On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-03550.
The opinion of the court was delivered by: Miniman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, C.L. Miniman and Waugh.
Defendant Peter Triestman appeals on leave granted from an indictment charging him with fourth-degree criminal sexual contact. We now reverse and remand for further proceedings consistent with this opinion.
Defendant and N.P. were both employed at a furniture store in Newark. Defendant was N.P.'s boss. According to an incident report filed with the Newark Police Department, defendant asked N.P. to prepare a bed at the store so he could place pictures of the bed online to sell it. On May 22, 2008, defendant asked N.P. to examine the bed with him in an upstairs room. Once upstairs, defendant and N.P. began changing the bedding. While doing so, defendant told N.P. that the bed would look better with her laying on it naked. While saying this, defendant moved closer to N.P., placed his left hand on her shoulder, put his right hand on her breast over her clothes, and tried to kiss her. N.P. pulled away from defendant and walked away. She gathered her belongings, punched out her time card, and told her mother, who also worked in the store, that she was leaving. Defendant followed N.P. before she left, apologized for touching her, and told her not to tell anyone.
After leaving, N.P. informed her sister and father about what had happened. She and her sister then retrieved their mother from the store. Later that same evening, defendant called N.P.'s home and informed her and her mother that they were fired. N.P. then filed an incident report. Defendant was subsequently arrested on June 17, 2008--five days after the prosecutor authorized the police to charge him with one count of criminal sexual contact.
On September 23, 2008, a grand-jury orientation was held in Newark. The prosecutor read the definitions and provisions of N.J.S.A. 2C:14-1 and N.J.S.A. 2C:13-5 to the grand jury. The prosecutor then read N.J.S.A. 2C:14-2, which outlines sexual-assault offenses. The prosecutor next recited N.J.S.A. 2C:14-3, which defines the elements of criminal sexual contact. Finally, the prosecutor read the statute on criminal restraint, N.J.S.A. 2C:13-2.
The grand-jury hearing for this case was held on December 2, 2008. The prosecutor began by saying: "By way of complaint, the defendant has been charged with one count of fourth[-]degree criminal sexual contact and that's in violation of 2C:14-3(b). Does anyone need me to read the law? Okay. The State is going to be calling [N.P.]." The grand jury then heard the testimony of the alleged victim, including her responses to various questions asked by the jurors. N.P.'s testimony largely mirrored her account in the incident report, except that she testified that defendant, before he moved closer to N.P. and made his comment about her lying on the bed naked, first commented that the bed would look much better if she laid on it. She also testified that she exclaimed "Peter!" when defendant tried to kiss her. The prosecutor concluded the hearing by asking the grand jurors to consider the charge of fourth-degree criminal sexual contact. Essex County Indictment No. 2008-12-3550 was returned on December 9, 2008, charging defendant with fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3b.*fn1
On or about May 4, 2009, defendant filed a notice of motion seeking to dismiss the indictment.*fn2 Defendant argued that the indictment should be dismissed because the State failed to charge the grand jury with the statutory definition of the alleged crime and the grand-jury presentation was devoid of any evidence that physical force was used by defendant in excess of the minimum physical contact required to achieve criminal sexual contact. After briefing and oral argument, the judge placed his fact-findings and legal conclusions on the record and denied the motion on July 14, 2009.
First, the judge found that the State charged the jury, during the sexual-assault and rape analysis orientation on September 23, 2008, with the elements of fourth-degree criminal sexual contact under N.J.S.A. 2C:14-3b. He also accepted the State's representation that the prosecutor charged the grand jury with the circumstances under N.J.S.A. 2C:14-2c(1) through (4), which constitute one of the elements of fourth-degree criminal sexual contact, although the judge observed that it was unclear whether N.J.S.A. 2C:14-2c was in fact charged. Thus, he rejected defendant's claim that the State failed to charge the grand jury with the statutory definition of the alleged crime. He also did not find it necessary to recharge when the facts were presented to the grand jury on December 2, 2008.
Second, on the alleged absence of any physical force, the judge relied on State v. M.T.S., 129 N.J. 422 (1992), and the model charge on criminal sexual contact to conclude "that the simple act of touching the breast itself, the unwanted criminal sexual contact, no further additional force is necessary to meet the element of physical force in the crime of criminal sexual contact." He thus denied the motion to dismiss the indictment.
On August 3, 2009, defendant filed a motion for leave to appeal, which we granted on August 27, 2009. On September 14, 2009, the Law Division granted defendant's motion for a stay of the proceedings pending appeal. On October 23, 2009, we granted the motion of the Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ) for leave to appear as amicus curiae and participate in oral argument.
