NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0345-24
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, April 11, 2025 v. APPELLATE DIVISION
MOHAMMAD RAMADAN,
Defendant-Appellant. _________________________
Argued January 15, 2025 – Decided April 11, 2025
Before Judges Currier, Marczyk and Torregrossa- O'Connor.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 22-04-0373.
Lily W. Halpern, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Lily W. Halpern, of counsel and on the brief).
Deepa S. Y. Jacobs, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; Deepa S. Y. Jacobs, of counsel and on the brief).
The opinion of the court was delivered by
TORREGROSSA-O'CONNOR, J.S.C. (temporarily assigned). We granted defendant Mohammad Ramadan leave to appeal from the
Law Division's April 4, 2024 order denying his motion to dismiss count two of
an indictment charging him with first-degree attempted murder, N.J.S.A. 2C:5-
1, 2C:11-3. Because we determine the grand jury was provided with incorrect
and misleading instructions regarding attempted murder, we reverse.
I.
On April 13, 2022, a Bergen County grand jury returned an indictment
charging defendant with second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1), count one; first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3,
count two; third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), count
three; and third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d), count four. The charges stemmed from defendant's
alleged attack on elderly victim, Ira Levine, that left him with head injuries
and lasting cognitive impairment. We distill the following salient facts and
procedural history from the records of the grand jury proceeding and the
motion hearing.
A.
The State presented its case to the grand jury through the testimony of
two witnesses, Fair Lawn Police Officer Robert Manning and Detective
William Diedtrich of the Bergen County Prosecutor's Office (BCPO).
A-0345-24 2 Officer Manning testified that on November 23, 2021, at approximately
2:45 p.m., he responded to an emergency call regarding a "fall victim at
[Levine] [L]aw [F]irm." When Officer Manning arrived, he met with the
victim's son, Joshua Levine, who directed Officer Manning to the then-
seventy-nine-year-old victim sitting on the floor. 1 Officer Manning testified
that he observed the victim "sitting against the wall very disoriented[] with a
laceration to his face," and saw a "hole in the sheetrock behind where [the
victim] was sitting." The officer explained that the victim could not recall how
he ended up on the floor and appeared "disoriented" and "lethargic."
Ultimately, the victim was transported to the hospital, and police later learned
that he suffered an "acute intercranial hemorrhage, likely post traumatic,
puncture of an artery in his face," "[f]ractured . . . facial bones[,] . . . and lost
teeth." Officer Manning testified that he initially believed the victim had
fallen.
According to Detective Diedtrich, investigators interviewed the victim at
the hospital, who "remembered [defendant] coming to the building. . . . [and
the victim] attempting to make small talk with [defendant] by referencing
some photos on Facebook." Defendant was known to the victim and had
1 As the victim and his son share the same last name, we refer to the victim and the victim's son by their first names. No disrespect is intended.
A-0345-24 3 regularly provided office computer repair services for the victim's law office
for years. The victim described defendant as "disheveled," and recalled
nothing else before "the next thing he knew[,] he woke up in the hospital."
Detective Diedtrich testified that the paralegal at the law office provided
a formal statement at the BCPO, which was played for the grand jury. The
paralegal explained she let defendant into the office because he "had been
working [at Levine Law] for a long time[] [and they had] a good relationship,"
calling him "a long[-]term IT employee of the law firm." She observed
defendant "holding a stick of some sort" and recalled he "did not park in [a]
parking spot, but rather in the middle of the lot with the car running as if he
did[ not] plan on staying."
The paralegal recalled defendant's speaking with the victim outside her
office when "she heard [the victim] mention something about seeing
[defendant] on Facebook and then she heard [a] thud." Defendant "only stayed
a minute without [performing] any work on any computer" and then "quickly
left." After defendant "walked out," the paralegal found the injured victim.
Detective Diedtrich stated that Joshua texted defendant later that day,
asking defendant to "please call [him] back." Screenshots of text messages
between defendant and Joshua were introduced to the grand jury, showing
defendant texted Joshua the following day, stating:
A-0345-24 4 I'm losing my mind, dear, God, please, what the f[***] have I done, I don't know what's going on, please tell me what's going on with him, please, please, please, I'm paralyzed, please tell me how Ira is please. Dear God, dear God, please, Josh, I beg you.
Joshua then called defendant and recorded their conversation. A
transcript of that call was presented to the grand jury, reflecting Joshua
pleading with defendant to tell him "why this . . . happened." Defendant
responded that "it was out of [his] control . . . . [He] came in there to help the
man" but "d[id not] know what happened," and "maybe God [wa]s trying to
show [him] that maybe [he] was denying such a thing as the devil and [he] d[id
not] know what got over [him]."
