STATE OF NEW JERSEY VS. C.A.T-P. (20-01-0011, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 30, 2021
• Docket: A-1543-20
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1543-20

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

C.A.T-P.,

Defendant-Respondent. _________________________

Submitted August 23, 2021 – Decided August 30, 2021

Before Judges Whipple and Natali.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 20-01- 0011.

Michael H. Robertson, Somerset County Prosecutor, attorney for appellant (Rory A. Eaton, Assistant Prosecutor, of counsel and on the briefs).

Joseph E. Krakora, Public Defender, attorney for respondent (Tamar Y. Lerer, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM The State appeals from the Law Division's dismissal of an indictment

charging defendant C.A.T-P.1 with: 1) third-degree aggravated assault—

strangulation, N.J.S.A. 2C:12-1(b)(13); 2) third-degree aggravated assault—

significant bodily injury, N.J.S.A. 2C:12-1(b)(12); 3) fourth-degree hindering

apprehension or prosecution, N.J.S.A. 2C:29-3(b)(2); and 4) fourth-degree

unlawful possession of a prohibited device—hollow point bullets, N.J.S.A.

2C:39-3(f)(1).

The motion judge dismissed the indictment on two grounds. First, h e

concluded it was in the "interests of justice" to dismiss the charges as the State's

ability to establish defendant's guilt beyond a reasonable doubt would

"ultimately fail" because defendant was deported and not presently located in

the United States and the victim, M.A.N-Z., expressed her intention not to testify

against him. Second, the court noted that defendant was available for a

"considerable amount of time" before being deported and the State failed to take

appropriate measures to secure his appearance for trial prior to his removal from

the United States.

On appeal, the State contends the court abused its discretion by dismissing

the indictment, arguing that it improperly evaluated the strength of the State's

1 We use initials to protect M.A.N-Z.'s privacy. R. 1:38-3(c)(12). A-1543-20 2 proofs and made incorrect assumptions regarding the ability of the State to

introduce admissible evidence establishing defendant's guilt. We agree and

reverse and remand with directions that the court reinstate the indictment.

I.

The State's charges stem from an incident that occurred during the early

morning hours of November 23, 2019, when officers from the North Plainfield

Police Department responded to a local residence based upon a report of an

assault potentially involving a handgun. The officers met with the victim,

M.A.N-Z., who advised them that she lived with defendant, her boyfriend, and

their infant child. She also informed the officers that defendant had taken the

child to their neighbor's apartment.

M.A.N-Z. stated that defendant physically assaulted her after her friend

left the apartment earlier that night, and in response to her friend allegedly

insulting defendant. She explained that while in the common hallway defendant

pushed her against the wall and strangled her, obstructing her breathing. The

officers observed visible marks on her neck, which they photographed.

M.A.N-Z. told the officers that she resisted the assault and ran into the

bathroom for safety, where she was unable to call the police because she did not

have her cell phone in her possession. After defendant unsuccessfully attempted

A-1543-20 3 to break down the bathroom door, he left the residence. At that point, M.A.N-

Z. left the bathroom where she encountered defendant who had returned to the

apartment. Defendant allegedly retrieved a handgun from the bedroom, showed

it to M.A.N-Z. and stated, "I have a gun." M.A.N-Z. again fled to the bedroom,

locked the door, and screamed for help.

An investigating officer captured M.A.N-Z.'s statements on his body

camera. M.A.N-Z. subsequently consented to a search of the apartment where

the police seized three .380 caliber bullets, one of which was a hollow point, in

the bedroom dresser.

After defendant was arrested, M.A.N-Z. obtained a temporary restraining

order (TRO) against him. The police conducted a search of defendant's vehicle

pursuant to a search warrant, but were unable to locate the handgun allegedly

used by defendant in the assault.

M.A.N-Z. later gave a recorded statement which was factually

inconsistent with what she alleged on November 23, 2019. For example,

M.A.N-Z. claimed to be unsure if defendant displayed a handgun, and stated that

her friend allegedly insulted her which angered defendant. Further, M.A.N-Z.

did not reference defendant's purported attempt to break down the bathroom

A-1543-20 4 door. She continued to maintain, however, that defendant strangled and

assaulted her.

