NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3600-13T2 A-4230-13T1
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, June 15, 2016
v. APPELLATE DIVISION
JAMES E. JONES and LIKISHA JONES,
Defendants-Appellants,
and
GODFREY J. GIBSON,
Defendant.
Submitted February 24, 2016 – Decided June 15, 2016
Before Judges Alvarez, Haas, and Manahan.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13-01-0049.
Christopher T. Campbell, attorney for appellant Likisha Jones in A-3600-13.
Joseph E. Krakora, Public Defender, attorney for appellant James E. Jones in A-4230-13 (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey in A-3600-13 (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey in A-4230-13 (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
The opinion of the court was delivered by
ALVAREZ, P.J.A.D.
Co-defendants Likisha Jones1 and James E. Jones appeal2
their convictions, contending that the five-year statute of
limitations bars their prosecution. See N.J.S.A. 2C:1-6(b)(1).
The matters are consolidated for decision as they involve one
course of events, one indictment, and raise duplicate claims of
error. Each defendant entered a guilty plea to third-degree
conspiracy to hinder apprehension and/or obstruct the
administration of law, N.J.S.A. 2C:5-2, 2C:29-3, and/or 2C:29-1,
and third-degree hindering apprehension, N.J.S.A. 2C:29-3(a).
They were sentenced on February 28, 2014, to two years'
probation. The remaining counts of the indictment were
dismissed as to these defendants.3
1 We refer to members of the Jones family by their first names for the sake of clarity. 2 Godfrey Gibson, the third co-defendant, is not involved in the appeal. 3 Only Gibson was indicted in two counts of second-degree hindering.
2 A-3600-13T2 Defendants contend that the Law Division judge erred in his
application of the DNA exception to the statute of limitations.
See N.J.S.A. 2C:1-6(c). He denied their pre-plea motion to
dismiss the indictment on that basis. Although we agree with
this contention, we also conclude that defendants' conduct over
ten years made the conspiracy a continuing offense, and
therefore the statute of limitations did not bar the prosecution
of that crime.
We now reverse the denial of the motion to dismiss the
indictment as to the counts which charged fourth-degree
tampering with evidence, N.J.S.A. 2C:28-6(1), hindering, and
fourth-degree obstruction, N.J.S.A. 2C:29-1(a). We affirm the
denial of the motion, albeit for different reasons,4 as to the
conspiracy count.
Because a conspiracy to obstruct is a fourth-degree crime,
the conviction also becomes a fourth-degree offense. See
N.J.S.A. 2C:5-4(a). Because of this anomalous outcome, the
dismissal of only one of defendants' two convictions and the
reduction in the degree of the remaining offense, they have the
option of withdrawing from their guilty pleas; the prosecution
4 "[A] correct result predicated upon an incorrect basis does not preclude an affirmance of [a] ruling." Velazquez v. Jiminez, 336 N.J. Super. 10, 43 (App. Div. 2000), aff'd, 172 N.J. 240 (2002).
3 A-3600-13T2 would then proceed solely on the conspiracy count. In any
event, the matter is remanded for resentencing just on the
conspiracy charge.
I.
Defendants do not dispute the grim, tragic facts
surrounding the death of Jon-Niece Jones detailed by the
investigating officer before the grand jury on December 17,
2012.5 His testimony essentially reiterated his interview with
Iyonna Jones, the victim's sister. He also repeated information
supplied by defendants. We recount those facts here.
As a result of Iyonna's disclosures and DNA testing of
herself and her father, the authorities were able to identify a
child's charred bones, discovered in 2005 in an isolated wooded
spot near the New Jersey Turnpike. The DNA sample obtained from
Jon-Niece's father was also a match; he was confirmed as the
father of the victim.
Although Jon-Niece's birth was recorded, she never attended
school nor received medical or dental care. Over the course of
her life, her mother, Elisha Jones, neglected, physically
abused, and starved her.