B.
At the conclusion of the proceeding, the assistant prosecutor instructed
the grand jury regarding the law applicable to each count. In pertinent part,
the prosecutor first advised the grand jurors that defendant was charged with
attempted murder. The prosecutor then instructed the grand jury on the charge
of attempted murder, beginning with its request that they find defendant
intended to cause the victim's death, stating:
The second count that we're asking you to consider is one count of attempted murder.
....
A-0345-24 5 So we're asking you to consider that it was . . . defendant's purpose to cause the death of the victim. And if you find [defendant] purposefully engaged in conduct, which was intended to cause the death of the victim, if the intended circumstances were as a reasonable person would believe them to be, or they did or omitted to do anything for the purpose of causing the death of the victim without further comment on their part.
We ask you to find that it was . . . defendant's purpose to cause the death of Ira Levine, and that he purposefully engaged in conduct which was intended to cause his death, by attacking the victim in the office, the victim being [seventy-nine] years old.
The prosecutor then continued, stating that attempted murder could be
satisfied by two separate types of intent:
[I]f there's an attempt for the actor to purposefully cause death or serious bodily injury resulting in death or attempt to cause death or serious bodily injury resulting in death, this attempted murder is committed when the actor acting either alone or with one or more other persons is engaged in the commission of activities that could cause the injury that could result in death. This is again, [defendant] is alive, so we're asking you to consider this as an attempt.
[(Emphasis added).]
The prosecutor then continued stating, in pertinent part:
Whether or not . . . defendant's purpose was to cause the death of the victim is a question of fact for you to decide. Purpose is a condition of the mind which cannot be seen. It can only be determined by inference from conduct, words or acts.
A-0345-24 6 It is not necessary for the State to produce a witness or witnesses who could testify that . . . defendant stated, for example, that his purpose was to cause the death of the victim. It's within your power to find that proof of purpose has been furnished through the probable cause standard, that may arise from the nature of the act and the surrounding circumstances.
Causing the death of a victim must be within the design or contemplation of . . . defendant. If you find there was use of a deadly weapon which in th[is] case, there is an allegation that [defendant] had a wooden baton[-]like object with him, should weigh in your evaluation of whether or not you feel that the purpose was to cause the death of the victim.
In your deliberations, you may consider the weapon used and the ma[nn]er and circumstances of any attack, and if you're satisfied, you may draw an inference from the weapon used as to . . . defendant's purpose.
At the conclusion of the legal instructions, a grand juror asked, "[w]as
there any indication[,] maybe from previous customers[,] . . . that [there was]
b[izarre] behavior from [defendant], or any aggression, or any other customers
that he serviced?" The prosecutor responded, "[n]o. There's no evidence as to
[defendant] having any work issues. There was a phone call made to the
employer when they were looking for him and there's a brief exchange that is
A-0345-24 7 documented, but there's nothing to indicate anything about [defendant]
having . . . . previous negative work issues."
The grand jurors deliberated for several minutes and sent a request for a
"rereading [of] the law" on attempted murder. The assistant prosecutor then
provided the following instructions:
[A]n act . . . constitutes murder when the act purposefully causes death or serious bodily injury resulting in death. So attempting to cause death or attempting to cause serious bodily injury resulting in death[] . . . is obviously an attempt in this case because Ira Levine did not die.
. . . [I]n order for you to bill . . . defendant for attempted murder, you must find probable cause that it was defendant's purpose to cause the death of the victim.
And again, whether . . . defendant purposefully caused the death of the victim is a question for you to de[c]ide. Purpose of the condition of the mind which cannot be seen and can only be determined by inference from conduct, words or acts.
It is not necessary for the State to produce a witness or witnesses who can testify that . . . defendant stated for example, that his or her purpose was to cause the death of the victim. It's within your power as grand jurors to find that proof of the purpose has been furnished to the probable cause standard, by inference which may arise from the nature of the act and the surrounding circumstances, such things as a place where the acts occurred, the weapon used at [the] location, number and nature of
A-0345-24 8 wounds inflicted and that all that was done or said by . . . defendant preceding, connecting with and immediately proceeding the event are among circumstances that you may consider.
Causing the death of the victim must be within the design or contemplation of . . . defendant. And again[,] . . . you don't have to find that there was a weapon, but if you do find that there was a weapon, you can make an inference that that would inure towards an attempted murder.