Defendant was detained prior to trial because the court concluded that no

combination of pre-trial conditions would assure the protection and safety of

other members of the community. On this point, the court noted that "defendant

strangled the victim . . . with sufficient force to leave marks," and further

expressed concern about the "[p]otential for witness intimidation."

On November 26, 2019, M.A.N-Z. informed the court that she wanted to

"withdraw all the charges [she] filed against defendant," and thereafter

voluntarily dismissed the TRO. Defendant subsequently moved to reconsider

the court's pre-trial detention order, an application that the court granted,

releasing defendant under several conditions, including that he appear for all

scheduled court proceedings and not commit any offenses while released.

In granting defendant's application, the court explained that M.A.N-Z.'s

dismissal of the TRO constituted a material change in circumstances warranting

reconsideration of the court's earlier pretrial confinement order. The court

explained there was "less of a risk of violence to the victim than at the original

time of the hearing."

A-1543-20 5 Defendant was subsequently taken into custody on a United States

Immigration and Customs Enforcement (ICE) detainer. An immigration judge

later issued an order for defendant's removal from the United States to El

Salvador, his country of origin. Upon learning of the removal order and

defendant's scheduled deportation, the State moved to revoke defendant's

pretrial release. Defendant, however, was deported prior to the revocation

hearing.

Defendant subsequently moved to dismiss the indictment which he

supported by a notarized affidavit from M.A.N-Z., in which she stated she was

not in fear of defendant, did not wish to testify against him, requested that the

prosecutor dismiss the charges, and claimed the November 23, 2019 assault was

"an aberration." Notably, however, M.A.N-Z. never recanted her statements that

defendant assaulted her, but simply noted that the incident was "the only time

this has ever happened."

Defendant argued that the Confrontation Clause 2 prevented the State from

relying on M.A.N-Z.'s recorded statements and, as she did not wish to testify,

the State could not support any of the charges, as the sole evidence against

defendant—her recorded statements—constituted inadmissible hearsay. In

2 U.S. Const. amend. VI. A-1543-20 6 opposing the motion, the State argued it was inappropriate to consider the

application in light of defendant's absence from the proceeding, and further

stated that the court should issue a bench warrant, and the matter re -scheduled

once defendant's appearance was secured.

The State also maintained that defendant failed to provide any cognizable

legal basis to dismiss the indictment and his claim that M.A.N-Z. did not intend

to cooperate with the State at the time of trial was hypothetical. As the State

explained, it had "no indication from the victim that she would not cooperate

with a subpoena should one issue."

The court granted defendant's application and dismissed the indictment.

In an October 27, 2020 order and written opinion, the court stated, that "[o]ut-

of-court statements interdicted by the Confrontation Clause include both

testimonial statements elicited by the police during interrogations . . . and

testimonial statements volunteered to the police." The court further noted that

"[a] statement about a relevant past event made to a police officer conducting a

criminal investigation meets the Sixth Amendment's formality and solemnity

requirement for a testimonial statement."

In making its decision, the court relied upon the following language from

Hammon v. Indiana, 547 U.S. 813, 829-30 (2006), in which the United States

A-1543-20 7 Supreme Court concluded that certain statements to law enforcement were

testimonial and subject to the Confrontation Clause:

[T]he victim's statement to the police in the affidavit describing the domestic-violence events were testimonial for among the following reasons: (1) the police interrogation of the victim "was part of an investigation into possibly criminal past conduct"; (2) the police inquiry was not an effort to determine "'what [was] happening' but rather 'what happened'"; (3) "there was no immediate threat" to the victim because she had been separated from her abuser and therefore "no emergency [was] in progress."

The court determined that "[t]he police report, with regard to anything the

witness said to the officer, would be inadmissible hearsay." Consequently, the

court concluded "[s]ince the defendant was deported and the [State's] primary

witness will not testify at trial, the court believes that the best course, in the

interest of justice, is to dismiss the indictment." The court also found that

defendant had been available prior to deportation for a considerable amount of

time and that "[p]rocedural remedies were not utilized with respect to seeking

ICE deferment or staying removal until after the State's criminal trial."

