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State v. Dorn

Supreme Court of New Jersey

April 25, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
TODD DORN, Defendant-Appellant.

          Argued January 16, 2018

          On certification to the Superior Court, Appellate Division.

          Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Rochelle Watson, of counsel, and Kevin G. Byrnes, Designated Counsel, on the briefs) .

          Lila B. Leonard, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Lila B. Leonard, of counsel and on the brief).

          SOLOMON, J., writing for the Court.

         The Court is called upon to determine whether defendant Todd Dorn's right to a grand jury presentment under the New Jersey Constitution was violated when the trial court permitted the State, on the eve of trial, to increase the charge in count two of defendant's indictment from a third-degree to a second-degree drug offense. The Court also considers whether it was proper for the trial court to admit into evidence a copy of a map showing that defendant's home was within 500 feet of public housing, a public park, or public building.

         Following a surveillance, police executed a stop of defendant's vehicle and arrested defendant for drug distribution. Defendant signed two consent-to-search forms, one permitting police to enter and search defendant's home and one permitting police to search defendant's vehicle. Police found nothing during the subsequent vehicle search, but they did find thirty-five glassine baggies in the house that contained "a white powdery substance believed to be heroin." Police also found 75.01 grams, or 2.65 ounces, of marijuana in defendant's home. N.J.S.A. 2C:35-7.1(a) provides that the possession of more than one ounce of marijuana with the intent to distribute within 500 feet of public housing, a public park, or public building is a second-degree offense.

         An Atlantic County Grand Jury indicted defendant for second-degree possession of heroin with the intent to distribute within 500 feet of public housing, a public park, or public building, contrary to N.J.S.A. 2C:35-7.1 (count one); third-degree possession of marijuana with the intent to distribute within 500 feet of public housing, a public park, or public building, contrary to N.J.S.A. 2C:35-7.1 (count two); third-degree distribution of heroin (count three); third-degree possession of heroin with the intent to distribute (count four); third-degree possession of one or more ounces of marijuana with the intent to distribute (count five); and fourth-degree possession of more than fifty grams of marijuana (count six). Defendant rejected the State's pretrial plea offer and instead chose to proceed to trial. According to defendant, he rejected the State's plea offer because it was his understanding that his maximum sentencing exposure was twenty years' imprisonment with a ten-year period of parole ineligibility.

         One day before trial, the State moved to amend count two of the indictment from third-degree possession of marijuana with the intent to distribute within 500 feet of public housing, a public park, or public building, to a second-degree offense. The trial court granted the State's motion.

         During the presentation of the State's case, the prosecutor offered into evidence, through the testimony of an officer involved in the investigation, a copy of a "zone map for drug[, ] DUI[, ] and weapon free zones and public housing." Defense counsel objected to the map's admission into evidence on the grounds that (1) the map was a copy and (2) the State should have provided a copy of the map with a raised seal. In response, the trial court stated, "I personally don't think it's necessary to bring in the city engineer. Having said that, since this is a copy, although I think copies are allowable, if you insist, I'm not going to object to that, I'll just say, okay, you got to do it." Defense counsel did not accept the trial court's offer to require the State to produce the city engineer and merely renewed his objection to the admission of the copy into evidence. The trial court admitted the map under N.J.R.E. 902.

         The Appellate Division affirmed defendant's conviction, finding that count five of the indictment put defendant on notice that he stood accused of possessing more than one ounce of marijuana, a second-degree offense, notwithstanding the "administrative or clerical" error by which count two was designated as a third-degree charge. Thus, the Appellate Division found no error in permitting the amendment to count two. The panel also rejected defendant's claim that the map's admission into evidence violated his right to confrontation, noting that the issue was raised for the first time on appeal and that defendant failed to demonstrate that the map's admission was "clearly capable of producing an unjust result."

          The Court granted certification on two issues: whether the trial court erred in admitting into evidence the map; and whether defendant's right to a grand jury indictment was violated when the trial court permitted the prosecutor to amend the indictment and expose defendant to greater criminal liability. 229 N.J. 622');">229 N.J. 622 (2017).

         HELD: The amendment to count two of defendant's indictment was a violation of defendant's right to grand jury presentment under the New Jersey Constitution. Defendant waived his right to object to the map's authentication.