Defendant raises the following issues for our consideration:
POINT I - THE STATE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO A GRAND JURY BY FAILING TO INSTRUCT IT AS TO THE LAW OF CRIMINAL SEXUAL CONTACT.
A. THE PROSECUTOR HAS THE DUTY TO CHARGE THE GRAND JURY AS TO THE SPECIFIC OFFENSE TO BE CONSIDERED.
B. THE PROSECUTOR FAILED TO ESTABLISH BY COMPETENT EVIDENCE THAT THE GRAND JURY WAS CHARGED AS TO THE LAW OF CRIMINAL SEXUAL CONTACT.
C. THE PROSECUTOR'S DUTY TO CHARGE THE GRAND JURY IN DEFENDANT'S CASE IS NOT SATISFIED BY PROVIDING COMBINED READINGS ON THE LAWS OF AGGRAVATED SEXUAL ASSAULT, CRIMINAL COERCION, CRIMINAL SEXUAL CONTACT AND CRIMINAL RESTRAINT SOME SEVENTY-SEVEN DAYS EARLIER.
POINT II - THE TRIAL COURT ERRED IN FAILING TO DISMISS THE INDICTMENT WHERE, AS HERE, THE STATE FAILED TO PRESENT EVIDENCE OF PHYSICAL FORCE IN ADDITION TO SEXUAL CONTACT.
A. THE ELEMENT OF "SEXUAL CONTACT" REQUIRES SOME FORCE.
B. THE SECOND ELEMENT OF CRIMINAL SEXUAL CONTACT REQUIRES ADDITIONAL FORCE.
C. THE LEGISLATURE DID NOT INTEND TO EQUATE PHYSICAL FORCE WITH AN ABSENCE OF CONSENT, AND ANY SUCH INTERPRETATION CREATES STATUTORY DISHARMONY AND CAUSES INAPPOSITE RESULTS.
(1) THE ERRONEOUS INTERPRETATION CAUSES INCONGRUENCE BETWEEN PARAGRAPH (c)(1) AND PARAGRAPHS (c)(3) AND (4).
(2) THE ERRONEOUS INTERPRETATION CAUSES INTERNAL INCONGRUENCE WITHIN PARAGRAPH (c)(1).
(3) THE ERRONEOUS INTERPRETATION CAUSES INCONGRUENCE BETWEEN THE CRIMINAL SEXUAL CONTACT AND HARASSMENT STATUTES.
An indictment should only be dismissed on the clearest and plainest grounds, where it is manifestly deficient or palpably defective. State v. Hogan, 144 N.J. 216, 228-29 (1996). As a result, a prosecutor's decision on how to instruct a grand jury will constitute grounds for challenging an indictment only in exceptional cases. State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635 (2001). An "indictment should not be dismissed unless the prosecutor's error was clearly capable of producing an unjust result. This standard can be satisfied by showing that the grand jury would have reached a different result but for the prosecutor's error." Ibid.
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). A trial court decision will constitute an abuse of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002)).
Defendant first argues that his constitutional right to a grand jury was violated because the prosecutor failed to instruct the grand jury as to the law of criminal sexual contact. Defendant presents three points in support of this argument. First, he contends that the prosecutor has a duty to charge the grand jury as to the specific offense to be considered, and the prosecutor gave "no instructions whatsoever" to the grand jury. In this regard, defendant seeks model standards for prosecutors to follow in charging grand juries.
Second, defendant argues that the prosecutor failed to present any competent evidence that the grand jury was charged as to the law of criminal sexual contact because the prosecutor did not provide a copy of the grand-jury orientation transcript to the trial court. In his reply brief, defendant continues his objection on this point despite the production of the transcript. According to defendant, the trial court abused its discretion in concluding that the grand jury was properly instructed on the law based on the prosecutor's statements.
Finally, defendant argues that even if the transcript of the orientation is considered, the record nevertheless fails to satisfy the State's burden to "plainly spell out" the governing law because a one-time reading of the criminal code fails to pass constitutional scrutiny. As a corollary, defendant argues that an eleven-week delay between the reading of the statutes to the grand jury and the State's presentation of the charges against him warrants dismissal. Defendant explains, "The grand jury could not possibly be expected to recall the complex particulars of the law of criminal sexual contact provided to it eleven weeks earlier during a single reading of all of the laws of sexual offenses." Defendant urges that the prosecutor "obfuscated the law of criminal sexual contact by giving a hodgepodge reading of all New Jersey sexual offense laws some seventy-seven days before the actual presentation of ...