Submitted January 29, 2018
appeal from Superior Court of New Jersey, Law Division,
Bergen County, Indictment No. 13-04-0591.
E. Krakora, Public Defender, attorney for appellant (Anderson
D. Harkov, Designated Counsel, on the brief).
Calo, Acting Bergen County Prosecutor, attorney for
respondent (Michael R. Philips, Special Deputy Attorney
General/Acting Assistant Prosecutor, of counsel and on the
Judges Sabatino, Ostrer and Whipple.
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.
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.
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.
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.
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
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
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.
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. 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."
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 . . .
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.
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.
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.
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.
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.
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.
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.
appeal, defendant raises the following points for ...