         1. When the State attempted to move the map into evidence at trial, defense counsel objected only on the ground that the map presented in court was a copy of the official map and that the State should have to produce a copy with a raised seal or the original. Defense counsel then failed to accept the trial court's offer to require that the State produce the city engineer. Defense counsel never objected to the map as testimonial, or claimed its admission without proper authentication violated defendant's right to confrontation. The objection put forth was based only on admission of a copy rather than the original. The Court does not reach plain error review, however, because defendant waived any objection to the map's authenticity or to the fact that it is a copy when defense counsel did not accept the trial court's offer to require the State to bring in the city engineer to testify, and instead proceeded as if the offer had never been made. It is a longstanding principle that litigants may waive objections through inaction, (pp. 10-13)

         2. The New Jersey Constitution provides that "[n]o 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. That right is satisfied where the indictment informs the defendant of the offense charged against him, so that he may adequately prepare his defense, and is sufficiently specific both to enable the defendant to avoid a subsequent prosecution for the same offense and to preclude the substitution by a trial jury of an offense which the grand jury did not in fact consider or charge. To meet those criteria, an indictment must allege all the essential facts of the crime. Thus, the State must present proof of every element of an offense to the grand jury and specify those elements in the indictment. A "court may amend the indictment... to correct an error in form or the description of the crime intended to be charged . .. provided that the amendment does not charge another or different offense from that alleged." R.3:7-4. But the court may not do so where an amendment goes to the core of the offense or where it would prejudice a defendant in presenting his or her defense, (pp. 13-16)

         3. The degree of a crime is an essential element that must be included in the indictment. In State v. Catlow, the defendant was charged with robbery in an indictment that did not provide any degree of offense; over the defendant's objection, the trial court instructed the jury on first-degree robbery. 206 N.J.Super. 186, 194-95 (App. Div. 1985). The Appellate Division reversed because it "consider[ed] determination of the degree of a crime to be an essential element of the grand jury function" and, even though the State presented evidence that the grand jury heard testimony relating to a first-degree offense, the robbery count of the indictment provided no facts or statutory language demonstrating that the State had provided to the grand jury sufficient evidence of a first-degree charge. Ibid, (pp. 16-18)

         4. Here, the other counts of the indictment did not put defendant on notice that he would have to defend against a higher-degree offense than the one charged. Although the count five charge apprised defendant that he would defend against allegations of third-degree possession of more than one ounce of marijuana, nothing on the face of that count of the indictment connected that fact to the count two charge. Similarly, while count one refers to N.J.S.A. 2C:35-7.1, it charges second-degree possession with the intent to distribute heroin, not the marijuana charged in count two. Thus, this case is analogous to Catlow. When determining how best to mount a defense, defendants regularly consider whether to accept or reject a plea offer. Defendant was entitled to have that information in hand when deciding whether to accept or reject the State's plea offer. Therefore, failing formally to apprise defendant of the State's intent to seek conviction on a second-degree offense in count two until the day before trial began prejudiced defendant, (pp. 18-21)

         5. The trial court improperly permitted the State to amend count two of the indictment from a third-degree to a second-degree offense because the amendment was substantive and because defendant was prejudiced by the amendment. See R. 3:7-4. For that reason, the conviction as to count two must be amended to reflect that defendant was convicted of the offense on which he was indicted-a third-degree offense-and defendant must be resentenced on that count, (p. 21)

         The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the matter is remanded to the trial court for further proceedings consistent with the opinion.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON's opinion.

          OPINION

          SOLOMON, JUSTICE

         We are called upon to determine whether defendant Todd Dorn's right to a grand jury presentment under the New Jersey Constitution was violated when the trial court permitted the State, on the eve of trial, to increase the charge in count two of defendant's indictment from a third-degree to a second-degree drug offense. We are also asked whether it was proper for the trial court to admit into evidence a copy of a map showing that defendant's home was within 500 feet of public housing, a public park, or public building.

         Defendant was indicted for various drug-related offenses, including two counts of second-degree possession of a controlled dangerous substance (CDS) with the intent to distribute within 500 feet of public housing, a public park, or public building. The first count related to defendant's possession of heroin, a second-degree offense, and the second count related to defendant's possession of seventy-five grams of marijuana, listed in the indictment as a third-degree charge. The day before the trial began, the trial court, over defendant's objection, permitted the State to amend the second count in defendant's indictment from a third-degree to a second-degree charge, citing administrative error.

         At trial, the State submitted -- and the trial court admitted into evidence -- a copy of a map showing that defendant's home was within 500 feet of public housing, a public park, or public building. Defendant objected to the admission of the map on the ground that it was a copy without a raised seal.

         We conclude that the amendment to count two of defendant's indictment was a violation of defendant's right to grand jury presentment under the New Jersey Constitution, and we remand the conviction on count two to the trial court. We also find that defendant waived his right to object to the map's authentication.

         I.

         The facts contained in the appellate record reveal that Atlantic City Police Sergeant Richard Andrews was patrolling the area of 615 Green Street, a public housing complex where defendant lived. Andrews saw a Jeep parked in front of the home and a person, later identified as Jamie Guth, walking toward the front door. As Andrews drove past the Jeep in his marked police car, the driver of the Jeep appeared nervous. The driver then drove around the block and eventually returned to the Green ...


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