After the court denied the State's motion for reconsideration, it filed this

appeal arguing:

A-1543-20 8 POINT I

THERE WERE NO LEGAL GROUNDS FOR DISMISSAL OF THE INDICTMENT.

POINT II

SUFFICIENT EVIDENCE EXISTS TO SUSTAIN THE INDICTMENT.

POINT III

A BENCH WARRANT SHOULD ISSUE FOR DEFENDANT.

II.

"[T]he decision whether to dismiss an indictment lies within the discretion

of the trial court, and that exercise of discretionary authority ordinarily will not

be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144

N.J. 216, 229 (1996) (citations omitted). An abuse of discretion occurs "when

a decision is 'made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty.

Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. &

Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). When a trial court's

decision turns on a legal question, we review that determination de novo,

without deference to the trial court's interpretation. State v. Twiggs, 233 N.J.

513, 532 (2018) (citation omitted).

A-1543-20 9 An indictment is presumed valid, see State v. Perry, 124 N.J. 128, 168

(1991), and should not be dismissed unless "manifestly deficient or palp ably

defective," Hogan, 144 N.J. at 229. See also State v. Tringali, 451 N.J. Super.

18, 27 (App. Div. 2017) ("A trial court should only dismiss an indictment on the

'clearest and plainest' grounds and only when it is clearly defective." (quoting

State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984))).

"The grand jury's role is not to weigh evidence presented by each party,

but rather to investigate potential defendants and decide whether a criminal

proceeding should be commenced." Hogan, 144 N.J. at 235. Accordingly, a

prosecutor seeking an indictment is solely required to "present a prima facie case

that the accused has committed a crime." Id. at 236. An indictment should not

be dismissed "[a]s long as 'some evidence' on each of the elements of the

offenses is presented and there is nothing that detracted from the fairness of the

grand jury proceeding." State v. Scherzer, 301 N.J. Super. 363, 428 (App. Div.

1997) (citations omitted).

Additionally, grand jury proceedings carry a "presumption of validity," as

prosecutors enjoy "broad discretion in presenting a matter to the grand jury."

State v. Smith, 269 N.J. Super. 86, 92 (App. Div. 1993). The State's power to

indict an individual is not limitless, however, as a "prosecutor, contrary to an

A-1543-20 10 ordinary advocate, has a duty to see that justice is done." State v. Polasky, 240

N.J. Super. 139, 146 (App. Div. 1990) (citations omitted). "He is not to

prosecute, for example, when the evidence does not support the State's charges."

Ibid.

Further, "[t]he court should evaluate whether, viewing the evidence and

the rational inferences drawn from that evidence in the light most favorable to

the State, a grand jury could reasonably believe that a crime occurred and that

the defendant committed it." State v. Morrison, 188 N.J. 2, 13 (2006) (citation

omitted). Therefore, "a defendant who challenges an indictment must

'demonstrate that evidence is clearly lacking to support the charge.'" State v.

Graham, 284 N.J. Super. 413, 417 (App. Div. 1995) (quoting State v. McCrary,

97 N.J. 132, 142 (1984)). Dismissal of an indictment is a "last resort because

the public interest, the rights of victims and the integrity of the criminal justice

system are at stake." State v. Williams, 441 N.J. Super. 266, 272 (App. Div.

2015) (quoting State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004)).

III.

As noted, the State contends the court erred in dismissing the indictment.

Specifically, the State asserts that there was no legal basis for the court 's

A-1543-20 11 decision and that there was sufficient evidence in the record to sustain the

indictment.

Defendant claims that the interests of justice required the dismissal of the

indictment because: 1) significant resources have been, and will be, spent on a

"futile exercise" as defendant is barred from returning to the United States; 2)

defendant's right to a speedy trial would be violated if the State is permitted to

keep the indictment "open indefinitely"; and 3) without M.A.N-Z.'s testimony

the State is unable to prosecute the case.

