common

law precedent — and defendant points to none — that

categorically bars a prosecutor from choosing to resubmit a case

to a new grand jury after one has previously voted a no bill, or

requires the State to present new evidence as a condition of

resubmission. Consequently, we find no basis for the trial

court's pronouncement of the "multiple presentation rule" that

conditions resubmission on the presentation of new evidence.

The Attorney General has not established any standard

limiting resubmission. The manual promulgated by the Attorney

General and the County Prosecutors Association provides:

Nor does the fact that a grand jury has

considered the matter and voted a no-bill

legally bar re-presentation of the matter to

the grand jury, because the return of a no-

bill reflects nothing more than the fact

that a particular grand jury at a particular

time found that the proofs presented to it

3

In Sugar, the Court suggested that the State could "proceed

anew" with evidence "unsullied by the constitutional violations

that occurred." 100 N.J. at 245 n.4.

15 A-2058-15T3

were insufficient to establish the

commission of a crime or the participation

in a crime of a particular accused.

[New Jersey Grand Jury Manual 95 (Dep't of

Law & Pub. Safety et al. eds., 4th ed.

1993).]4

A trial court addressed the issue of resubmission in a

civil case. Rosetty v. Twp. Comm. of Hamilton Twp., 82 N.J.

Super. 340, 349 (Law Div. 1964), aff'd o.b., 96 N.J. Super. 66

(App. Div. 1967). In holding that a no bill was not proof of a

person's innocence, the trial court noted, "[T]he same grand

jury, or its successor, might properly, within the period of the

statute of limitations, review and reconsider the charges and

return an indictment against an accused." Ibid. However, the

statement in Rosetty is not the end of our analysis, because the

statement was not essential to the court's decision, and the

court did not address whether there are limitations on

resubmission.

The prevailing view in other jurisdictions is that there is

no general limitation on a prosecutor's power to resubmit

matters to a second grand jury after failing to secure an

indictment from the first. See Wayne R. LaFave et al., Criminal

4

By contrast, the United States Attorney's Manual, "suggests

that representment not occur 'in the absence of additional or

newly discovered evidence or a clear circumstance of a

miscarriage of justice.'" United States. v. Pabian, 704 F.2d

1533, 1538 (11th Cir. 1983).

16 A-2058-15T3

Procedure, § 15.2(h) (4th ed. 2015); Sara Sun Beale et al.,

Grand Jury Law & Practice, § 8:6 at 8-56 to 8-65 (2d ed. 2015).

In particular, "[t]he longstanding federal rule is that

resubmissions are permissible, without court approval, even when

the prosecutor presents no additional evidence to the second

grand jury." LaFave, § 15.2(h) at 535.

The United States Supreme Court has declared, "[T]he power

and duty of the grand jury . . . is not exhausted or limited by

adverse action taken by a previous grand jury, and . . . a

United States district attorney may present, without leave of

court, charges which a previous grand jury has ignored." Ex

parte United States, 287 U.S. 241, 250-51 (1932); see also

United States v. Thompson, 251 U.S. 407, 413-15 (1920)

(rejecting the argument that the prosecutor needed judicial

approval to resubmit charges to a new grand jury upon virtually

the same evidence that failed to persuade a prior grand jury);

United States v. Claiborne, 765 F.2d 784, 794 (9th Cir. 1985)

(holding "that the prosecution's presentation of evidence to

three grand juries . . . violated no procedural rule or

judicially-imposed limits on a grand jury's investigatory role,"

where the third grand jury voted to indict after the first two

did not). "The Double Jeopardy Clause of the Fifth Amendment

does not bar a grand jury from returning an indictment when a

17 A-2058-15T3

prior grand jury has refused to do so." United States v.

Williams, 504 U.S. 36, 49 (1992) (first citing Ex parte United

States, 287 U.S. at 250-51; then citing Thompson, 251 U.S. at

413-15).