Grand jurors then inquired about the extent of defendant's injuries,
asking, "[w]as there ever a question of whether or not [the victim was] going
to make it," and another inquiring, "[was] there any other evidence of bodily
injury, like to other regions of the body?" Detective Diedtrich returned and
clarified that the victim's injuries "could . . . have been fatal," and he did not
recall injuries beyond those to the head and face. The grand jury then returned
an indictment on all proposed counts.
C.
Defendant moved to dismiss count two of the indictment, and his
argument before the Law Division was two-fold. He first asserted that
"incorrect legal instructions were provided regarding the requisite purpose for
attempted murder." Defendant highlighted the assistant prosecutor's advising
that an intent to cause "serious bodily injury" was a sufficient mental state was
A-0345-24 9 "blatantly wrong" and "not merely incomplete or imprecise." Defendant
emphasized the prosecutor "never explicitly repudiated" or expressly corrected
the faulty instruction, and instead provided contradictory instructions that
further confused the grand jury as evidenced by the jurors' request for the law
on attempted murder and the subsequent questions regarding the seriousness of
the victim's injuries.
Defendant cited to State v. Gilliam, 224 N.J. Super. 759 (App. Div.
1988), in which we reversed the defendant's attempted murder conviction
based on an incorrect attempted murder jury charge because the language
regarding the actor's required purpose "was subject to multiple, inconsistent
interpretations by the jury." Id. at 763. Defendant likened the incorrect
instructions here to those in Gilliam, because the jury instruction there had
similarly defined the requisite purpose of attempted murder as "to cause the
death of [the victim], or to cause serious bodily injury resulting in the death of
[the victim]." Ibid. (emphasis added).
The State argued the assistant prosecutor stated numerous times the
correct mens rea, namely, that defendant must act with "purpose to cause the
death of the victim." The State asserted that "when the grand jury
request[ed] . . . additional reading of the law . . . [and] the prosecutor
instruct[ed] the grand jurors, again, on attempted murder[,] she first g[ave]
A-0345-24 10 them . . . the law on criminal homicide." According to the State, although the
prosecutor made two isolated references to an alternative "attempt to cause
serious bodily injury," those misstatements, taken with the remainder of the
instructions, did not render the charge "blatantly wrong."
Defendant next claimed the prosecutor withheld exculpatory information
from the grand jurors and did not provide instructions regarding the
affirmative defenses of insanity and diminished capacity when one of the
jurors asked whether defendant had previously demonstrated "bizarre" or
"aggressi[ve]" behavior. Defendant claims the prosecutor did not answer
truthfully, as a witness had told police defendant's behavior was "bizarre in the
months leading up to this." According to the witness, "on the day [defendant]
came here he was bizarre, and he was disheveled, and it looked like [he] had
been dropped out of a spaceship." The State countered noting it had no
"obligation to present any type of mental evidence [to] the grand jury" and "to
tell a grand jury that there is something going on mentally . . . with a
defendant . . . would be misleading [to] the grand jurors, because we don't
know what his mental state is."
In the court's oral decision denying defendant's motion, the court
considered the legal instructions and found:
the average grand juror could fully recall and understand the elements of attempted murder they
A-0345-24 11 were considering[,] particularly[] since the prosecutor provided specific, clear, and correct instructions on that particular crime before the vote and clarified multiple times on at least ten occasions the correct statement of the law within literally seconds after including that . . . serious bodily injury language thereby, correcting any misimpression of the legal elements of the crime.
The court reviewed the grand jury hearing transcript and determined the
references to "serious bodily injury, in the totality of the
circumstances . . . [did] not render the charge completely flawed." It counted
the number of times the prosecutor used accurate language to find those
correct statements "thereby[] cur[ed] the prior misstatement."
The court found Gilliam distinguishable as it involved "an
erroneous . . . instruction to the petit jury, which the Appellate Division found
the jury relied on since there was no other instruction."
The court further determined the prosecutor's failure to "offer the
evidence from the lay witness about . . . defendant acting bizarre" and telling
the grand jury instead that there was no such evidence "d[id] not negate that
this defendant was determined by the grand jury to have acted with a purpose
to kill the alleged victim."
A-0345-24 12 II.
On appeal, defendant raises the same issues for our consideration:
POINT I
THE TRIAL COURT INCORRECTLY DENIED DEFENDANT'S MOTION TO DISMISS COUNT TWO OF THE INDICTMENT WHERE THE STATE INCORRECTLY INSTRUCTED THE GRAND JURY ON THE REQUISITE PURPOSE FOR ATTEMPTED MURDER.
