On appeal from the Superior Court New Jersey, Law Division, Middlesex County, Indictment No. 08-07-01249.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2010
Before Judges Reisner and Yannotti.
By leave granted, the State appeals from a January 20, 2009 order of the trial court dismissing a portion of the indictment charging defendant James D. Dixon with first-degree armed robbery, N.J.S.A. 2C:15-1b. Based on the Supreme Court's recent opinion in State v. Rolon, 199 N.J. 575 (2009), which was issued after the trial court rendered its decision, and the law applicable to suppressing indictments, we reverse and remand.
Defendant was accused of committing a home-invasion robbery. At the time of the robbery, he had a pocket knife in his back pocket. Defendant confronted and may have physically assaulted the homeowner, whom police found tied up and bleeding from his face and nose.*fn1 However, there is no evidence that defendant drew out or used the knife, or threatened anyone with it, or that the victim knew defendant had a knife. The homeowner has amnesia and does not remember the incident. Based on these facts, the trial court concluded that the State did not present a prima facie showing that defendant was "armed" during the commission of the robbery, within the meaning of N.J.S.A. 2C:15-1b.
"[T]he grand jury must determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it." State v. Hogan, 144 N.J. 216, 227 (1996). "An indictment should only be dismissed when it is 'manifestly deficient or palpably defective,' and then only when the grounds for the dismissal can be described as the 'clearest and plainest.'" State v. Mason, 355 N.J. Super. 296, 298 (App. Div. 2002) (citations omitted). "An indictment that appears sufficient on its face stands if the State presents the grand jury with at least 'some evidence' as to each element of a prima facie case." State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987) (citation omitted).
However, "where the indictment is factually unsupported either on its face or in the grand jury proceedings, the dismissal is appropriate." Mason, supra, 355 N.J. Super. at 299. We review the trial court's decision to dismiss the indictment for abuse of discretion. Ibid. With those standards in mind, we turn to the applicable law concerning armed robbery.
The robbery statute provides:
Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor . . . is armed with, or uses or threatens the immediate use of a deadly weapon. [N.J.S.A. 2C:15-1b.]
In its initial appellate brief, the State argued that the statute applies whenever the defendant possesses a knife and has immediate access to it, as in a pocket. Similarly, in a petition for direct certification filed with the Supreme Court, the State argued that this case presented the question of "whether mere possession of a knife is sufficient to elevate robbery to a first-degree crime." However, after this appeal was briefed, the Supreme Court decided State v. Rolon, supra, definitively answering that question in the negative. 199 N.J. at 585.
Both sides then provided us with supplemental briefs addressing Rolon. Backpedaling somewhat, the State argues in its supplemental brief that the trial court's ruling dismissing the indictment was premature. The State now contends that it should have the opportunity to convince a petit jury that "the totality of the circumstances demonstrate[s] defendant's intent to ...