NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 1, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-6-1696.
John J. McMahon, Chief Trial Attorney, argued the cause on behalf of the appellant (Joseph E. Krakora, Public Defender, attorney; Mr. McMahon, of counsel and on the brief).
Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause on behalf of the respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Plaisted, on the brief).
Before Judges Fisher and O'Connor.
Defendant was indicted and charged with second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b), as well as other offenses. The trial judge denied defendant's motion for, among other things, dismissal of the reckless manslaughter count, and we granted defendant's motion for leave to appeal. Defendant argues the evidence placed before the grand jury did not present a prima facie case of reckless manslaughter; he also contends the grand jury was not instructed on the law governing causation. We reject these arguments and affirm.
The grand jury's role in our criminal justice system is to determine whether "a basis exists for subjecting the accused to a trial." Trap Rock Indus., Inc. v. Kohl, 59 N.J. 471, 487 (1971), cert. denied, 405 U.S. 1065, 92 S.Ct. 1500, 31 L.Ed.2d 796 (1972); see also State v. Hogan, 144 N.J. 216, 227 (1996). To withstand a motion to dismiss, the State need only present "some evidence" as to each element of the charged offense. State v. Schenkolewski, 301 N.J.Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997). The State is afforded every reasonable inference. State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 27 (1984). As a result, an indictment may be dismissed only on the clearest and plainest ground, that is, when it is manifestly deficient or palpably defective. Hogan, supra, 144 N.J. at 228-29. The decision rests in the trial judge's sound discretion, which will not be disturbed on appeal unless clearly abused. State v. Weleck, 10 N.J. 355, 364 (1952); State v. Warmbrun, 277 N.J.Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). In that vein, we have recognized that dismissal of an indictment is a "last resort because the public interest, the rights of victims and the integrity of the criminal justice system are at stake"; these rights strongly suggest that "criminal cases should ordinarily be decided on the merits after a full and impartial trial." State v. Ruffin, 371 N.J.Super. 371, 384-85 (App. Div. 2004). As we have said, dismissal of an indictment is a "draconian remedy." Id. at 385.
Defendant first argues there was insufficient evidence to support the reckless manslaughter charge. As relevant here, to avoid dismissal, the State was required to produce for the grand jury "some evidence" that defendant acted "recklessly, " N.J.S.A. 2C:11-4(b)(1), meaning defendant's conduct constituted a "conscious disregard" of "a substantial and unjustifiable risk, " N.J.S.A. 2C:2-2(b)(3); see State v. Williams, 190 N.J. 114, 124 (2007).
The grand jury heard evidence that, on December 30, 2011, the two-and-one-half-year old victim was killed by a gunshot from defendant's handgun; the bullet entered through the child's mouth and exited the back of his head. An autopsy revealed the gun was held within the child's mouth at the time of its discharge. The child was approximately three feet tall and weighed forty-seven pounds.
The death occurred in the bedroom of the child's mother's apartment. Defendant had met the child's mother three weeks earlier, and they had gone out together a couple of times. Both adults were in the bedroom where the death occurred that morning, at approximately 9:30 a.m. Defendant had arrived between 2:00 and 3:00 a.m., and, about forty minutes after defendant arrived, he and the child's mother went to sleep on a mattress on the bedroom floor on which the child was also sleeping.
The child's mother testified before the grand jury that she was awoken by the sound of a gunshot. She immediately "smelled the gun smoke" and saw her son on the floor with the gun a few inches from his feet. She testified that defendant was still sleeping, and she woke defendant "[b]y shaking him and calling his name." She then dialed 9-1-1.
Defendant left the apartment approximately four minutes later but returned in five or ten minutes; after defendant departed, the child's mother noticed the handgun was gone. Upon defendant's return, the child's mother was still on the telephone with the police. Defendant told her "to tell the police that the baby was standing at the window [when she] heard a shot, " ...