5 The events are principally drawn from the grand jury presentment.
4 A-3600-13T2 On August 14, 2002, then nine-year-old Jon-Niece was
staying with her mother and then ten-year-old Iyonna at her
maternal aunt Likisha's home in New York City. Sometime that
day, Jon-Niece collapsed after being fed oatmeal and Elisha
returned her to a bedroom.
During the night, Iyonna remembers being awakened by
Elisha, who asked her for a garbage bag. Her mother then
disappeared into Jon-Niece's bedroom. The following morning
Elisha and Jon-Niece were gone.
Elisha left a note informing Likisha that Jon-Niece had
stopped breathing and that Elisha had gone back to her home in
Staten Island with the body. Iyonna remembered that after
Likisha found the note, she called James to come to the
apartment immediately. James is Likisha's brother, and Jon-
Niece and Iyonna's uncle.
Iyonna also remembered Likisha speaking to Elisha on the
phone, and that Elisha was frightened, "didn't know what to
do[,]" and stated that Jon-Niece "was sitting in a bucket [and]
bag, along with cement and gasoline." When Elisha said she
planned to burn down the building to get rid of the body,
Likisha told her to "hold off" and that "they" would go to
Staten Island. Iyonna recalled that Likisha, James, and
Likisha's husband Godfrey Gibson drove to Elisha's apartment.
5 A-3600-13T2 James admitted that he was in the car when Gibson picked up
Elisha, who placed a green plastic bin in the back of Gibson's
vehicle. After travelling from Staten Island to a remote area
in New Jersey, James helped Elisha remove the bin —— which
smelled of gasoline —— from the car. He did not accompany her
into the woods, but while he was waiting, he saw a fire behind
the trees. James told the investigator that "the only thing
that kept him sane this entire time was that he did not see the
body."
A few days later, Likisha, Gibson, and James held a family
meeting at which they directed Iyonna to say Jon-Niece was with
her father if she was asked about her. Elisha died shortly
after Jon-Niece, in December 2002.
Iyonna remembered arguing with Likisha approximately four
years later and telling her that she was going to report Jon-
Niece's death. Likisha struck Iyonna, threatening that she too
would go to jail if she reported it.
When Iyonna was eighteen, James told her that Jon-Niece's
body had been burned and hidden in a dark area somewhere in New
Jersey. He said he had fallen asleep in the car and was unsure
of the exact location, but that "they" put the body in a bucket,
poured cement and water over it, and set it on fire.
6 A-3600-13T2 Likisha's recollection was somewhat at variance with
Iyonna's. Likisha remembered that after Jon-Niece died during
the night, Elisha returned to her home in Staten Island. Elisha
left a note saying the child had stopped breathing, that she was
not coming back, and that she had used a laundry or shopping
cart to remove the body. When Likisha tried to contact Elisha,
she did not answer the phone.
Likisha recalled Elisha returning to the apartment in
Manhattan some time later, and that she spoke to Gibson outside.
Gibson, James, and Elisha took the car and were gone for several
hours. The men returned without her. When Likisha next talked
to her sister, Elisha told her to "stay out of her life."
After Elisha died, Likisha found another note, confirming
that Jon-Niece was dead. While in the process of cleaning out
Elisha's apartment, Likisha found a bag of cement and a shovel
in a closet.
In 2008, James watched an "America's Most Wanted" episode
titled "Baby Bones." As the program began, James phoned Likisha
to turn on her television. Both were upset, as the segment was
clearly about Jon-Niece. At that point, Likisha told James
about the letter Elisha had left behind.
On August 23, 2012, as the investigating officer who
testified before the grand jury arrived in Manhattan for his
7 A-3600-13T2 first meeting with Gibson and Likisha, Iyonna called him. She
said Gibson had just phoned and threatened to kill her if he
found out that she had spoken to the police.
