December 24, 2013
STATE OF NEW JERSEY, Plaintiff-Appellant,
MARCUS SORBINO, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 12-03-723 and 12-03-726.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Before Judges Fisher and Grall.
By leave granted, the State appeals from the dismissal of charges against defendant Marcus Sorbino included in two indictments arising from the same incident. The charges dismissed are: possessing a handgun without a permit, N.J.S.A. 2C:39-5b; possessing a firearm while possessing a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:39-4.1a; and possessing a handgun despite having a disqualifying prior conviction, N.J.S.A. 2C:39-7. Finding that the evidence presented to the grand jury was inadequate to establish a prima facie case on those charges, the trial court dismissed them.
The grand jurors for Essex County heard the testimony of Detective Linda Williams of the Essex County Prosecutor's Office. Williams' testimony consisted of nothing other than affirmative answers to leading questions posed by the prosecutor, apparently based on the prosecutor's understanding of Williams' report. The only words Williams uttered during her testimony were her name, its spelling and "Yes, " "Correct, " and "That's correct."
From the summary of the report set forth by the prosecutor, the detective saw defendant sitting in a car with the gun in his hand some time after eight o'clock on a night in September, which led him to shine a flashlight on the car's interior. In response, defendant drove away and a high-speed chase followed. Reportedly, the detective saw defendant toss a black object from the car during that chase but no handgun was found when the area was searched
The record provided on this appeal is quite slim The State has not included a copy of the detective's report in its appendix on appeal and the transcript of the grand jury proceeding includes nothing indicating that the report was given to the grand jurors While the State has presented a transcript of the judge's oral decision on the motion to dismiss in the judge's oral decision she referred to a written decision she had prepared which the State did not provide Moreover the judge also refers to both her oral and written decisions
"[T]he decision whether to dismiss an indictment lies within the discretion of the trial court and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused" State v Hogan 144 N.J. 216 229 (1996) (citation omitted) Because the State has not provided the judge's written decision we are in no position to find an abuse of discretion Accordingly we affirm and remand for further proceedings Nothing in this decision or the judge's order precludes the State from seeking a superseding indictment