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State v. Marks

Superior Court of New Jersey, Law Division, Camden

July 14, 2017

DANIEL MARKS, Defendant.

          APPROVED FOR PUBLICATION June 3, 2019

          Leo Feldman, Assistant Prosecutor, for plaintiff (Mary Eva Colalillo, Camden County Prosecutor, attorney).

          Raquel DeStefano, Assistant Deputy Public Defender, for defendant (Joseph E. Krakora, Public Defender, attorney).

          POLANSKY, J.S.C.


         Under Indictment Number 17-03-00575, defendant Daniel Marks is charged with third-degree theft of services in violation of N.J.S.A. 2C:20-8(a) (count one).


         The State alleges that on November 23, 2016, Cpl. Richard Zappile of the Delaware River Port Authority received information that a 2011 grey Hyundai, registered to Erinn Thompson, repeatedly evaded tolls while crossing the Benjamin Franklin and Walt Whitman bridges, by driving through the EZ-Pass Only lanes without having a valid EZ-Pass transponder. Cpl. Zappile was provided with a log of each violation as well as images and the license plate number of the offending vehicle. A review of the logs showed that between May 2, 2016, and November 15, 2016, the vehicle made 220 crossings of the Benjamin Franklin Bridge and four crossings of the Walt Whitman Bridge without paying the five-dollar toll. The total amount of unpaid tolls was $1120. Administrative fees totaled $5600. Notices of each violation were mailed to the registered owner of the vehicle, but she failed to respond to the notices.

         Cpl. Zappile contacted Thompson, who advised him that her boyfriend, defendant Daniel Marks, was the operator of the motor vehicle at the time of these violations. Defendant later contacted Cpl. Zappile and admitted that he was responsible for all of the violations. Defendant subsequently surrendered himself to police and provided a recorded statement in which he admitted that he was responsible for each and every toll evasion, that he knew he was required to pay a five-dollar toll, and that he intentionally drove through the EZ-Pass lane to avoid paying the toll. He also admitted that he received a violation notice for each violation and ignored the notices.

         On February 8, 2017, this case was presented to a Camden County Grand Jury. The sole witness at the hearing was Cpl. Zappile, who testified to the above facts. These facts are not disputed by defendant.


         A grand jury holds a central role in the enforcement of criminal law in New Jersey. The New Jersey Constitution provides that "no person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury." N.J. Const. art. I, ¶ 8. The grand jury "must determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it." State v. Hogan, 144 N.J. 216, 227 (1996). The grand jury has the additional role of making sure the State does not bring "arbitrary, oppressive, and unwarranted criminal accusations." State v. LeFurge, 101 N.J. 404, 418 (1986). See also Hogan, 144 N.J. at 228 ("We have recognized that the grand jury is the 'primary security to the innocent against hasty, malicious, and oppressive persecution.'" (quoting State v. Del Fino, 100 N.J. 154, 164 (1985))).

         The bar for dismissing a grand jury's indictment is high. An indictment should be dismissed "only on the 'clearest and plainest ground'" and "only when the indictment is manifestly deficient or palpably defective." Hogan, 144 N.J. at 228-29 (quoting State v. Perry, 124 N.J. 128, 168 (1991)). This decision "lies within the discretion of the trial court." Id. at 229 (citing State v. McCrary, 97 N.J. 132, 144 (1984)). Moreover, the Court is within its right to exercise its power in dismissing an indictment to correct injustices. Id. at 231. "[O]ur precedents make clear that this Court may invoke its supervisory power to remedy perceived injustices in grand jury proceedings." Ibid.

         A trial court considering a motion to dismiss an indictment must consider whether the evidence presented to the grand jury establishes a prima facie case against a defendant. "An indictment that appears sufficient on its face stands if the State presents the Grand Jury with at least 'some evidence' as to each element of a prima facie case." State v. Vasky, 218 N.J.Super. 487, 491 (App. Div. 1987) (holding that the State presented insufficient evidence as to the charge of theft, where the only evidence presented as to the value of the stolen property was not based on personal ...

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