When initially interviewed, James denied any involvement,
insisting Jon-Niece was with her father. When he eventually
acknowledged that the child was dead, he said Likisha was not in
the car when Jon-Niece's body was driven to New Jersey. Both he
and Likisha claimed that she stayed behind to watch the other
children in the home, including Iyonna.
II.
Likisha and James's pretrial motions to dismiss the
indictment were based on the five-year statute of limitations.
They argued that all the statutory elements of the crimes were
complete as of August 2002 and that therefore the indictment had
to be dismissed.
N.J.S.A. 2C:1-6(c), the DNA exception, provides that the
applicable statute of limitations
starts to run on the day after the offense is committed, except that when the prosecution is supported by physical evidence that identifies the actor by means of DNA testing or fingerprint analysis, time does not start to run until the State is in possession of both the physical evidence and the DNA or fingerprint evidence necessary to establish the identification of the actor by means of comparison to the physical evidence.
8 A-3600-13T2 The Law Division judge agreed with the State's position
that the DNA match which identified the victim tolled the
running of the statute. He expanded the scope of the exception
to include "instances when the identification of a victim
through DNA analysis can be used to determine the identity of a
wrongdoer." Thus he opined that the statute of limitations did
not begin to run until 2012, when the remains were identified
and the indictment returned. The judge further observed that
"both parties acknowledge[d] that the 'continuing course of
conduct' exception [was] inapplicable to the alleged offenses."
Likisha's points on appeal are:
I. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BECAUSE THE DNA EXCEPTION TO THE STATUTE OF LIMITATIONS PURSUANT TO N.J.S.A. 2C:1-6[(c)] IS NOT APPLICABLE TO HER CASE.
a. The plain and unambiguous meaning of N.J.S.A. 2C:1-6[(c)] is that DNA from a suspect must match DNA evidence found at the scene.
b. Assuming that the DNA exception to N.J.S.A. 2C:1-6[(c)] is ambiguous or subject to multiple interpretations, the legislative history reveals intent to require a match of DNA samples from a suspect.
c. Assuming the statute of limitations does not require at least one DNA sample to have come from the defendant, the results of
9 A-3600-13T2 the comparison of physical evidence to DNA evidence was not necessary to establish the identity of Likisha Jones.
II. ASSUMING THE DEFENDANT'S PROSECUTION WAS NOT BARRED BY THE STATUTE OF LIMITATIONS, THE STATE FAILED TO PRESENT A PRIMA FACIE CASE AGAINST LIKISHA JONES TO THE GRAND JURY.
James's point on appeal is:
POINT I THIS PROSECUTION WAS BARRED BY THE STATUTE OF LIMITATIONS, AND THE DNA TOLLING PROVISION IN N.J.S.A. 2C:1-6[(c)] DOES NOT APPLY.
III.
Before any discussion of the issues, we must address the
State's "concession," made in its brief to the trial judge,
regarding whether any of the offenses were a continuing course
of conduct that by definition would fall outside the limitations
statute. For purposes of appellate review, that concession is
not binding. See State v. Josey, 290 N.J. Super. 17, 32 (App.
Div.) ("our judgments are precedents, and the proper
administration of criminal law cannot be left merely to the
stipulation of parties[.]") (quoting Young v. United States, 315
U.S. 257, 259, 62 S. Ct. 510, 511, 86 L. Ed. 832, 835 (1942)),
certif. denied, 146 N.J. 497 (1996); State v. Elysee, 159 N.J.
Super. 380, 384 (App. Div. 1978) ("Neither the State nor the
10 A-3600-13T2 court is bound by a stipulation of a matter of law which is
contrary to controlling law on the subject.").
IV.
Now turning to defendants' central argument, it is well-
established that 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) (quoting State v. Perry 124 N.J.