Statutes in a minority of states require judicial approval

of a second presentment. LaFave, § 15.2(h) at 536; see also

Beale, § 8:6 at 8-56 n.1, 8-60 n.10 (listing states that

restrict submission by statute or court rule). Typically, those

courts have required a showing of newly discovered evidence.

LaFave, § 15.2(h) at 536-37. For example, in People v. Ladsen,

444 N.Y.S.2d 362, 364-66 (Sup. Ct. 1981), a New York trial court

applied N.Y. Crim. Proc. Law § 190.75 (1977), which states that

a dismissed charge may not be resubmitted to a grand jury

"unless the court in its discretion authorizes or directs the

people to resubmit such charge to the same or another grand

jury." The court held that the presentation of new evidence

justified the resubmission. Ladsen, 444 N.Y.S.2d at 365-66.

Alternatively, at least one state – Georgia – has statutorily

imposed a fixed limit of two presentations, except newly

discovered evidence or fraud by the defendant may justify a

third. See Ga. Code Ann. § 17-7-53 (2018). However, New Jersey

has not adopted a statutory restriction on resubmission.

18 A-2058-15T3

The underlying rationale of the federal approach is that

"the power and duty of the grand jury to investigate . . . is

continuous and is therefore not exhausted or limited by adverse

action [previously] taken by a grand jury or by its failure to

act." LaFave, §15.2(h) at 536 (quoting Thompson, 251 U.S. at

413). Requiring judicial approval of resubmission would

undermine "the power of grand juries, and the right of the

Government to initiate prosecutions for crime . . . ."

Thompson, 251 U.S. at 415.

Also, completely denying a prosecutor the right to resubmit

would deprive the prosecutor of the benefit of a continuing

investigation that produces additional evidence of guilt. See

Beale, § 8:6 at 8-57. A failure to secure an indictment because

of insufficient evidence may occur "because the prosecutor for

strategic reasons decided not to reveal the evidence it had

already gathered." Andrew Leipold, Why Grand Juries Do Not (and

Cannot) Protect the Accused, 80 Cornell L. Rev. 260, 291 (1995);

see also Beale, § 8:6 at 8-57 (noting that barring resubmission

would penalize the government for presenting "an abbreviated

version of [its] case for the sake of efficiency and

convenience"). Preventing a prosecutor from resubmitting would

also deny a means of correcting a grand jury's "erroneous

19 A-2058-15T3

refusal" to indict, which "is not subject to judicial review."

Ibid.5

On the other hand, "allowing re-submissions prevents the

grand jury from acting as an effective check on the prosecutor,"

and disincentivizes the prosecution from presenting its most

complete case in what would be its first and only chance for an

indictment. Ric Simmons, Re-examining the Grand Jury: Is There

Room for Democracy in the Criminal Justice System?, 82 B.U. L.

Rev. 1, 19 (2002). Commentators have noted how infrequently

grand juries actually screen out charges in the first place.

See, e.g., Leipold, 80 Cornell L. Rev. at 271-72. To permit a

prosecutor to resubmit charges, even in those rare instances, at

least absent new and materially different evidence, may dilute

the grand jury's fundamental role, as stated in Hogan, 144 N.J.

at 228 (quoting Murphy, 110 N.J. at 29), "to 'protect[] the

innocent from unfounded prosecution.'"

5

For example, if the target of a grand jury presentment enjoys

broad public support, it may be difficult to secure an

indictment although the State's evidence is strong. See

Leipold, 80 Cornell L. Rev. at 309 (noting that "a refusal to

indict may also be based on prejudice against the crime victim,

bias in favor of the target, or other illegitimate reasons").

Preserving discretion to resubmit enables the prosecution to

combat such grand jury predisposition. Cf. People v. Dykes, 449

N.Y.S.2d 284, 288 (App. Div. 1982) (stating although

resubmission should occur sparingly, it is appropriate when a

grand jury "fail[s] to give a case a complete and impartial

investigation").

