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The State of New Jersey v. R.F

December 15, 2010

THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
R.F., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 06-02-0191.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted on October 26, 2010

Before Judges Graves and Messano.

In a five-count indictment filed on February 1, 2006, a Bergen County grand jury charged defendant R.F. with four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a); and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). More than a year later, on February 6, 2007, the State moved to amend the indictment to include an additional count of first-degree aggravated sexual assault that it claimed had been "true billed" by the grand jury but omitted from the filed indictment due to "an administrative error." Although the State acknowledged that the grand jury had been dismissed, it suggested that the grand jury clerk could sign "on behalf of the foreperson" to attest that the amended indictment was a true bill.*fn1 Finding that the omission was caused by "an inadvertent ministerial error on behalf of either the grand jury or the Prosecutor's staff," the trial court determined that defendant had no notice of the additional charge and denied the motion.

A jury ultimately convicted defendant of all five counts, and the court imposed two consecutive and two concurrent sixteen-year prison terms with an eighty-five percent period of parole ineligibility. However, on May 15, 2009, this court determined that defendant was entitled to a new trial. State v. R.F., No. A-1604-07 (App. Div. May 15, 2009) (slip op. at 4).

Prior to retrial, on March 15, 2010, the State renewed its motion to amend the indictment to include the sixth charge.

Defense counsel opposed the motion, noting that the grand jury clerk who the State claimed could "attest" to the true bill was not the clerk at the time of the grand jury deliberations--she had merely "listened to the tapes." The court indicated it was not convinced "we should modify the functions of the grand jury even on . . . a ministerial act." Therefore, it determined that the proposed amendment would not be "presented as a count in this case unless there's a superseding indictment." The court entered an order denying the motion on May 10, 2010, and on June 25, 2010, we granted the State leave to appeal.

The State argues on appeal that "it is not a constitutional violation to amend an indictment to include a count true billed by the grand jury but accidentally omitted from the written document." Based on our review of the record and the applicable law, we affirm the trial court's order.

As a preliminary matter, we note that court rules must be read and interpreted in accordance with canons of statutory construction. State v. Clark, 191 N.J. 503, 508 (2007) (citing Wiese v. Dedhia, 188 N.J. 587, 592 (2006); First Resolution Inv. Corp. v. Seker, 171 N.J. 502, 511 (2002)). Thus, a reviewing court must first "examin[e] the plain language of a court rule and give the words their ordinary meaning." Ibid. Only where a rule contains ambiguous language that "lends itself to more than one plausible interpretation" may a court consider extrinsic materials. Ibid.

The plain language of Rule 3:7-4 states:

The court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the ...


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