128, 168 (1991)). Although we defer to the trial court's
"exercise of . . . discretionary power" in deciding whether to
dismiss an indictment, State v. Warmbrun, 277 N.J. Super, 51, 60
(App. Div. 1994), certif. denied, 140 N.J. 277 (1995), such
deference is not required when we are asked to review a "trial
court's interpretation of the law and the legal consequences
that flow from established facts[,]" Manalapan Realty, L.P. v.
Twp. Comm., 140 N.J. 366, 378 (1995). An indictment returned
after the expiration of the five-year statute of limitations
would clearly be "manifestly deficient or palpably defective."
The statute of limitations in a criminal case is "an
absolute bar to the prosecution of the offense." State v.
Cagno, 211 N.J. 488, 506 (2012) (quoting State v. Short, 131
N.J. 47, 55 (1993)), cert. denied, ___ U.S. ___, 133 S. Ct. 877,
184 L. Ed. 2d 687 (2013). It is designed to protect a defendant
11 A-3600-13T2 "from being put to his defense after memories have faded,
witnesses have died or disappeared, and evidence has been lost."
Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314, 65 S. Ct.
1137, 1142, 89 L. Ed. 1628, 1635 (1945); see also State v.
Diorio, 216 N.J. 598, 612 (2014) (statutes of limitations
"protect individuals from charges when the basic facts have
become obscured by time.").
On appeal, as they did in the Law Division, Likisha and
James contend the five-year limitation mandates dismissal of the
indictment because the DNA exception applies only to those cases
in which DNA matches the "actor." In contrast, in this case,
DNA from family members matched the victim. Nothing about those
results inherently suggested the identity of the perpetrators
whose conduct led to the child's death, or the destruction of
her remains.
Certainly the DNA comparison identified Jon-Niece,
corroborated Iyonna's story, and in those important respects
advanced the prosecution. But the language in the statute
creating an exception for DNA evidence does not encompass its
use in order to identify persons other than the actor, even if
the match may ultimately lead investigators to the perpetrator
of the crime. The dispositive question is whether the DNA
evidence itself identifies the perpetrator.
12 A-3600-13T2 "[W]hen the prosecution is supported by physical evidence
that identifies the actor by means of DNA testing . . . time
does not start to run until the State is in possession of both
the physical evidence and the DNA . . . necessary to establish
the identification of the actor by means of comparison to the
physical evidence." N.J.S.A. 2C:1-6(c). Any grammatical,
logical construction of this language leads inescapably to the
conclusion that the DNA in question must be that of the person
or persons who committed the offense. See State v. Rangel, 213
N.J. 500, 509 (2013) (quoting DiProspero v. Penn, 183 N.J. 477,
492 (2005)) (statutory interpretation requires "looking at the
statute's plain language, giving words 'their ordinary meaning
and significance.'"). The statute employs the term "actor" to
mean the perpetrator of the crime. State v. Twiggs, ___ N.J.
Super. ___, ___ (App. Div. 2016) (slip op. at 9).
In Twiggs, Gary Twiggs and Dillon Tracy were charged with
an armed robbery committed on June 16, 2009. Id. at 2-3.
Despite DNA material having been timely sent to the State Police
laboratory for analysis, no match was found until July 2, 2014,
and it identified Tracy, but not Twiggs. Tracy later implicated
Twiggs in the crime. Id. at 3-4. On December 2, 2014, both men
were indicted, months after the statute of limitations had run.
13 A-3600-13T2 In Twiggs, we observed that were the prosecution to go
forward based solely on the confession of another, it "would []
override the entire limitations period for any party accused of
a crime when any single defendant [directly identified through
DNA] names another party in a confession." Id. at 10. Unlike
when a perpetrator is identified by DNA evidence, a prosecution
based solely on the word of another who is identified by DNA
raises the precise jeopardy the statute is intended to avoid:
the difficulties in mounting a defense "when the basic facts
have become obscured by time." See Diorio, supra, 216 N.J. at
612.
