State v. Dorn

182 A.3d 938, 233 N.J. 81
CourtSupreme Court of New Jersey
DecidedApril 25, 2018
DocketA–54 September Term 2016; 078399
StatusPublished
Cited by33 cases

This text of 182 A.3d 938 (State v. Dorn) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dorn, 182 A.3d 938, 233 N.J. 81 (N.J. 2018).

Opinion

JUSTICE SOLOMON delivered the opinion of the Court.

**85We are called upon to determine whether defendant Todd Dorn's right to a grand jury presentment under the New Jersey Constitution was violated when the trial court permitted the State, on the eve of trial, to increase the charge in count two of defendant's indictment from a third-degree to a second-degree drug offense. We are also asked whether it was proper for the trial court to admit into evidence a copy of a map showing that defendant's home was within 500 feet of public housing, a public park, or public building.

Defendant was indicted for various drug-related offenses, including two counts of second-degree possession of a controlled dangerous substance (CDS) with the intent to distribute within 500 feet of public housing, a public park, or public building. The first count related to defendant's possession of heroin, a second-degree offense, and the second count related to defendant's possession of seventy-five grams of marijuana, listed in the indictment as a third-degree charge. The day before the trial began, the trial **86court, over defendant's objection, permitted the State to amend the second count in defendant's indictment from a third-degree to a second-degree charge, citing administrative error.

At trial, the State submitted-and the trial court admitted into evidence-a copy of a map showing that defendant's home was within 500 feet of public housing, a public park, or public building. Defendant objected to the admission of the map on the ground that it was a copy without a raised seal.

We conclude that the amendment to count two of defendant's indictment was a violation of defendant's right to grand jury presentment under the New Jersey Constitution, *941and we remand the conviction on count two to the trial court. We also find that defendant waived his right to object to the map's authentication.

I.

The facts contained in the appellate record reveal that Atlantic City Police Sergeant Richard Andrews was patrolling the area of 615 Green Street, a public housing complex where defendant lived. Andrews saw a Jeep parked in front of the home and a person, later identified as Jamie Guth, walking toward the front door. As Andrews drove past the Jeep in his marked police car, the driver of the Jeep appeared nervous. The driver then drove around the block and eventually returned to the Green Street home where Guth re-entered the Jeep. The Jeep drove off, and Andrews radioed other officers in the area who pulled the Jeep over.

When Guth exited the Jeep, an officer saw a brick of heroin1 protruding from Guth's bra. Officers arrested Guth and, in addition to the heroin, found green glassine baggies stamped with the word "Thriller." Officers later interviewed Guth who stated that she had purchased the heroin from a man she knew as "Ty." Guth identified a photograph of defendant as Ty, the man from whom she had purchased the heroin.

**87Thereafter, police began surveillance of the Green Street home. During the surveillance, police saw defendant and a woman leave the home and drive away. They followed defendant and eventually executed a stop of defendant's vehicle and arrested defendant for drug distribution.

The arresting officers told defendant that the officers were in the process of applying for a search warrant for his home. According to the officer, defendant responded that "there was no need to do all that, that [defendant] just had a little in the house and he would take [him] to it." Defendant signed two consent-to-search forms, one permitting police to enter and search defendant's home and one permitting police to search defendant's vehicle. Police found nothing during the subsequent vehicle search, but they did find thirty-five glassine baggies in the house with "Thriller" stamped on them; the baggies contained "a white powdery substance believed to be heroin." Police also found 75.01 grams of marijuana2 in defendant's home.

An Atlantic County Grand Jury indicted defendant for second-degree possession of heroin with the intent to distribute within 500 feet of public housing, a public park, or public building, contrary to N.J.S.A. 2C:35-7.1 (count one); third-degree possession of marijuana with the intent to distribute within 500 feet of public housing, a public park, or public building, contrary to N.J.S.A. 2C:35-7.1 (count two); third-degree distribution of CDS (heroin), contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count three); third-degree possession of heroin with the intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count four); third-degree possession of one or more ounces of marijuana with the intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(11) (count **88five); and fourth-degree possession of more than fifty *942grams of marijuana, contrary to N.J.S.A. 2C:35-10(a)(3) (count six).3

Defendant rejected the State's pretrial plea offer of a five-year term of imprisonment with a two-and-a-half year period of parole ineligibility and instead chose to proceed to trial. According to defendant, he rejected the State's plea offer because it was his understanding that his maximum sentencing exposure was twenty years' imprisonment with a ten-year period of parole ineligibility.

One day before trial, the State moved under Rule 3:7-4 to amend count two of the indictment from third-degree possession of marijuana with the intent to distribute within 500 feet of public housing, a public park, or public building, to a second-degree offense. The prosecutor claimed that:

if you take it in conjunction with the grand jury transcripts which I have where they talk about the quantity, and additionally count [five] of the indictment where it is clear the marijuana is over one ounce, the defendant is placed on notice, it is a second-degree offense. It is an error in form, not an error in substance.

Defense counsel argued that elevating the charge to a second-degree offense was a substantive alteration, not merely an alteration in form.

The trial court granted the State's motion and amended count two of the indictment from a third-degree offense to a second-degree offense. The court stated,

They are not amending the substance of the charge at all. There is and I am satisfied a typographical error in that it is a second-degree, and while it would have been preferable to include in the body of that count the amount of marijuana. From reading count [five], it's clear that the grand jury had information that they believed to be credible, so that they returned count [five] which specifically indicates the quantity of over one ounce.

During the presentation of the State's case, the prosecutor offered into evidence, through the testimony of an officer involved **89

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Bluebook (online)
182 A.3d 938, 233 N.J. 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dorn-nj-2018.