On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-10-0822.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 15, 2010 - Decided:
Before Judges Axelrad and R. B. Coleman.
Defendant Robert Silva appeals from an order denying his motion to dismiss a second superseding indictment arising out of an act of domestic violence committed against his girlfriend S.C. on or about May 17, 2002. He argues the State's grand jury presentation was tainted because of the failure to present exculpatory evidence. We affirm.
On May 19, 2002, defendant was arrested and charged by criminal complaint with disorderly person's simple assault, N.J.S.A. 2C:12-1a(1), and fourth-degree contempt for violating a domestic violence temporary restraining order (TRO) obtained by S.C., N.J.S.A. 2C:29-9b. On July 18, 2002, defendant was indicted by the Somerset County Grand Jury (No. 02-07-0432), which charged fourth-degree contempt.
On March 8, 2003, the grand jury returned the first superseding indictment (No. 03-02-0119), charging defendant with second-degree burglary, N.J.S.A. 2C:18-2b(1); third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); and fourth-degree contempt, N.J.S.A. 2C:29-9b.
Thereafter, the court granted defendant's motion to sever the contempt charge from the burglary and assault charges. We granted the State's motion for leave to appeal and stayed the trial court proceedings. We then reversed the order severing the counts. State v. Silva, 378 N.J. Super. 321, 328 (2005).
In a related Family Part case, Judge Bartlett granted S.C. a final restraining order (FRO) against defendant following a hearing. In response to defendant's motion for reconsideration, however, the court reopened the case and granted defendant an opportunity to present supplemental evidence. At the hearing on December 19, 2005, defendant presented expert testimony analyzing his cell phone records and opining that it would have been impossible for defendant to have traveled from a pinpointed location to S.C.'s house and arrive at his daughter's home at the time to which his daughter testified. The judge found the testimony persuasive, vacated the FRO, and dismissed S.C.'s domestic violence complaint.
Defendant then filed a motion for the criminal trial judge to take judicial notice of Judge Bartlett's opinion, which was granted by order of November 6, 2006. The State appealed and we reversed. State v. Silva, 394 N.J. Super. 270, 278 (App. Div. 2007).
On August 15, 2008, defendant moved to dismiss the superseding indictment. In response, the State returned to the grand jury. On October 30, 2008, the grand jury returned the second superseding indictment (No. 08-10-0822), charging defendant with the same three offenses as contained in the first superseding indictment.
On May 19, 2010, Judge Paul W. Armstrong denied defendant's motion to dismiss the second superseding indictment. On July 28, 2010, we granted defendant's motion for leave to appeal.
Defendant and S.C. had a dating relationship and lived together in defendant's house in Raritan. On May 16, 2002, S.C. obtained a TRO against defendant, which she had amended the next day to expressly bar defendant from their shared residence. Defendant was served with the TRO on May 17, 2002.
The following is a summary of the February 27, 2003 grand jury testimony of Lieutenant*fn1 Mark Ciesla that resulted in the first superseding indictment. At about 9:40 a.m. on May 18, 2002, S.C. entered Raritan Police Department headquarters and spoke with the officer. He observed she was crying, visibly upset, her lip and nose were swollen, and she had dried blood on her lips. The officer recognized the woman as the person he assisted the day before in obtaining an amended restraining order against defendant. According to Lt. Ciesla, S.C. asked whether, if she told the police "he" did this to her, would they have to arrest him or could they just document the incident. The officer responded that defendant would have to be arrested. S.C. said she did not want to say anything and left to go to the dentist for treatment for her injuries, generally stating that her appearance at the courthouse the day before had set him off.
When asked if defendant had done that to her, S.C. did not answer.
Suspecting domestic violence, Lt. Ciesla directed Officer Ludwig to follow S.C. to the dentist's office in an attempt to ascertain the circumstances of the incident. When S.C. left the dentist's office, Officer Ludwig spoke with her in the parking lot. S.C. initially told him she did not want to discuss what occurred and then stated she fell after drinking wine the prior night.
That afternoon, the two officers went to S.C.'s house and spoke with her sixteen-year-old son. He reported he had fallen asleep in his second-floor bedroom the evening of May 17 and was awakened at 12:45 the next morning when his mother entered his room, crying, upset, and bleeding. He assumed she had fallen off a kitchen stool. He showed the officers a bloody towel from the ...