20 A-2058-15T3

Just as "repeated attempts to convict an individual . . .

enhanc[es] the possibility that even though innocent he may be

found guilty," Abbati, 99 N.J. at 430 (quoting Green v. United

States, 355 U.S. 184, 187-88 (1957)), repeated resubmissions to

a grand jury enhances the possibility that an innocent person

will be indicted. See Niki Kuckes, The Useful, Dangerous

Fiction of Grand Jury Independence, 41 Am. Crim. L. Rev. 1, 49

(2004) (contending that the prosecutor's power, rather than the

grand jury's, is enhanced by the rule that "[t]he prosecutor is

not bound by one grand jury panel's decision to reject an

indictment, but can simply seek the same indictment from another

grand jury panel").

Some courts have indicated that, even in the absence of

statutory limitations, the power to resubmit is not boundless

nor immune from judicial control. In Commonwealth v. McCravy,

the Massachusetts Supreme Judicial Court stated it "would bear

consideration" whether "submission of the same evidence to

multiple grand juries would be inconsistent" with the purpose of

grand juries "to shield 'the innocent against hasty, malicious

and oppressive public prosecutions.'" 723 N.E.2d 517, 522

(Mass. 2000) (quoting Jones v. Robbins, 74 Mass. 329, 344

(1857)). However, the court held that "[r]esubmission of the

same evidence to two grand juries present[ed] no such

21 A-2058-15T3

difficulty." Ibid. The court in In re United States, 441 F.3d

44, 63 (1st Cir. 2006), declined to "decide whether there can be

some form of impermissible grand jury shopping which would

warrant court inquiry."

Our Supreme Court has parted with the United States Supreme

Court's more limiting view of judicial oversight of grand jury

proceedings. See Hogan, 144 N.J. at 231, 236-37 (rejecting the

view in Williams, 504 U.S. at 55, and holding that the

prosecutor is obliged to present clearly exculpatory evidence to

a grand jury). Consistent with that independent view, as well

as the principles enunciated in Hogan, Leonardis, and Abbati, we

are confident our Court would place some limits on successive

resubmissions, in order to respect the grand jury's screening

function to shield the innocent; control the abusive exercise of

prosecutorial discretion; and assure defendants fundamental

fairness.

C.

However, we need not map the boundaries of those limits in

this case. Mindful of the respective roles of the grand jury,

prosecutor, and court, we conclude the trial court did not err

in refusing to dismiss the indictment returned by the third

grand jury. We are satisfied that the State presented new and

material evidence to that third panel. Notably, the Court in

22 A-2058-15T3

Abbati addressed the court's exercise of inherent authority to

dismiss an indictment with prejudice to prevent retrials "where

no new evidence exists." 99 N.J. at 430. Condon's opinion

testimony not only corroborated Riedel's testimony, but in some

respects supplemented it, by providing greater details as to the

significance of the tools and equipment that defendant and his

father possessed.

Moreover, each panel fulfilled a fundamental purpose of the

grand jury. The first protected defendant from what fewer than

twelve grand jurors concluded was a well-founded prosecution,

although the second grand jury found sufficient evidence to

indict. See R. 3:6-8 (requiring concurrence of twelve or more

jurors in return of indictment); R. 3:6-1 (requiring grand

juries not exceeding twenty-three members). The third grand

jury, based on expanded evidence, brought to trial someone there

was probable cause to believe committed a crime.

Also, defendant presents no evidence of an abuse of

prosecutorial discretion. He exaggerates the record in

asserting "the prosecutor kept presenting the same evidence to

different grand juries until a grand jury produced a true bill."

The State obtained an indictment upon just the second

presentment. The trial court dismissed the indictment on its

own motion, based on its understanding that the State was

23 A-2058-15T3

obliged to present new evidence. The State submitted the matter

to a third grand jury, adding a witness, evidently to comply

with the judge's view of the law. Two out of three grand juries

found, based on the evidence presented, there was probable cause

defendant committed the crimes charged. This is not a situation

in which a prosecutor "grand jury shopped" a weak case to

multiple grand juries until, finally, a compliant panel was

found.