Similarly, the use of DNA taken from innocent family
members to identify the victim does not distinguish the case
from one in which, years after a crime, a person who had
previously remained silent decides to come forward and make an
accusation. In this case, only non-DNA, purely circumstantial
evidence establishes the identity of the perpetrators.
Therefore, there is no meaningful distinction between this case
and any other in which disclosures are made after the statute
has expired that point the finger at an alleged perpetrator. To
suggest a distinction exists would eliminate in one stroke the
protection found in the statute of limitations. The use of a
14 A-3600-13T2 DNA match to someone other than the perpetrator does not come
within the exception.
V.
Next we consider whether the indictment survives under a
"continuing offense" analysis, assessing each count in turn.
Our Supreme Court has recently reiterated the distinction
between crimes that can be classified "as either a discrete act
or a continuing offense." Diorio, supra, 216 N.J. at 614. "'A
discrete act' is one that occurs at a single point in time
. . . . A continuing offense involves conduct spanning an
extended period of time and generates harm that continues
uninterrupted until the course of conduct ceases." Ibid. The
New Jersey Code of Criminal Justice includes a presumption
against continuous offenses; however, that presumption is
overcome if the statute defining the offense includes conduct
which persists over time. Id. at 615-16. If the scheme that
constitutes the offense is one which "play[s] out over the
course of many days, weeks, months, or even years[,]" then it is
a course of conduct. See id. at 618. The statute of
limitations is tolled until the time the last act occurs in the
series of events constituting the scheme. Id. at 613. The
statute of limitations applies, obviously, if the continuing
offense exception does not.
15 A-3600-13T2 Likisha and James were charged with fourth-degree tampering
with physical evidence. See N.J.S.A. 2C:28-6. The indictment
alleges the offense occurred when defendants removed "the
deceased body of Jon-Niece Jones with purpose to impair its
verity or availability in . . . [an] investigation[.]" The
indictment tracks the statute which reads:
A person commits a crime of the fourth degree if, believing that an official proceeding or an investigation is pending or about to be instituted, he:
(1) Alters, destroys, conceals or removed any article, object . . . or other thing of physical substance with purpose to impair its verity or availability in such proceeding or investigation. . . .
[N.J.S.A. 2C:28-6(1).]
The offense of tampering falls within the category of a
discrete offense. Defendants, "at a single point in time[,]"
assisted Elisha in destroying and concealing Jon-Niece's body.
See Diorio, supra, 216 N.J. at 614.
The statutory language defining the offense indicates that
the crime is the conduct necessary to destroy or conceal a
physical item so as to "impair" a prosecution. In this case,
after driving Elisha and her daughter's body to New Jersey,
nothing further was required. The elements of N.J.S.A.
2C:28-6(1) were completed in 2002. Because the crime occurred
16 A-3600-13T2 more than five years prior, the charge should have been
dismissed pursuant to the statute of limitations.
Defendants were also charged with hindering in that they
attempted to suppress the investigation, including by tampering
with a witness, Iyonna, "which might aid in the discovery or
apprehension of Elisha Jones or in the lodging of a charge
against her." N.J.S.A. 2C:29-3(a) provides that "[a] person
commits an offense if, with purpose to hinder the . . .
prosecution of another for an offense[,]" he or she tampers with
a witness. Elisha died in December 2002. Since no prosecution
against Elisha could proceed after her death, that element of
the statute could not be met and this charge should have also
been dismissed.
In the indictment, the State alleged that defendants
obstructed the administration of law by their intimidation of
Iyonna. The obstruction statute states:
a. A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act.
[N.J.S.A. 2C:29-1(a).]
17 A-3600-13T2 The first act of obstruction occurred in 2002 shortly after
Jon-Niece's death, when the adults told Iyonna to lie if she
were asked about her sister's whereabouts. Likisha arguably
committed a second act of obstruction in 2006, when Iyonna was
fourteen, when she again threatened her in order to keep her
quiet. James did nothing further after 2002.
