On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 06-09-0316.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Sabatino.
Defendant, Daniel Davies, appeals from two discrete and successive rulings of the Criminal Part. First, he appeals an order dated March 23, 2007 denying his motion to dismiss the indictment because of alleged failure by the State to present exculpatory evidence to the grand jury. Second, he appeals the trial court's inclusion, as part of its admission of defendant on August 12, 2008 into the pretrial intervention ("PTI") program, of a condition that defendant plead guilty to the third-degree offense of resisting arrest, N.J.S.A. 2C:29-2a(3)(a). Having considered defendant's arguments in light of the record and the applicable law, we affirm the denial of the motion to dismiss the indictment. However, we vacate the inclusion of the impermissible extraction of a guilty plea as a condition of defendant's admission into the PTI program.
The indictment charged defendant with second-degree disarming of a law enforcement officer, N.J.S.A. 2C:12-11(a) (Count One); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (Count Two); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (Count Three). The indictment stemmed from an incident in Montague Township on June 24, 2004, during which defendant confronted Sussex County employees who were engaged in tree-trimming activities near defendant's rural dwelling and two sheriff's officers who were on the scene for traffic control during the tree removal. Defendant and his wife apparently challenged the authority of the County employees to be on the premises, accusing them of trespassing. After sticks and rocks were hurled at one of the workers who was in an aerial bucket, a sheriff's officer told defendant that he was under arrest.
According to the State's proofs, defendant resisted being handcuffed and tried to remove the gun of one of the officers from its holster. He then fled into his house with other family members. Shortly thereafter, one of the County workers saw defendant pointing what was perceived to be a gun out of an upstairs bedroom window. After about an hour passed, defendant reemerged from the house, but was yelling and acting aggressively. An officer tackled defendant and he was eventually subdued and handcuffed.
In moving to dismiss the indictment, defendant claimed that the prosecutor failed to inform the grand jurors about an ongoing dispute between defendant and the County road department, including prior civil litigation resulting in a court order that had restricted the County's tree-cutting authority. Defendant also contends that the grand jurors should have been presented with a 9-1-1 audiotape, or a transcript of that tape, which allegedly portrayed defendant and his family in a more favorable light.
In his oral ruling denying the motion to dismiss the indictment, the trial judge concluded that the State had no obligation to present to the jurors the additional background information concerning defendant's ongoing dispute with the County, nor was it obligated to present any other allegedly exculpatory information under State v. Hogan, 144 N.J. 216 (1996). Among other things, the trial judge found that one of the exhibits that was presented to the grand jury did, in fact, reveal that there was a pending "legal action" between defendant and the County concerning proposed tree-cutting that was scheduled to be heard by the civil court. The trial judge also observed that, regardless of the merits of defendant's position in the civil action, he had no right to resist the police when they attempted to arrest him. The judge further noted that the grand jury "is not intended to be a full adversarial process[,]" that the State's presentation to the grand jurors was not "off the mark[,]" and that defendant would still have the ability to adduce exculpatory evidence if the matter were tried.
Our standard of review in examining the trial court's denial of the motion to dismiss the indictment is limited. A decision on whether to dismiss an indictment is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). An indictment should be dismissed "'only on the clearest and plainest ground,' and only when the indictment is manifestly deficient or palpably defective." Hogan, supra, 144 N.J. at 228-29 (quoting State v. Perry, 124 N.J. 128, 168 (1991)) (internal citations omitted).
We detect no such abuse of discretion or manifest deficiency in the grand jury process here. Although Hogan acknowledged that grand jurors should be advised of certain "clearly exculpatory" proof that "directly negates the guilt" of a defendant, the Supreme Court also noted in Hogan that an indictment should be dismissed on that basis only in "rare" situations, and that "courts should act with substantial caution before concluding that a prosecutor's decision [to not present certain allegedly-exculpatory proofs] was erroneous." Id. at 236-39. Given these standards, we are satisfied that the denial of defendant's motion to dismiss in this case was appropriate, substantially for the reasons articulated in the trial judge's oral opinion.
We reach a different conclusion on the PTI issue. The record clearly shows that the prosecutor would consent to defendant's admission into the PTI program only if defendant, as a condition of that disposition, would plead guilty to a third-degree offense of resisting arrest. The prosecutor imposed that condition after defendant had initially been rejected as a candidate for PTI, and the trial court had upheld that initial rejection. The plea conditions also required that defendant be enrolled successfully in PTI for a period of twelve months and perform one hundred hours of community service. If defendant successfully completed PTI, the guilty plea would then be vacated and the criminal charges dismissed. If, on the other hand, defendant failed PTI, then and only then could he appeal the original rejection of his admission into PTI.
In an order dated November 16, 2007, the trial court rejected defendant's motion to strike the guilty plea as a condition of the PTI arrangement. Subsequently, on August 12, 2008, defendant entered into a conditional guilty plea, agreeing to abide by the terms of the PTI program and pleading guilty to the third-degree resisting arrest charge. Paragraph 13 of the plea agreement recites these dispositional terms as follows:
PTI with 1 year as specified in consent order of enrollment. Plea is pursuant to R. 3:9-3(f) and defendant has a right to appeal prior determination regarding the requirement ...