On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Furman, Brody and Scalera. The opinion of the court was delivered by Scalera, J.A.D.
This appeal by the State arises from a dismissal of the entire thirty-five count indictment against defendants in connection with unlawful disposal of hazardous waste. We reverse and remand.
On October 24, 1984, a State Grand Jury returned a multiple count indictment charging defendants, Ciba-Geigy Corporation (Ciba), Toms River Chemical Corporation (Toms River), William Bobsein (Bobsein), David Ellis (Ellis), James A. McPherson (McPherson) and Robert Fesen (Fesen) with unlawful conduct concerning the abandonment and disposal of certain hazardous waste and related offenses. While the defendants are charged with various offenses not every defendant is named in each count.
Prior to trial, defendants moved to dismiss the indictment on the grounds that less than the necessary twelve grand jurors had been adequately informed of the evidence forming the basis of the indictment. The trial judge granted the motion and dismissed all counts of the indictment based on a finding that there were not twelve grand jurors qualified to vote on the indictment.*fn1
State Grand Jury No. 147, consisting of 23 members was duly impanelled. The presentation of evidence underlying this indictment commenced on March 21, 1985 and continued through October 24, 1985 during which 20 days of testimony was presented. For a reason unexplained by the record on appeal, evidence was also taken by "another grand jury" during that period, on August 1, 1985 and again on October 11, 1985. A transcript of the August testimony before the substituted grand jury was introduced to the instant grand jury as an exhibit on September 19, and the transcript from the October session was distributed to the entire panel on October 24, 1985, the same date on which an indictment was returned. Originally there were 23 grand jurors, but only 17 ultimately voted because six were "absent" during the final three months of testimony.
Beginning on October 3, 1985 the Assistant Attorney General (AG) indicated several times to the grand jurors that they would be expected to vote on October 24th. On October 17th, he specifically advised them about becoming "qualified," in the following words:
Secondly, let me just talk a little bit about next week. Those of you who may have missed any particular days of testimony will have to be qualified next week to vote, and the qualification procedure is that you will be given the transcript of that day to review, and when you are done with that procedure we can then speak in terms of the proposed indictment.
At that point in time we will have for you transcripts of those days that any one of you individually may have missed, so that you might review them and become familiar with them, and so that you will then be qualified to deliberate and vote . . .
On October 24, 1985, the day on which the indictment was returned, after the last witness had been presented, the AG informed the grand jurors that:
The first thing we must do is present to those of you who were absent on any given days a transcript of those days so that you may be qualified to vote in this case . . . What I'd like to do is if I could present to each Grand Juror, by Exhibit number, the testimony of those days which they missed.
After distributing some exhibits he stated:
Again, to explain what you're doing, this is of course required in order to enable you to feel confident that you know the case with that degree of knowledge that you could feel confident in voting one way or the other.
With that, we will leave the room and if you have any questions, of course you may call us. When you are completed with your qualification procedures, if the ...