On appeal from Superior Court of New Jersey, Law Division, Gloucester County.
Fritz, Ard and Trautwein. The opinion of the court was delivered by Fritz, P.J.A.D.
[183 NJSuper Page 174] Defendant secured the dismissal of an indictment charging him with carnal abuse, without objection by the State, on the
ground that that particular offense had been abrogated by N.J.S.A. 2C:1-1 et seq. , the New Jersey Code of Criminal Justice (hereafter the new Criminal Code, or the Code). The State presented the same facts to a grand jury which returned an indictment for rape. This was dismissed by the trial judge on defendant's motion and over the objection of the State. The State appeals. We reverse.
The foregoing procedural facts are not the matter of any dispute. While neither of the parties has seen fit to provide the court with the grand jury testimony,*fn1 the comments of the trial judge, who read the transcripts of both presentations to the grand jury, on the motion to dismiss the superseding indictment, together with recourse to the indictment, reveal the nature of the allegations respecting the substantive charges. The victim was a 15-year-old female. After there was "slapping around and putting the girl in fear and force . . . two guys," who were companions of Jones and codefendants, raped the girl. According to the understanding of the trial judge reported in the motion transcript, "Chris Jones eventually [had] relations with her also."
The State first secured an indictment charging carnal abuse, contrary to the provisions of N.J.S.A. 2A:138-1.*fn2 Although the
prosecutor does not tell us the date on which the indictment was filed in the appendix to his brief where the indictment is reproduced (see R. 2:6-1(b)), he avers in his procedural history that it was on December 20, 1978 and, in any event, obviously prior to September 1, 1979, the effective date of N.J.S.A. 2C.*fn3 The matter had not been tried by September 1, 1979 and, accordingly, on November 20, 1979 defendant moved to dismiss the indictment on the basis that carnal abuse was no longer a crime under the new Criminal Code and N.J.S.A. 2C:1-1 c(3) required a dismissal. It would also appear that by April 22, 1980 this motion had not yet been heard. On that date the prosecutor forwarded the following letter to the trial court:
Please accept this letter/memorandum as my office's response to the defense motion to dismiss the above Indictment pursuant to N.J.S. 2C:1-1(c)(3).
As I discussed both with you and with Norman Muhlbaier, Esquire, attorney for the defendant, recently my office will not oppose the motion to dismiss. The argument made by defense counsel has considerable merit in light of the fact that although the investigation indicates force was used in the sexual assault, no force was alleged in the Indictment. We feel certain that we will be able to re-indict for forcible rape.
I have been in touch with the Cumberland County Prosecutor's Office. They will be informing me shortly if they wish to consolidate their complaints with the Gloucester County complaints for the purpose of re-indictment.
In light of this position, I will not be submitting ...