We agree with the State that the court abused its discretion in dismissing

the indictment as there was no legal defect with the presentment and the record

presented to the court fully supports the charges. Hogan, 144 N.J. at 229;

Morrison, 188 N.J. at 12. Instead, the court mistakenly based its decision on its

belief that the State would be unable to proceed at trial because M.A.N-Z.

expressed her intention to refuse to testify, and the State would have to rely on

her recorded statements, which it determined was impermissible hearsay. As

the court explained:

[T]he [c]ourt need not go blindly down a path that will ultimately fail. The [c]ourt is aware, and the State would have to agree, that if the trial were to happen today, the prosecution could not put on a case. In effect, there is no witness to testify against the defendant. The police report, with regard to anything

A-1543-20 12 the witness said to the officer, would be inadmissible hearsay. There are no available exceptions to the rule against hearsay in this instance. The [c]ourt must weigh all facts specific to a particular case when arriving at its decision. First, the defendant is not present, and this is not by his choosing; he was deported. Second, the witness against the defendant, has written letters to the prosecution, and gave a statement to defense counsel that she does not want to testify and that she does not want the defendant prosecuted. Third, the defendant was available for a considerable amount of time, held on an ICE detainer, at Somerset County Jail, before being deported. Procedural remedies were not utilized with respect to seeking ICE deferment or staying removal until after the State's criminal trial. The defendant has not been deported. Since the defendant was deported and the [p]rosecutor's primary witness will not testify at trial, the [c]ourt believes that the best course, in the interests of justice, is to dismiss the indictment.

This conclusion, however, was improperly based on the court's evaluation

of State's anticipated proofs, and not on the validity of the indictment, the proofs

submitted at that proceeding, or the decision of the grand jury to indict

defendant. In doing so, the court failed to view the facts in the light most

favorable to the State and address whether "a grand jury could reasonably

believe that a crime occurred and that the defendant committed it ." Morrison,

188 N.J. at 12. As noted, the record contains ample evidence supporting the

charges against defendant to survive defendant's motion to dismiss.

A-1543-20 13 For example, M.A.N-Z.'s initial statement indicated that defendant pushed

her against a wall and strangled her, a fact corroborated by submitted

photographs depicting her injuries. M.A.N-Z. also stated that after she locked

herself in a bathroom, defendant attempted to break the door down. Further,

when M.A.N-Z. left the bathroom, under the belief that defendant had left, he

returned to the apartment and displayed a handgun. In addition, M.A.N-Z. does

not dispute that the assault occurred, in fact, she never recanted and stated in her

affidavit that "this is the only time this has ever happened."

In concluding M.A.N-Z. would not testify against defendant, the court

misinterpreted her notarized affidavit. Nor can we discern from the record

provided to us if M.A.N-Z.'s reluctance to testify was affected by the domestic

violence that the State contends defendant committed.

What is clear, however, is that the charges against defendant are serious

offenses and, if proven, establish that M.A.N-Z. was a victim of domestic

violence. New Jersey law is intended "to assure the victims of domestic violence

the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18.

As the Legislature declared when enacting the Prevention of Domestic Violence

Act:

The Legislature finds and declares that domestic violence is a serious crime against society; that there

A-1543-20 14 are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.

[Id.]

In our view, the better practice under the circumstances would be for the

court to hold the State to its burden of proof at trial before dismissing these

significant charges. To the extent the State intends to rely upon M.A.N-Z.'s

testimony to support the charges, and she refuses to testify, the court can address

the propriety, and consequences, of that decision as it relates to the State's proofs

at that time, and upon a complete record.

In sum, we reverse the court's October 27, 2020 order and remand the

matter for entry of an order reinstating the indictment. We do not address the

State's argument in its third point whether a bench warrant should issue, and

reserve that decision for the trial court on remand. Nor do we address any other

potential issues attendant to defendant's prosecution not specifically raised by

the parties. We do not retain jurisdiction.

A-1543-20 15 Reversed and remanded.

A-1543-20 16