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State v. Painter

Superior Court of New Jersey, Appellate Division

November 12, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
EMMA PAINTER, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, Gloucester County, Indictment No. 07-10-1031.

Vincent A. Campo argued the cause for appellant (Legome & Associates, L.L.C., attorneys; Mr. Campo, on the brief).

Margaret A. Cipparrone, Assistant Prosecutor, argued the cause for respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Joseph H. Enos, Jr., Assistant Prosecutor, of counsel and on the brief).

Before Judges Messano and Sabatino.

PER CURIAM

In July 2007, defendant Emma Painter was indicted by the Gloucester County grand jury and charged with third-degree witness tampering, N.J.S.A. 2C:28-5a(1) (count one), and second-degree official misconduct, N.J.S.A. 2C:30-2 (count two). Following a bench trial, defendant was convicted of both charges. The judge imposed a four-year period of imprisonment with a two-year period of parole ineligibility on count one. Concluding that the interests of justice required a downgrade of defendant's conviction for second-degree official misconduct, see N.J.S.A. 2C:44-1f(2), the judge imposed a concurrent four-year sentence with a two-year period of parole ineligibility on count two. The State appealed the sentence, and defendant cross-appealed her conviction. In the interim, imposition of sentence was stayed.

Although defendant argued on her initial appeal that the indictment was insufficient and the facts did not support the charge of official misconduct, we did not reach the issue. State v. Painter, No. A-4616-08 (App. Div. Nov. 8, 2010) (slip op. at 3). Instead, we concluded the judge "incorrectly shifted the burden of proof to defendant with respect to the charge of witness tampering, " and we reversed defendant's convictions and ordered a new trial. Ibid.

Before the second trial, defendant moved to dismiss the indictment. The motion was denied, and we subsequently denied defendant's motion for leave to appeal. After the original judge recused herself, the matter was set for trial before a second judge. On the day of trial, defendant entered into a plea agreement with the State.

Pursuant to the terms of the agreement, the State amended count one to charge fourth-degree obstruction, N.J.S.A. 2C:29-1, to which defendant pled guilty. The State agreed to dismiss the charge of official misconduct. Defendant was sentenced to a one-year term of probation, with a condition that she perform 150 hours of community service. The judge permitted an earlier termination of probation if and when defendant completed her community service. Defendant then filed this appeal.

She raises for our consideration the following argument:

Point I
The State failed to establish an essential element of the crimes at the grand jury presentment and failed to adduce ...

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