Although Iyonna continued to be "intimidated," and in that
sense the harm continued, neither of these defendants took
action after 2006. Therefore the obstruction charges must also
be dismissed as barred by the five-year limitation term. The
focus under the obstruction statute is the conduct engaged in by
the actor, not merely the effect.
VI.
Finally, we turn to the charge of conspiracy. A person is
guilty of conspiracy if, with the purpose of "promoting or
facilitating its commission," he or she agrees with others to
engage in a crime, or agrees to aid in the planning, attempt, or
solicitation to commit a crime. N.J.S.A. 2C:5-2(a).
Conspiracy is "a continuing course of conduct which
terminates when the crime or crimes which are its object are
committed or the agreement that they be committed is abandoned
by the defendant and by those with whom he conspired[.]"
N.J.S.A. 2C:5-2(f)(1). "If the conspiracy is one that
18 A-3600-13T2 contemplates a continuity of purpose and a continued performance
of acts, it can be inferred to exist until there has been an
affirmative showing that it has terminated." Cannel, New Jersey
Criminal Code Annotated, comment 12 on N.J.S.A. 2C:5-2 (2015-
2016) (citing State v. Cagno, 211 N.J. 488, 511-12 (2012)); see
also State v. Savage, 172 N.J. 374, 403 (2002) ("a conspiracy
may continue beyond the actual commission of the object of the
conspiracy if it is shown that a conspirator enlisted false
alibi witnesses, concealed weapons, or fled in order to avoid
apprehension.").
In State v. Taccetta, in deciding whether N.J.R.E.
803(b)(5) authorized the admission of a co-conspirator's
statement, we said that just as "a defendant is liable for the
acts of co-conspirators even though defendant lacks knowledge of
those acts, the statements of co-conspirators must be admissible
against a defendant when they are in furtherance of the
conspiracy." 301 N.J. Super. 227, 253 (App. Div.), certif.
denied, 152 N.J. 187, 152 N.J. 188 (1997). Additionally, "once
the prosecution demonstrated the defendant's involvement in a
conspiracy, the defendant's continued involvement is presumed
until the defendant proves termination or withdrawal." Ibid.
This includes statements relating to past events where necessary
to "prompt one not a member of the conspiracy to respond in a
19 A-3600-13T2 way that furthers the goals of the conspiracy." Ibid. (citing
United States v. Flores, 63 F.3d 1342, 1377 (5th Cir. 1995)).
Therefore, as to the conspiracy, because the statute and
caselaw define it as a continuing offense, the question we must
answer is "when the last act . . . occurred." Diorio, supra,
216 N.J. at 613.
In relevant part, the indictment alleged that defendants
unlawfully agreed to commit the crimes "of . . . [o]bstructing
the [a]dministration of [l]aw[.]" The overt acts specified in
the indictment, however, focused on the tampering and hindering
conduct: the transportation of Jon-Niece's body from New York
to New Jersey, the destruction of her body, and the concealment
of her remains "in a secluded area nearby the New Jersey
Turnpike[.]"
But "the State may prove overt acts other than those
alleged in the indictment." State v. Klausner, 4 N.J. Super.
427, 431 (App. Div.) (citing State v. Ellenstein, 121 N.J.L.
304, 317 (Sup. Ct. 1938)), certif. denied, 3 N.J. 378 (1949);
see also United States v. Schurr, 794 F.2d 903, 907 n.4 (3rd
Cir. 1986) ("There would appear to be no reason that the
government could not satisfy its requisite showing under the
statute of limitations by means of an overt act not listed in
the indictment."); United States v. Norris, 753 F. Supp. 2d 492,
20 A-3600-13T2 519 (E.D. Pa. 2010) (alteration in original) ("It is well
settled that the government can prove overt acts not listed in
the indictment, so long as there is no prejudice to the
defendants thereby.") Pursuant to N.J.S.A. 2C:5-2(d), overt
acts keep a conspiracy alive so long as committed "by a person
with whom [the person charged] conspired."
