On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-02-00070.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Simonelli.
Plaintiff State of New Jersey appeals from the November 13, 2008 order denying its motion for reconsideration of the September 22, 2008 order granting defendant Barry Deans' motion to dismiss an indictment for third-degree burglary pursuant to N.J.S.A. 2C:18-2. The State contends that the dismissal was procedurally improper, and that it presented sufficient evidence to the grand jury to withstand dismissal. Because we conclude that the State presented some evidence as to each element of the alleged crime, we reverse.
The State presented a one-count indictment against defendant for third-degree burglary stemming from his alleged break-in at the Phillipsburg Mall. Raymond McDonald, a security officer at the mall, testified before the grand jury that on October 10, 2007, at approximately 1:50 a.m. when the mall was closed to the public, he saw a black male wearing a long-sleeve shirt and blue jeans inside the mall. McDonald called the Warren County Communication Center, which dispatched police officers to the mall. While on the phone with the dispatcher, McDonald lost sight of the individual. He headed in the direction the individual went and discovered that the locked entrance doors to the mall had been pried open. Upon exiting the doors, he encountered two police officers, who had the individual in custody. McDonald identified defendant as the individual he had seen inside the mall.
Detective Scott Robb of the Pohatcong Township Police Department testified before the grand jury that when he arrived at the mall, Sergeant Francesco Pagano and Lieutenant Dean McBride were already there, and Pagano's vehicle was directly behind a silver BMW station wagon. According to Robb, Pagano told him that when Pagano arrived at the mall, he saw the BMW and pulled it over. Defendant was the driver and said he was there to meet a girl. Shortly after stopping defendant, McDonald came out of the mall and identified defendant as the individual he had seen inside the mall. Robb continued that Pagano said he then went to the BMW, noticed papers in the bush area outside the right side of the vehicle, and picked up the papers, which were Mapquest directions from a residence in New York to different malls in New Jersey.
Robb also testified that he "processed" defendant's vehicle at the scene and recovered from inside the BMW defendant's cell phone, two GPS units, three black gloves, a black and yellow pry bar with a sticker, a piece of sticker of shavings from a pry bar, a plaid bag, 14-inch black and yellow bolt cutters, a 24-inch wrecking bar, and black and tan gloves. From outside the BMW, he recovered the Mapquest directions and sticker shavings from the pry bar, that were found on the pried-open mall entrance door. Robb also took photos at the scene.
Robb continued that defendant was taken to police headquarters and interviewed.*fn1 According to Robb, defendant admitted that he broke into the mall, intending to break into soda machines, and that defendant also "pinpointed that he breaks into certain machines . . . [that] have a Plexiglas front." Robb indicated that there were two such soda machines in the mall, one of which could been seen from the pried-open entrance door. Based on McDonald's and Robb's testimony, the grand jury indicted defendant on the burglary charge.
On June 19, 2008, a State grand jury returned a seven-count indictment against Pagano for perjury, falsifying or tampering with public records, and official misconduct in an unrelated matter, State v. Orion Gray, Indictment No. 07-05-200-I. The indictment stemmed from evidence recovered by Pagano after an alleged consent search of the vehicle in that case and other items allegedly recovered in plain view. The search revealed a handgun inside the vehicle. The State dismissed the Gray indictment. Upon learning of the disposition in Gray, defendant's counsel filed a motion to suppress evidence seized by Pagano in this case. Defense counsel later wrote to the judge requesting dismissal of the indictment as well.
The motion judge held a hearing on defendant's motions, at which McDonald and Robb testified.*fn2 Pagano invoked his Fifth Amendment*fn3 right and did not testify. McDonald's motion testimony was consistent with his testimony before the grand jury. Robb's testimony was also similar; however, it differed in significant ways. For example, Robb testified that Pagano, not Robb, initially searched defendant's vehicle, that Pagano searched the vehicle pursuant to a consent to search he allegedly obtained from defendant, that Pagano was the officer found the pry bar, glove, burglary tools and Mapquest directions, and that the items seized from inside the vehicle were in plain view.
During the motion hearing, the prosecutor stated that the State was not going to use any of the consent-to-search information that Pagano had provided, or the plain view justifications raised by Pagano.
In a written decision, the judge found that the because the State decided not to rely on any evidence generated by Pagano, it removed any evidence which the grand jury may have used to indict defendant. The judge concluded that Robb's jury testimony was "based in its entirety upon  Pagano's description of the stop and arrest[,] and that this evidence "is so flawed that it . . . should not be allowed to stand as the basis for the indictment[.]" The judge dismissed the indictment, stating that the State could seek a new indictment not based on any evidence derived from Pagano's involvement.
The State filed a motion for reconsideration, which the judge denied. The judge concluded that "evidence should be confident, And if the prosecution decides not to use that evidence because it's been compromised than that indictment is fast healed. It has no effect . . . I don't think you can ...