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State v. Shaw

Superior Court of New Jersey, Appellate Division

July 23, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,

          Submitted January 29, 2018

          On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-04-0591.

          Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).

          Dennis Calo, Acting Bergen County Prosecutor, attorney for respondent (Michael R. Philips, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

          Before Judges Sabatino, Ostrer and Whipple.


          OSTRER, J.A.D.

         Defendant Jerome Shaw, Jr., appeals from his conviction and sentence after he pleaded guilty to third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2, N.J.S.A. 2C:18-2, and disorderly persons possession of burglary tools, N.J.S.A. 2C:5-5(a). After a grand jury refused to indict, the State resubmitted the case to a new grand jury, which voted an indictment. The court sua sponte dismissed that indictment and the State resubmitted again, this time with an additional witness, and secured a second indictment. Defendant contends the court should have dismissed that indictment, too, because the evidence was not materially different; and a grand jury witness disclosed defendant's admission that he had "some prior criminal history." Defendant also argues the court erred in denying his motion to suppress evidence, including various burglary tools, seized after a traffic stop. Lastly, he argues his five-year sentence was excessive, and the court imposed a longer period of parole ineligibility than it promised.

         While the prosecutor's power to resubmit cases to a grand jury is not boundless, we need not chart the limits on successive grand jury resubmissions to conclude there was no basis shown here to warrant dismissal of the indictment. Only one successive grand jury was required to secure an indictment. After the court dismissed that indictment (mistakenly, we conclude, for reasons discussed below), the State presented additional evidence, and a third grand jury voted a second indictment. The evidence supporting the State's case was strong. There is no proof of prosecutorial vindictiveness or an abusive exercise of prosecutorial discretion. Nor did defendant show that resubmission was unduly burdensome, or that it deprived him of fundamental fairness. Furthermore, the passing reference to defendant's criminal history did not deprive him of a fair grand jury presentation.

         Also, the trial court correctly denied the motion to suppress. Lastly, although the sentence was not excessive, we remand for reconsideration of the parole ineligibility term.


         Upper Saddle River Police Officer Emmett McDowell performed a traffic stop in Saddle River after defendant and his father, co-defendant Jerome Shaw, Sr. (Senior), were backing a truck out of a driveway onto West Saddle River Road into McDowell's path. Senior was behind the wheel. McDowell said he had to slam on his brakes to avoid "t-bon[ing]" the truck.

         After he approached defendant's truck, McDowell began to suspect something more than a traffic violation was afoot. The two men were dressed almost head to toe in black, including black shoes and coveralls; they appeared nervous. Senior had a New York driver's license, but the truck had North Carolina plates and was registered to a woman. A rifle case - the sort used to carry assault rifles - was visible on the rear seat. Asked what was in the case, Senior said it contained construction tools, and invited McDowell to look for himself.

         Saddle River Police Officer Edward Riedel arrived to assist McDowell. After Senior was asked to exit the truck, Riedel questioned defendant about the rifle case's contents. As did his father, defendant invited the officer to look for himself. Riedel removed the rifle case and opened it. It contained several pry bars, a large mallet, some pipe wrenches, several zip ties of various sizes, knee pads, and cutting instruments. Some of the tools were brand new, with their price tags still attached. The two men claimed to be on construction jobs, although it was after 1:00 a.m. and they were in a residential area. They could not say where they were working. They gave contradictory explanations of the nature of the work they did, and the kind of properties they worked on. Riedel saw black ski masks and gloves on the floor of the truck, although it was a mild October evening. They also claimed to be lost and looking for Route 17, but there was a GPS device in the vehicle. Riedel suspected the two men were planning to commit a burglary, or already had committed one.

