On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-03-00192.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and S.L. Reisner.
The State appeals from an August 15, 2007 trial court order dismissing with prejudice an indictment against defendant Trina Chancey. We affirm.
These are the most pertinent facts.*fn1 This appeal arises from a November 1, 2006 incident in which a gun was discharged at defendant's home. Defendant's live-in boyfriend, Brandon George, initially gave police a sworn statement alleging that during a dispute, defendant, an Irvington police officer, pointed her service weapon at him and fired one shot. George was not injured. When he left the house shortly after the incident, George also told a local crossing guard that defendant had tried to kill him. Defendant's version of the event was that George first hit her in the head and then attempted to retrieve her service weapon from a closet; the gun discharged as she was struggling with him over the weapon.
A month later, on December 7, 2006, George gave a defense investigator a sworn statement recanting his earlier accusation. In this statement, George attested that after the couple had an argument, defendant retrieved her service weapon because she was leaving the house and was required to carry the gun with her at all times. However, George misinterpreted her actions, thinking she was intending to shoot him; they struggled over the gun, and it went off accidentally. When called before the Grand Jury, George appeared but declined to testify, invoking his Fifth Amendment right against self-incrimination.
Nonetheless, defendant was indicted on March 7, 2007, on charges of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and second-degree official misconduct, N.J.S.A. 2C:30-2. The Irvington Police Department also initiated a disciplinary action against defendant and suspended her without pay, although a hearing on the charges was held in abeyance pending the outcome of her criminal trial.
On May 10, 2007, George told Prosecutor's Detective Daniel Seib that he would invoke his Fifth Amendment rights if called to testify at the trial. George did not respond to Seib's subsequent attempts to reach him. Thus, the State was aware in May 2007 that George was an uncooperative witness.
Judge Peim and all counsel signed a pre-trial memorandum on June 25, 2007, setting a trial date of August 6, 2007. In agreeing to the trial date, the State represented that it was prepared to try the case. The pre-trial memorandum advised both sides that "[a]ny problems with witness availability must be brought to the Court's attention within ten (10) days of the signing of this Memorandum," or as soon as discovered thereafter. The Memorandum also recited that the State had offered to let defendant plead guilty to the disorderly-persons offense of harassment in exchange for a recommended sentence of probation and forfeiture of public employment. Defendant declined the offer.
The prosecutor mailed George a trial subpoena, but did not attempt to locate him or personally serve him with a trial subpoena until shortly before the scheduled trial date. A few days before the trial, the assistant prosecutor applied for and obtained the Attorney General's approval of a petition for immunity for George; it was signed on August 6, 2007. However, the State did not advise the trial judge that it was not prepared to proceed with the trial. Accordingly, a jury was selected on August 7.
On August 8, before the jury was sworn, the assistant prosecutor moved before Judge Peim to dismiss the indictment without prejudice, claiming that he needed more time to locate George. When questioned by the judge concerning the State's failure to advise the court sooner as to its problems with George, the assistant prosecutor responded that the State intentionally delayed serving George with a trial subpoena or applying for an immunity petition, on the theory that George was more likely to appear for trial if he was notified at the last minute. When the judge reminded the assistant prosecutor that the court picked a jury based on information from court staff that the State was prepared to proceed to trial without George, the assistant prosecutor explained that he initially believed the case could be presented to the jury without George, based on other evidence including the excited utterance to the crossing guard. However, he changed his mind after consulting with a more senior attorney in the office.
Defense counsel strenuously objected to a dismissal without prejudice. Counsel contended that her client would be severely prejudiced by delay because she was suspended without pay from her job and the police disciplinary hearing could not proceed until the criminal trial was concluded. She also argued, and the State agreed, that if the court dismissed the case for ...