Superior Court of New Jersey, Law Division, Camden
APPROVED FOR PUBLICATION June 3, 2019
Feldman, Assistant Prosecutor, for plaintiff (Mary Eva
Colalillo, Camden County Prosecutor, attorney).
DeStefano, Assistant Deputy Public Defender, for defendant
(Joseph E. Krakora, Public Defender, attorney).
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).
STATEMENT OF FACTS
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
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.
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.
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))).
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.
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