         Once Riedel asked defendant to step out of the truck, defendant could produce no identification. He was acting nervously. He disclosed he had previously been arrested for weapons offenses. Riedel then patted defendant down, and seized a small flashlight. Defendant and Senior were arrested and searched incident to arrest. The officers seized from defendant a list of six residences in Saddle River and Mendham. They seized from Senior a flashlight and a tennis-ball-sized rock. Aside from the rifle case's contents, the other items in the truck were seized pursuant to a search warrant.

         The first grand jury, which heard Riedel generally recount these facts, declined to indict. A month later, the State represented the case through Riedel's testimony to a second grand jury, which returned an indictment. However, the presiding criminal judge dismissed the indictment on her own motion. She did so after the clerk informed her that the second indictment involved the same complaint-warrant and the same witness as the first presentment.[1] The judge later explained that she was enforcing what she called "the multiple presentation rule," which, she said, provides "you can't go to the grand jury more than once on the same facts."

         Shortly thereafter, the State presented the case to a third grand jury. Of relevance to one of defendant's points on appeal, Riedel softened defendant's admission that he had weapons arrests. Explaining his decision to pat down defendant, Riedel testified, "Eventually he admitted to some prior criminal history that raised my suspicion . . . ."

         In addition to Riedel, the State for the first time called Captain Timothy Condon of the Bergen County Prosecutor's Office, as an expert in burglary investigations. Condon supplemented Riedel's opinion that the circumstances indicated that defendant and Senior were planning to commit burglary. Condon highlighted that burglars often use new tools, to avoid preserving evidence on the tools of previous burglaries. By contrast, people actually involved in construction usually have well-worn tools. He opined the zip ties were likely intended for restraining occupants of a home. The rocks were to be used to break windows. The black attire was designed to avoid detection. He viewed defendant's list of addresses as a "hit list." He also noted that defendant possessed a hand truck, which he could have used to remove a safe.

         The third grand jury returned an indictment, which, in addition to the conspiracy count to which defendant later pleaded guilty, charged six counts of third-degree attempted burglary, N.J.S.A. 2C:5-1, N.J.S.A. 2C:18-2 - for each residence on defendant's list - as well as three counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(d), characterizing a sledgehammer, mallet, and prybar as weapons.

         In support of his motion to dismiss the indictment, defendant's counsel argued that the State abused the grand jury process by resubmitting the case without judicial approval, and without presenting materially different evidence. Defendant also objected to the reference to defendant's criminal history. The court denied the motion, finding that Condon offered new and additional evidence. The court did not address the point about defendant's criminal history.

         The court thereafter conducted an evidentiary hearing on defendant's motion to suppress the evidence seized as a result of the traffic stop, and subsequent searches. McDowell and Riedel testified, generally recounting the facts summarized above. The court denied the motion. The court held that the initial stop was justified, because defendant blocked traffic. Other circumstances - the time, the out-of-state plates, the black attire, and the rifle case - warranted further investigation. The court held that the warrantless search of the rifle case was justified based on consent and the plain view doctrine. The gloves, masks, goggles, and GPS unit were also in plain view, although police awaited a warrant before seizing them. The pat-down of defendant and seizure of the flashlight were justified by a reasonable safety concern; and the seizure of other items on defendant's and Senior's persons was properly based on searches incident to arrest.

         Following denial of his pre-trial motions, defendant entered his guilty plea before a different judge. The plea agreement with the State called for a five-year term, with a two-year parole bar, but the judge promised to impose a twenty-month parole bar. The sentence was to be concurrent to a North Carolina sentence defendant was already serving.

         At the sentencing hearing, the judge noted defendant, then thirty-five years old, had an extensive, multi-state criminal record, which supported finding aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk of re-offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of prior criminal record and seriousness of offenses); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others). Those factors substantially outweighed mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment would be excessive hardship on dependents). Defendant had a young child.

         Although he stated he would honor the plea agreement, the judge imposed a parole bar of two years instead of twenty months on the five-year term. The ensuing judgment of conviction did not reflect any parole bar.

         On appeal, defendant raises the following points for ...

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