POINT II
THE TRIAL COURT INCORRECTLY DENIED DEFENDANT'S MOTION TO DISMISS COUNT TWO OF THE INDICTMENT WHERE THE STATE INTERFERED WITH THE GRAND JURY'S DECISION-MAKING FUNCTION BY GIVING A FALSE RESPONSE TO A QUESTION.
POINT III
THE INTERESTS OF JUSTICE REQUIRE IMMEDIATE APPELLATE REVIEW.
III.
We review the trial court's decision on defendant's motion to dismiss the
indictment for an abuse of discretion. State v. Saavedra, 222 N.J. 39, 55
(2015). "A trial court's exercise of this discretionary power will not be
disturbed on appeal 'unless it has been clearly abused.'" Id. at 55-56 (quoting
State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994)). "However, our
review of a trial judge's legal interpretations is de novo." State v. Eldakroury,
A-0345-24 13 439 N.J. Super. 304, 309 (App. Div. 2015) (citing State v. Grate, 220 N.J. 317,
329-30 (2015); State v. Drury, 190 N.J. 197, 209 (2007)); see also State v.
Twiggs, 233 N.J. 513, 532 (2018) (recognizing when a decision to dismiss an
indictment hinges on a purely legal question, we need not defer to the motion
court's interpretations (citing State v. S.B., 230 N.J. 62, 67 (2017))).
Courts "should dismiss an indictment only on the clearest and plainest
ground, and only when the indictment is manifestly deficient or palpably
defective." Twiggs, 233 N.J. at 531-32 (quoting State v. Hogan, 144 N.J. 216,
228-29 (1996)) (internal quotation marks omitted). Generally, "[a]s long as
the State presents 'some evidence establishing each element of the crime to
make out a prima facie case,' a trial court should not dismiss an indictment."
State v. Nicholson, 451 N.J. Super. 534, 541 (App. Div. 2017) (quoting State
v. Feliciano, 224 N.J. 351, 380 (2016) (citations omitted)).
"[A] deficiency premised upon alleged prosecutorial misconduct does
not require dismissal of an indictment '[u]nless the prosecutor's
misconduct . . . is extreme and clearly infringes upon the [grand] jury's
decision-making function.'" State v. Bell, 241 N.J. 552, 560-61 (2020)
(alterations in original) (quoting State v. Murphy, 110 N.J. 20, 35 (1988)).
Moreover, "'[b]ecause grand jury proceedings are entitled to a presumption of
validity,' defendant bears the burden of demonstrating the prosecutor's conduct
A-0345-24 14 requires dismissal of the indictment." State v. Majewski, 450 N.J. Super. 353,
365 (App. Div. 2017) (quoting State v. Francis, 191 N.J. 571, 587 (2007)).
"Incomplete or imprecise grand-jury instructions do not necessarily
warrant dismissal of an indictment; rather, the instructions must be 'blatantly
wrong.'" State v. Triestman, 416 N.J. Super. 195, 205 (App. Div. 2010)
(quoting State v. Hogan, 336 N.J. Super. 319, 344 (App. Div. 2001)). "In
short, an indictment will fail where a prosecutor's instructions to the grand jury
were misleading or an incorrect statement of law." Ibid; see also State v.
Tucker, 473 N.J. Super. 329, 344 (App. Div. 2022).
IV.
We first address defendant's argument that the court erred in denying his
motion to dismiss the attempted murder charge based on the prosecutor's
misstatements regarding the mens rea required for attempted murder.
Here, the legal instructions on the requisite intent were, at times correct,
and on two occasions "blatantly wrong." See Triestman, 416 N.J. Super. at
205 (quoting Hogan, 336 N.J. Super. at 344). The prosecutor first accurately
asked that the grand jury "consider that it was . . . defendant's purpose to cause
the death of the victim." The legal instruction that followed, however,
incorrectly provided an alternative intent, specifically, to purposefully cause
"serious bodily injury," erroneously advising:
A-0345-24 15 [I]f there's an attempt for the actor to purposefully cause death or serious bodily injury resulting in death or attempt to cause death or serious bodily injury resulting in death, this attempted murder is committed when the actor[,] acting either alone or with one or more other persons[,] is engaged in the commission of activities that could cause the injury that could result in death. This is again, [the victim] is alive, so we're asking you to consider this as an attempt.
The prosecutor did not correct this misstatement, instead adding the correct,
but potentially confusing, instructions that "[w]hether or not . . . defendant's
purpose was to cause the death of the victim is a question of fact for you to
decide" and "[c]ausing the death of a victim must be within the design or
contemplation of . . . defendant."
