On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 08-08-0689.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued October 23, 2009
Before Judges Parrillo, Lihotz and Ashrafi.
On our leave granted, the State appeals from an order dated February 10, 2009, dismissing the attempted murder count of a superseding indictment. Although the order and the court's oral decision did not expressly state so, we understand the dismissal to be with prejudice. The trial court concluded that the State failed to overcome a presumption that it sought the superseding indictment for vindictive and retaliatory reasons after defendant rejected a plea offer and insisted on trial by jury. Because the court erred in application of the law, we reverse.
The State alleges that on March 2, 2007, defendant Ediberto Ruberte stopped on the shoulder of a highway in Gloucester County and initiated a fight with Stephen Pupo, who had also stopped his vehicle on the shoulder. The two were strangers who had become involved in a dispute while driving, each blaming the other for tailgating. Ruberte and Pupo disputed who threw the first punch. Ruberte was armed with a pocket knife and stabbed Pupo six times. Pupo was unarmed.
A woman motorist stopped to help, and Ruberte returned to his vehicle and drove away. At some distance from the scene, Ruberte stopped again on the highway and threw away the knife. Then, he drove on to his place of employment, stating later that he knew the police would soon come.
Pupo had noted defendant's license plate number and gave it to the helping motorist, who immediately called the police. Later on the same day, the police went to defendant's place of employment to question him. Defendant admitted his role in the fight and took the police to the location alongside the highway where he had thrown away the knife, but the police could not find it. Defendant also told the police that Pupo had punched him first and knocked him down before he "poked" Pupo.
Pupo was hospitalized for several days and then released. The extent of his injuries is disputed.
On June 27, 2007, a Gloucester County grand jury indicted Ruberte on the following six charges: count one, second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1); count two, third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d; count three, third-degree hindering prosecution, in violation of N.J.S.A. 2C:29-3b(1); count four, fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5d; count five, fourth-degree obstructing the administration of law, in violation of N.J.S.A. 2C:29-1; and count six, fourth-degree tampering with physical evidence, in violation of N.J.S.A. 2C:28-6(1).
On April 18, 2008, the trial court conducted a pretrial conference, at which the parties filed a pretrial memorandum in accordance with Rule 3:9-1(e). In the memorandum, defendant and his attorney acknowledged the State's offer that defendant plead guilty to count one of the indictment in exchange for the State dismissing the other five counts and making no sentencing recommendation. In other words, the State offered an "open plea" to the second-degree charge of aggravated assault with a potential sentencing range of five to ten years in prison. Defendant rejected the plea offer, acknowledging that his rejection cut off further plea negotiations in accordance with Rule 3:9-3(g). The court set a trial date for August 4, 2008, later adjourned to September 2, 2008.
In preparing for trial, the prosecutor met with Pupo for the first time on August 12, 2008. The next day, the prosecutor appeared before a new grand jury and presented evidence seeking a superseding indictment. The grand jury returned a seven-count indictment on August 13, 2008, which made only one significant change from the original indictment - a new count one charging first-degree attempted murder, in violation of N.J.S.A. 2C:5-1a(2) and 2C:11-3a(1).*fn1 As a result of the superseding indictment, trial was adjourned.
In December 2008, defendant filed a motion to dismiss the attempted murder charge on the ground that the prosecution had brought it vindictively because defendant declined the State's plea offer and demanded a trial. Defense counsel argued in his letter-brief that the superseding indictment was the State's unconstitutional attempt to "force" defendant to plead guilty rather than stand trial. In support of that argument, defense counsel alleged that: 1) no new evidence had been developed since the first indictment or presented to the second grand jury, 2) in the second grand jury, the State failed to present exculpatory evidence of defendant's contention that he was defending himself in the fight, 3) the State presented inaccurate medical information to the second grand jury, 4) the only witness before the second grand jury was the same State Police sergeant who had testified before the first grand jury, and he was not qualified to present medical evidence, and 5) the prosecution may have been motivated by defendant's Puerto Rican ethnicity in comparison to Pupo, who is caucasian. Defense counsel admitted that he had "absolutely no facts or even any hint" to support his fifth allegation, ethnic bias.
At the time of argument on defendant's motion, defense counsel further admitted that he had no direct proof that the prosecutor had sought the superseding indictment for an "invalid reason." He said he was relying entirely on the "facts and circumstances" and argued that "it's unfair to use the power of the State and the power of ...