With the exception of the 1938 Ellenstein decision, the
cases we have cited above regarding the specification of overt
acts in an indictment consider the issue in the context of
conviction after trial rather than a motion for dismissal;
nonetheless, they provide guidance. That a jury may convict on
overt acts omitted from an indictment lends authority to the
notion that the State can withstand a motion to dismiss where
other overt acts may be proven that are not found in the
charging document itself.
The conspiracy count does not specifically identify the
2006 and 2012 threats as overt acts. Yet the grand jury found
the conspiracy extended beyond Gibson's 2012 threats, thus
putting defendants on notice of the timeframe they were expected
to defend and the conduct. They were not prejudiced at that
stage by the State's failure to allege the overt acts in
question. Additionally, a defendant facing an indictment which
he considers "not sufficiently specific to enable [him] to
21 A-3600-13T2 prepare a defense[]" has the right to move for a bill of
particulars pursuant to Rule 3:7-5.
Thus the overt acts which made this a continuing conspiracy
which obscured the crimes they committed by helping Elisha in
2002 when Jon-Niece died include: the family meeting in 2002
and the direction to Iyonna to lie if asked about the child's
whereabouts, Likisha's 2006 threats, James's discussion with
Iyonna in 2010 when he described the events,6 and Gibson's
threats.
James did not initially repudiate or abandon the
conspiracy. At first, he told investigators that Jon-Niece was
with her father, the explanation the parties agreed to ten years
before. This knowing misstatement of fact was also intended to
continue the conspiracy of silence which did not actually end
until, when pressed by the authorities, Likisha and James
finally admitted their involvement. See Cannel, New Jersey
Criminal Code Annotated, comment 12 on N.J.S.A. 2C:5-2 (2015-
2016) ("If the conspiracy is one that contemplates a continuity
of purpose and a continued performance of acts, it can be
6 We include this conversation, no doubt troubling to Iyonna, because it would have prompted her to continue to lie and keep quiet about her family's complicity although not a direct threat. See Taccetta, supra, 301 N.J. Super. at 253.
22 A-3600-13T2 inferred to exist until there has been an affirmative showing
that it has terminated.").
So long as the co-conspirators kept quiet, and successfully
kept Iyonna from making any disclosures, everyone's wrongdoing
was hidden. Theirs was a continuing course of conduct, a true
conspiracy of silence that began in 2002, was reaffirmed over
the years, and did not stop until Likisha and James confessed.
Hence the last act occurred the year of the indictment. The
five-year statute of limitations does not compel dismissal of
this charge. It was not "manifestly deficient or palpably
defective[.]" Hogan, supra, 144 N.J. at 228-29 (quoting Perry,
supra, 124 N.J. at 168).
VII.
Likisha separately contends that the State failed to
establish a prima facie case against her before the grand jury.
This contention lacks merit given Likisha's pivotal role in
orchestrating the conspiracy the officer described during his
testimony before the grand jury.
Even if Likisha did not travel to New Jersey in 2002, she
participated in the family meeting afterwards when Iyonna was
told to lie about Jon-Niece's whereabouts. She threatened
Iyonna in 2006 that she too would be jailed if she made any
disclosures to the authorities. Hence, the grand jury was
23 A-3600-13T2 presented with enough circumstances to demonstrate a prima facie
case of conspiracy to obstruct.
VIII.
We affirm denial of the motion to dismiss the conspiracy
count and vacate the guilty pleas to the hindering charge.
Other than the conspiracy count, the motion to dismiss the
indictment as beyond the statute of limitations should have been
granted. Defendants may withdraw from their guilty pleas should
they wish to do so, and the prosecution move forward solely on
the charges of conspiracy. Should defendants elect to adhere to
the earlier agreement, they should be resentenced on the fourth-
degree conspiracy.
Affirmed in part; reversed in part.
24 A-3600-13T2