Mindful of our deferential standard in reviewing the trial court's
discretionary determinations, we conclude the motion court's finding that the
instruction as a whole "cur[ed] the prior misstatement" was not supported by
the record, as the grand jury could have mistakenly determined an attempt to
purposely cause serious bodily injury resulting in death, rather than an intent
to cause death, would suffice to sustain a charge of attempted murder. The
grand jurors were not equipped as instructed to identify and disregard the
critically incorrect instruction of alternative intent no matter how many times
the correct mens rea was repeated. When assessing the impact of an incorrect
A-0345-24 16 instruction on the charge as a whole, ours is a qualitative, not a quantitative,
analysis.
We are informed by our prior decision in Gilliam, 224 N.J. Super. at
763, in which we considered, albeit in the context of a petit jury instruction,
the same error in providing alternative purposes for attempted murder. There
we determined, even in the absence of an objection to the jury charge,
[t]he crime of murder under N.J.S.A. 2C:11-3 does not require a specific intent to kill. Purposely or knowingly committing serious bodily injury when death results is a sufficient element. In the crime of attempted murder, no death results. The jury charge before us on this appeal was subject to multiple, inconsistent interpretations by the jury. The jurors may have understood that they could reach a verdict of guilty if death was a possibility, however remote, as the result of the bodily injury inflicted on the victim. That interpretation, while logical, would have been contrary to law and prejudicial to defendant. The crime of attempted murder should be limited to attempts to cause death.
[Ibid.]
Here, even in the grand jury context and bracketed between otherwise
correct statements of law, we find the same risk was present. See generally
State v. Savage, 172 N.J. 374, 387 (2002) ("The standard for assessing the
soundness of a jury instruction is 'how and in what sense, under the evidence
before them, and the circumstances of the trial, would ordinary . . . jurors
understand the instructions as a whole.'" (quoting Crego v. Carp, 295 N.J.
A-0345-24 17 Super. 565, 573 (App. Div. 1996))). The grand jury could have misunderstood
the correct instructions as merely applicable to what it was incorrectly told was
an alternative pathway of proving attempted murder by demonstrating an intent
to cause death, when, under the law, it is the only route.
This concern is heightened by the grand jury's requesting that the
prosecutor "reread" the law of attempted murder, evidencing the possibility of
confusion. The prosecutor then compounded the issue by referencing the
mental state for murder, N.J.S.A. 2C:11-3, which permits the alternative mens
rea of purposely causing "serious bodily injury resulting in death."
Specifically, the prosecutor stated, "an act . . . constitutes murder when the act
purposefully causes death or serious bodily injury resulting in death,"
erroneously adding, "[s]o attempting to cause death or attempting to cause
serious bodily injury resulting in death[] . . . is obviously an attempt in this
case because Ira Levine did not die." (Emphasis added).
Although the prosecutor next instructed that the grand jury had to "find
probable cause that it was defendant's purpose to cause the death of the
victim," we are not persuaded that this cured the potential confusion caused by
the prior incorrect and misleading statements. The grand jury's questions after
beginning deliberations sufficiently suggest some uncertainty remained. Cf.
State v. Frisby, 174 N.J. 583, 600 (2002) (recognizing in a petit jury trial "if a
A-0345-24 18 jury affirmatively evidences 'confusion' by its questions . . . that would be an
important factor in determining whether" error in the jury instruction was
prejudicial). We note the trial court failed to address the grand jurors' inquiry
or the prosecutor's misleading response in reaching its conclusion that the
incorrect jury instructions did not require dismissal of the count.
We are not satisfied, when considering the critical misstatements, the
instructions as a whole, the nature of the grand jury's questions, and the
misleading answers provided, that, without further clarification, the grand jury
possessed the capacity to reconcile the incorrect instructions with the proper
instructions. Consequently, we cannot escape the inherent intolerable
possibility that the instructions may have caused the jury to indict defendant
for attempted murder without finding defendant possessed the requisite
purpose to cause death.
Persuaded that the misstatement of law requires reversal and dismissal of
the attempted murder charge, we need not reach defendant's remaining claim
that the prosecutor withheld exculpatory evidence as it pertains only to the
attempted murder charge we now dismiss.
We reverse the order denying defendant's motion to dismiss count two of
the indictment. Our opinion does not preclude, if appropriate, the State's re-
A-0345-24 19 presenting this matter to another grand jury. See Tucker, 473 N.J. Super. at
349.
A-0345-24 20