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State of New Jersey v. Fabio Simon

April 12, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FABIO SIMON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-06-0381.

The opinion of the court was delivered by: Cuff, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted: November 10, 2010

Before Judges Cuff, Simonelli, and Fasciale.

The opinion of the court was delivered by CUFF, P.J.A.D.

A jury found defendant Fabio Simon guilty of first degree eluding police, N.J.S.A. 2C:29-2b (count one); third degree possession of a controlled dangerous substance (CDS) (marijuana), N.J.S.A. 2C:35-10a(1) (count two); possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b (count three); third degree possession of marijuana with intent to distribute near school property, N.J.S.A. 2C:35-7, 2C:35-5a(1), -5b (count four); and third degree resisting arrest, N.J.S.A. 2C:29-2a (count six). At sentencing, the judge imposed an extended term of seven years imprisonment with three years parole ineligibility on count one consecutive to count four. After merging counts two and three with count four, the judge sentenced defendant to a ten-year term of imprisonment with a five-year period of parole ineligibility, and a concurrent four-year term on count six. The aggregate term is seventeen years, eight years of which must be served without parole. The judge imposed the appropriate fees, fines, assessments, and penalties.

On appeal, defendant raises the following arguments: Point I: The Law Division erred in sentencing defendant to an extended term.

Point II: The indictment was fatally defective because the matter was presented to the Grand Jury by a non-lawyer not authorized by law to do so.

The threshold issue for our consideration is whether the indictment is fatally defective because the case against defendant was presented to the grand jury by a law student intern in the Office of the Mercer County Prosecutor (Prosecutor's Office) rather than by an assistant prosecutor. Defendant argues that the rule promulgated by the Supreme Court governing appearances by law students bars the appearance of law students before a grand jury.

Courts generally are reluctant to intervene in the indictment process, State v. Hogan, 336 N.J. Super. 319, 338 (App. Div.), certif. denied, 167 N.J. 635 (2001), and have held that "[a]n indictment should be disturbed only on the 'clearest and plainest ground,'" State v. Perry, 124 N.J. 128, 168-69 (1991) (quoting State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984)). However, if "the prosecutor's misconduct before a grand jury is extreme and clearly infringes upon the jury's decision-making function . . . ," State v. Schamberg, 146 N.J. Super. 559, 564 (App. Div.), certif. denied, 75 N.J. 10 (1977), the indictment will be dismissed.

Generally, any motion based on defects in the grand jury process must be filed before trial. R. 3:10-2(c). This rule governing the timing of the motion recognizes the right of the State to cure any irregularity. See State v. Womack, 145 N.J. 576, 590 (State may re-present matter to a grand jury after indictment quashed), cert. denied, 519 U.S. 1011, 117 S. Ct. 517, 136 L. Ed. 2d 405 (1996); State v. Hart, 139 N.J. Super. 565, 569 (App. Div. 1976) (same). The rule also allows preservation of the issue because a guilty verdict is universally considered to render error in the grand jury process harmless. State v. Lee, 211 N.J. Super. 590, 599 (App. Div. 1986), certif. denied, 108 N.J. 648 (1987); see also United States v. Mechanik, 475 U.S. 66, 70, 73, 106 S. Ct. 938, 942-43, 89 L. Ed. 2d 50, 56, 58 (1986); State v. Manney, 24 N.J. 571, 583 (1957).

A court may permit the issue to be raised as late as the appeal, when a defendant raises a challenge to the grand jury process and the challenge presents an issue of public importance. See State v. Churchdale Leasing, Inc., 115 N.J. 83, 100 (1989) (a double jeopardy defense raised for the first time on appeal). Here, it appears defendant contested the authority of a law student to present the State's case before the grand jury for the first time on appeal. In an August 2, 2005 order, we remanded the case to the trial court to develop a record of the grand jury presentation.

At the evidentiary hearing, the Mercer County Deputy First Assistant Prosecutor and the law student testified. The judge found that the Prosecutor's Office originally sought permission for a law clerk to appear on behalf of the State in several matters in 1976. Thereafter, the Deputy First Assistant Prosecutor, as the designee of the Prosecutor, filed a letter with the Administrative Office of the Courts (AOC) on May 18, 2004, naming the law student, who appeared before the grand jury, as a summer intern in the office. The judge found that the intern program conducted by the Prosecutor's Office during ...


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