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State v. Benjamin


May 9, 2008


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-02-0269.

Per curiam.


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 prosecutor misled the grand jury into thinking there was an indictment pending against him when he recommended the grand jury "no bill the charges as to both," and the prosecutor's biased presentation and recommendation impinged on the independence of the grand jury in violation of State v. Hart, 139 N.J. Super. 565 (App. Div. l976), and State v. Butterfoss, 234 N.J. Super. 606 (Law Div. l988).

The trial court rejected these arguments, as do we. It found, as a private citizen, appellant did not have standing to bring the motion. Judge Rosenberg acknowledged the relief sought in the present case, i.e. asking the court to review the prosecutor's conduct in order to re-present to the grand jury, was not exactly on point with the remedy sought in Loigman. He concluded, however, that appellant's request "ultimately creates the same underlying problems envisioned by the Supreme Court in its decision[,]" noting the Court's instruction that "trial courts are not to assess the merits of a complaint and look over the shoulders of prosecutors." Judge Rosenberg continued, quoting from Loigman, supra:

[T]the regime suggested by the Appellate Division [affording a citizen direct access to a grand jury via the Assignment Judge] would require an intolerable level of intrusion by the judiciary into an executive function [-- t]he exercise of prosecutorial discretion in deciding not to pursue an investigation or press a charge. [183 N.J. at 146.]

The judge further commented that appellant was "asking this [c]court to do exactly that which the Supreme Court has admonished the courts not to do." The judge concluded it was improper to speculate that the prosecutor had any "nefarious motives" in recommending all charges be no-billed. He further noted concern with ordering re-presentment based on the request of a private citizen, albeit a complainant, citing to Justice Albin's comment in Loigman that "[i]n some cases, a private person might be bent on pursuing an ill-motive or vindictive agenda," id. at 145, and the fact there was a pending civil action for breach of contract filed by defendant. Accordingly, the court found no basis to interfere with the prosecutor's discretion in presenting and re-presenting the matter to the grand jury.

Additionally, the court addressed the merits of appellant's claim of prosecutorial misconduct, finding it did not rise to the level of arbitrariness or abuse disapproved of in Hart and Butterfoss. The court concluded that the prosecutor did not interfere with the grand jury's independent determination of probable cause or put pressure on it not to indict defendant.

Reliance on Loigman was appropriate. As the Supreme Court commented, prosecutors have broad discretion in pursuing legitimate claims of wrongdoing and, unlike private citizens, they are governed by the Rules of Professional Conduct and case law to ensure fairness in the process. Loigman, supra, 183 N.J. at 144. The Court disapproved of any system where a complainant dissatisfied with a prosecutor's decision to downgrade or dismiss a complaint without presenting it to the grand jury could seek permission from the Assignment Judge of the county to present the case to the grand jury. Id. at 146. The Court noted, "[s]uch an erosion of the prosecutor's screening authority would be disruptive of the orderly and fair disposition of cases and increase the likelihood that wrongful indictments will be returned." Id. at 147. Analogously, it would be just as disruptive, intrusive and inappropriate in the present case to allow appellant standing to utilize the courts to compel the prosecutor to re-present the case to another grand jury in a manner more to his liking merely because he was dissatisfied with the ultimate result.

The sole witness before the first grand jury was the police officer who took appellant and his employee's statements. Although the officer testified about his observations of appellant's injuries, he had no independent knowledge of the incident. Contrary to appellant's assertion, a prosecutor has a duty to present exculpatory evidence to a grand jury when he is aware of it and it directly negates guilt. Hogan, supra, 144 N.J. at 237. Thus, it was entirely appropriate for the prosecutor's office to re-present the case after defendant explained he had not received the January 2005 target letter and requested the opportunity to testify before a grand jury. Moreover, even if appellant had standing to challenge the prosecutor's actions in re-presenting the case, the record is devoid of any evidence that the prosecutor impinged on the second grand jury's independence or improperly influenced its determination to no-bill the charges.



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