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State v. Meltzer

Decided: October 20, 1989.


Diana, A.j.s.c.


The instant matter is before the court on motion by defendant Mark H. Meltzer requesting dismissal of two indictments. This pretrial criminal proceeding raises a novel issue entailing interpretation of the "bail jumping" statute (N.J.S.A. 2C:29-7) as it relates to the statutory period of time limiting prosecution (N.J.S.A. 2C:1-6) thereof. This court considered the following uncontroverted facts in resolving this and other issues presented by defendant's motion.

On November 13, 1978, defendant was stopped for speeding on Route 80 by a New Jersey state trooper. A search of defendant's rental vehicle disclosed several bags of suspected controlled dangerous substance ("CDS"), subsequently confirmed to be approximately 544 grams of marijuana. Additionally, a search of defendant's person revealed an address book containing the following entries: "(1) Joe Gaeta, gets lbs, for us. 305-931-7833; (2) Marc Palex, may front lbs. 305-032-3091; (3) Marty, get lrg. lbs., low price (Atlanta) 404-451-9152."

Defendant was arrested and charged with possession of CDS (N.J.S.A. 24:21-20[a-4]) and possession with intent to distribute same (N.J.S.A. 24:21-19[a-1]). At the time of his arrest, defendant proffered as his own, a Florida address. Bail was set at $10,000/10% cash terms, and thereafter, defendant posted bail and was released. On April 29, 1979, defendant was indicted by a Warren County grand jury on both of the aforementioned charges (indictment #I-250-J-78).

After several adjournments secured by defendant's counsel ("counsel"), the arraignment for those charges was set for September 14, 1979. On that date, counsel advised the Warren County prosecutor's office (the "State") that defendant was incarcerated in Iowa, and consequently would not appear. As a result, Superior Court Judge Bry-Nildsen revoked defendant's bail and issued a bench warrant for his arrest.

Shortly thereafter, the State obtained a Chicago, Illinois address for defendant from review of CDS Registry Act records. Correspondence mailed in late 1979 to both the Florida and Illinois addresses was returned "addressee unknown." By way of its moving papers, the State alludes to various discussions it engaged in with counsel, however, details no specific efforts it conducted to reclaim and prosecute defendant from this time until mid-1987.

On June 25, 1987, the State received a telephone call from counsel advising that defendant was residing somewhere in the Chicago area and wished to engage in a plea arrangement pertaining to his outstanding charges. Upon demand by the State, counsel refused to disclose any further information claiming attorney-client privilege. Consequently, on July 2, 1987, counsel was subpoenaed to appear before a grand jury for the purpose of obtaining disclosure of defendant's whereabouts.

The ensuing grand jury proceedings proved fruitless and defendant's exact whereabouts remained unknown. Shortly thereafter, the grand jury handed down indictment I-87-07-0188 charging defendant with "bail jumping" (N.J.S.A. 2C:29-7);

alleging that from September 14, 1979 to date, defendant had wrongfully failed to appear in answer to his outstanding drug charges.

In or about November 1988, defendant applied for a realtor's license in Florida. Pursuant to a voluntary disclosure on the license application concerning his New Jersey arrest record, he was apprehended and brought into custody on November 13, 1988. Defendant now moves before this court for dismissal of both indictments pursuant to R. 3:10-2.

As recently observed by the Appellate Division in State v. Peterkin, 226 N.J. Super. 25, 38, 543 A.2d 466 (App.Div.1988), "our Courts have long held that a dismissal of an indictment is a draconian remedy and should not be exercised except on the clearest and plainest ground." See State v. New Jersey Trade Waste Assn., 96 N.J. 8, 18-19, 472 A.2d 1050 (1984) (quoting State v. Weleck, 10 N.J. 355, 364, 91 A.2d 751 (1952)). Judicial discretion to quash an indictment must not be exercised unless the indictment is "palpably defective." State v. Russo, 6 N.J. Super. 250, 254, 71 A.2d 142 (App.Div.1950), certif. den. 4 N.J. 456, 73 A.2d 212 (1950). "Similarly, if an indictment alleges all the essential facts of the crime, the charge is sufficiently stated and the indictment should not be dismissed unless its insufficiency is palpable'." New Jersey Trade Waste Assn., supra, 96 N.J. at 19, 472 A.2d 1050 (citing State v. LaFera, 35 N.J. 75, 81, 171 A.2d 311 (1961)).

In light of these legal benchmarks, the court initially focuses upon defendant's challenge to the drug charges indictment, which challenge apparently attacks the legal sufficiency thereof. As recognized by the New Jersey Supreme Court in State v. Wein, 80 N.J. 491, 404 A.2d 302 (1979), the ...

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