On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-02-0269.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 16, 2008
Before Judges Axelrad and Sapp-Peterson.
Carlos Lizarbe, a private citizen and alleged victim, appeals from the court's November 3, 2006 order denying his motion to compel the prosecutor to re-present to the grand jury the criminal matter against defendant, Ryan Benjamin, and the January 5, 2007 order denying his motion for reconsideration. The court found appellant lacked standing to bring his motion and, even if he had standing, the prosecutor did not abuse his discretion in re-presenting the matter to the grand jury, which resulted in a determination of "no bill" against defendant. We affirm substantially for the reasons articulated by Judge Ned Rosenberg in the record following oral argument and in his letter accompanying the reconsideration order.
On July 21, 2004, defendant, the property owner of 39 Hecker Street in Newark, and appellant, a home improvement contractor hired to perform services, had a confrontation concerning the completion of the contract. Appellant and his employee, Jose Esquivel, went to police headquarters to report the incident. Appellant told Officer Perez that during the argument, defendant punched him in the side of his head, pushed him, and scratched him with a nail file on the side of his neck. According to appellant, defendant then took out a 9mm pistol from his right boot, loaded it, pointed it at appellant and hit him with it on the back of his head. Appellant showed the officer he was bleeding and scratched, but no photographs were taken. Esquivel reported he observed defendant pointing a handgun at appellant's head. Based on these statements, the police charged defendant with aggravated assault, possession of a weapon, and possession of a weapon for an unlawful purpose.
On January 31, 2005, the matter was presented to the Essex County Grand Jury. Target letters were sent to appellant and defendant inviting them to testify, but neither appeared. The sole witness was Officer Perez who testified he took appellant's complaint and observed appellant had "numerous scratches on the side of his face and neck" and a bump on his head "consistent with where he had indicated he had been struck with a firearm." The grand jury returned an indictment against defendant for third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.
At some point, defendant filed a cross-complaint against appellant for simple assault. After defendant was indicted, he notified the prosecutor's office he had not received the target letter because he had moved, and requested he be allowed to testify about the matter. The prosecutor re-presented the case against defendant to a different grand jury on January 9, 2006, along with the assault complaint against appellant. After signing waivers of immunity, the two parties testified, as did Esquivel. The parties gave divergent accounts of what happened at the job site. Appellant testified that defendant began arguing with him because he was unable to complete the job within defendant's timeframe. He related that defendant became furious and punched him in the face, jumped on top of him, and they began to struggle. After other workers at the site separated them, defendant extracted a 9mm pistol from his pants leg, cocked it, and pointed it at appellant's head. Defendant told appellant he would give him one more day to complete the work and appellant had to return $3,000 of the money advanced to him. Defendant did not discharge his firearm but hit appellant in the head with it, causing extensive bleeding. Finally, defendant drove off and appellant and Esquivel went to the police station where they gave sworn statements. Esquivel testified he observed defendant pull a handgun from his pants leg and point it at appellant, and further observed appellant was bleeding, although he did not see defendant hit him with the gun.
Defendant testified he and appellant got into a confrontation at the Hecker Street property after he requested appellant meet him there. At that time, appellant had not worked on the house for about two weeks, and when defendant got to the job site, he noticed all of the materials he had supplied for the renovation had been removed. Appellant told defendant he needed more money to finish the job and had used the materials defendant had supplied at another work site. Defendant refused to give appellant any more money and told appellant he wanted him to either return the missing building materials or refund some of the money advanced to him. Appellant refused to do either and attempted to leave, prompting defendant to step in front of him. Two of appellant's employees then grabbed defendant and appellant hit him in the face twice. The two men then fell to the ground, wrestling, tussling, fighting and punching each other. Defendant sustained several bruises. Defendant denied pointing a gun at appellant or owning a handgun. Defendant explained he was arrested when he went to the police station to make a complaint against appellant because appellant had gotten there first.
The prosecutor instructed the jurors to consider the testimony of the witnesses, noting there were allegations against each, i.e., an assault allegation against appellant and an aggravated assault allegation involving the pointing of a weapon against defendant, and the evidence indicated no weapon was found. He recommended the grand jury "no bill" the charges as to both parties. At the conclusion of testimony, the grand jury voted "no cause of action" on the matter. On January 11, 2006, Indictment No. 05-02-0269 against defendant was dismissed on motion of the prosecutor, granted by Judge Rosenberg on January 23, 2006.
Appellant subsequently filed a motion in the Law Division to compel the prosecutor to re-present the case against defendant to the Essex County Grand Jury based upon alleged prosecutorial misconduct. The motion was denied on November 3, 2006, following oral argument, as was appellant's motion for reconsideration. This appeal ensued.
Appellant renews the arguments made to the trial court that he has standing to bring this action. On the merits he argues the second grand jury hearing was unnecessary, and the prosecutor violated his duty toward the second grand jury, which necessitates restoring the first indictment or re-presenting the matter without defendant being called to testify.
Appellant argues the victim of a crime has standing to address the inappropriate conduct of the prosecuting attorney in a grand jury proceeding. Otherwise, appellant urges, the prosecutor would have "unbridled power" to do what he or she wanted in favor of a defendant and the victim would be left without recourse. He emphasizes that besides being the victim with a direct interest to see that the person who assaulted him is properly punished, he also has a pecuniary interest in the outcome of the litigation pursuant to N.J.S.A. 52:4B-64, providing for a civil action by a crime victim to recover money damages from the funds of a convicted person. Appellant argues the trial court incorrectly relied on In re Loigman, 183 N.J. 133 (2005), which precludes a private person/victim from presenting an allegation or evidence of a crime directly to a grand jury. Appellant emphasizes he reported the crime through the normal channels by filing a criminal complaint with his local police department, which was forwarded to the grand jury, resulting in an initial indictment against defendant. Appellant relies on the civil cases of New Jersey State Chamber of Commerce v. New Jersey Election Commission, 82 N.J. 57 (1980), and New Jersey Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402 (App. Div.), certif. granted, 152 N.J. 13 (1997), appeal dismissed as moot, 152 N.J. 361 (1998), in support of his claim of standing.
On the merits, appellant contends the January 2005 indictment against defendant, which was based on the testimony of the Newark police officer who took the statements and viewed appellant's injuries, "was more than adequate" and should have been the last word on the matter. According to appellant, the prosecutor needlessly and improperly reconvened a second grand jury a year later as part of an "unexplained agenda," contrary to State v. Hogan, 144 N.J. 216, 235 (1996), which "decline[d] to adopt any rule that would compel prosecutors generally to provide the grand jury with evidence on behalf of the accused . . . [and thereby] . . . unduly alter the traditional function of the grand jury by changing the proceedings from an ex parte inquest into a mini-trial." Appellant contends the prosecutor then compounded the error in a variety of ways at the second grand jury proceeding, with a purpose to mislead the jurors and get the matter against defendant dismissed. For example, the prosecutor did not refer the jurors to Officer Perez's testimony from the first grand jury regarding his observation of appellant's injuries, nor did he suggest appellant bring the officer to testify about his bruises or the other workers to testify about the gun incident. Moreover, according to appellant, because the police report noted no weapons were found, the prosecutor was remiss in not commenting that it would have been unlikely for defendant to have walked into the police station with a gun on his person and that his home was never searched for a gun. Appellant also claims the ...