Given the substantial weight of the State's evidence, and

the significance of the crimes alleged, we discern no abuse of

the prosecutor's broad discretion, let alone a patent and gross

abuse of discretion, in persisting to seek an indictment against

defendant after the first, and only the first, grand jury

declined to return one. See Leonardis, 73 N.J. at 382; Childs,

242 N.J. Super. at 129. In light of the circumstances, that

conclusion would apply, even absent the new evidence presented

to the third grand jury.

The strength of the State's case, and presentation of new

evidence, would also negate finding that resubmission deprived

defendant of fundamental fairness. See Abbati, 99 N.J. at 435

(predicating dismissal of indictment with prejudice after

successive mistrials "when [the court] determines that the

chance of the State's obtaining a conviction upon further

24 A-2058-15T3

retrial is highly unlikely"). Defendant also has not proved

that the resubmissions here caused him undue "anxiety, vexation,

embarrassment and expense. . . ." Id. at 430.6

Finally, defendant does not expressly allege that the

prosecutor's persistence was motivated by actual vindictiveness.

Certainly, no presumption of vindictiveness is appropriate. The

presumption applies when the State seeks superseding enhanced

charges apparently to retaliate against a defendant who

successfully exercised his or her appellate rights. See

Blackledge v. Perry, 417 U.S. 21, 27-28 (1974). "The essence of

the concept of prosecutorial vindictiveness is a violation of

due process by retaliating against a defendant for exercising a

legal right." State v. Gomez, 341 N.J. Super. 560, 571 (App.

Div. 2001). "[N]o presumption of vindictiveness arises in the

pretrial stage." Id. at 573. Although a due process violation

can be established by "affirmative proof of actual

vindictiveness," id. at 578, no such proof was offered here.

In sum, we reject defendant's argument that resubmission in

this case warrants dismissal.

6

We need not tailor the Abbati factors, see supra note 2, for

application to this case, and we leave it to other courts to

determine whether and how they should apply the factors to

future cases. Given the presentation of new evidence, the

strength of the State's case, and the lack of apparent negative

impact on defendant, we discern no deprivation of fundamental

fairness.

25 A-2058-15T3

D.

We also reject defendant's contention that Riedel's passing

reference to defendant's admission of "some prior criminal

history" tainted the grand jury. Riedel explained what prompted

him to pat down defendant for weapons. He softened defendant's

actual admissions of prior weapons-related arrests.

No doubt, trial testimony of such prior bad acts would be

problematic, even if only offered to demonstrate why Riedel

patted down defendant, and not to prove defendant's disposition

to commit crimes, and conforming conduct. See N.J.R.E. 404(b);

State v. Cofield, 127 N.J. 328, 338 (1992) (establishing test

for admissibility of prior bad act evidence).7 However, "we have

upheld the validity of indictments by grand juries presented

with a variety of evidence that would have been inadmissible at

trial." Grant, 361 N.J. Super. at 357. That includes prior bad

act evidence. See State v. Scherzer, 301 N.J. Super. 363, 428-

29 (App. Div. 1997); State v. Engel, 249 N.J. Super. 336, 361

(App. Div. 1991). Riedel's testimony did not deprive defendant

of a fundamentally fair grand jury proceeding.

7

A court would need to weigh the prejudice of disclosure of a

prior criminal history with its probative value. However,

N.J.R.E. 404(b) does not apply in the grand jury. See In re

Grand Jury Subpoena Issued to Galasso, 389 N.J. Super. 281, 292

(App. Div. 2006) (stating the grand jury functions "free from

the constraints of the rules of evidence and procedure").

26 A-2058-15T3

III.

[At the direction of the court, the

published version of this opinion omits the

court's discussion of the trial court's

denial of the motion to suppress evidence.

See R. 1:36-3.]

IV.

[At the direction of the court, the

published version of this opinion omits the

court's discussion of the trial court's

sentence of defendant. See R. 1:36-3.]

V.

Affirmed as to the conviction. Remanded for reconsideration

of the minimum period of parole ineligibility. We do not retain

jurisdiction.

27 A-2058-15T3