STATE OF NEW JERSEY VS. C.A.T-P. (20-01-0011, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1543-20
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
C.A.T-P.,
Defendant-Respondent.
_________________________
Submitted August 23, 2021 – Decided August 30, 2021
Before Judges Whipple and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 20-01-
0011.
Michael H. Robertson, Somerset County Prosecutor,
attorney for appellant (Rory A. Eaton, Assistant
Prosecutor, of counsel and on the briefs).
Joseph E. Krakora, Public Defender, attorney for
respondent (Tamar Y. Lerer, Assistant Deputy Public
Defender, of counsel and on the brief).
PER CURIAM
The State appeals from the Law Division's dismissal of an indictment
charging defendant C.A.T-P.1 with: 1) third-degree aggravated assault—
strangulation, N.J.S.A. 2C:12-1(b)(13); 2) third-degree aggravated assault—
significant bodily injury, N.J.S.A. 2C:12-1(b)(12); 3) fourth-degree hindering
apprehension or prosecution, N.J.S.A. 2C:29-3(b)(2); and 4) fourth-degree
unlawful possession of a prohibited device—hollow point bullets, N.J.S.A.
2C:39-3(f)(1).
The motion judge dismissed the indictment on two grounds. First, h e
concluded it was in the "interests of justice" to dismiss the charges as the State's
ability to establish defendant's guilt beyond a reasonable doubt would
"ultimately fail" because defendant was deported and not presently located in
the United States and the victim, M.A.N-Z., expressed her intention not to testify
against him. Second, the court noted that defendant was available for a
"considerable amount of time" before being deported and the State failed to take
appropriate measures to secure his appearance for trial prior to his removal from
the United States.
On appeal, the State contends the court abused its discretion by dismissing
the indictment, arguing that it improperly evaluated the strength of the State's
1
We use initials to protect M.A.N-Z.'s privacy. R. 1:38-3(c)(12).
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2
proofs and made incorrect assumptions regarding the ability of the State to
introduce admissible evidence establishing defendant's guilt. We agree and
reverse and remand with directions that the court reinstate the indictment.
I.
The State's charges stem from an incident that occurred during the early
morning hours of November 23, 2019, when officers from the North Plainfield
Police Department responded to a local residence based upon a report of an
assault potentially involving a handgun. The officers met with the victim,
M.A.N-Z., who advised them that she lived with defendant, her boyfriend, and
their infant child. She also informed the officers that defendant had taken the
child to their neighbor's apartment.
M.A.N-Z. stated that defendant physically assaulted her after her friend
left the apartment earlier that night, and in response to her friend allegedly
insulting defendant. She explained that while in the common hallway defendant
pushed her against the wall and strangled her, obstructing her breathing. The
officers observed visible marks on her neck, which they photographed.
M.A.N-Z. told the officers that she resisted the assault and ran into the
bathroom for safety, where she was unable to call the police because she did not
have her cell phone in her possession. After defendant unsuccessfully attempted
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3
to break down the bathroom door, he left the residence. At that point, M.A.N-
Z. left the bathroom where she encountered defendant who had returned to the
apartment. Defendant allegedly retrieved a handgun from the bedroom, showed
it to M.A.N-Z. and stated, "I have a gun." M.A.N-Z. again fled to the bedroom,
locked the door, and screamed for help.
An investigating officer captured M.A.N-Z.'s statements on his body
camera. M.A.N-Z. subsequently consented to a search of the apartment where
the police seized three .380 caliber bullets, one of which was a hollow point, in
the bedroom dresser.
After defendant was arrested, M.A.N-Z. obtained a temporary restraining
order (TRO) against him. The police conducted a search of defendant's vehicle
pursuant to a search warrant, but were unable to locate the handgun allegedly
used by defendant in the assault.
M.A.N-Z. later gave a recorded statement which was factually
inconsistent with what she alleged on November 23, 2019. For example,
M.A.N-Z. claimed to be unsure if defendant displayed a handgun, and stated that
her friend allegedly insulted her which angered defendant. Further, M.A.N-Z.
did not reference defendant's purported attempt to break down the bathroom
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door. She continued to maintain, however, that defendant strangled and
assaulted her.
Defendant was detained prior to trial because the court concluded that no
combination of pre-trial conditions would assure the protection and safety of
other members of the community. On this point, the court noted that "defendant
strangled the victim . . . with sufficient force to leave marks," and further
expressed concern about the "[p]otential for witness intimidation."
On November 26, 2019, M.A.N-Z. informed the court that she wanted to
"withdraw all the charges [she] filed against defendant," and thereafter
voluntarily dismissed the TRO. Defendant subsequently moved to reconsider
the court's pre-trial detention order, an application that the court granted,
releasing defendant under several conditions, including that he appear for all
scheduled court proceedings and not commit any offenses while released.
In granting defendant's application, the court explained that M.A.N-Z.'s
dismissal of the TRO constituted a material change in circumstances warranting
reconsideration of the court's earlier pretrial confinement order. The court
explained there was "less of a risk of violence to the victim than at the original
time of the hearing."
A-1543-20
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Defendant was subsequently taken into custody on a United States
Immigration and Customs Enforcement (ICE) detainer. An immigration judge
later issued an order for defendant's removal from the United States to El
Salvador, his country of origin. Upon learning of the removal order and
defendant's scheduled deportation, the State moved to revoke defendant's
pretrial release. Defendant, however, was deported prior to the revocation
hearing.
Defendant subsequently moved to dismiss the indictment which he
supported by a notarized affidavit from M.A.N-Z., in which she stated she was
not in fear of defendant, did not wish to testify against him, requested that the
prosecutor dismiss the charges, and claimed the November 23, 2019 assault was
"an aberration." Notably, however, M.A.N-Z. never recanted her statements that
defendant assaulted her, but simply noted that the incident was "the only time
this has ever happened."
Defendant argued that the Confrontation Clause 2 prevented the State from
relying on M.A.N-Z.'s recorded statements and, as she did not wish to testify,
the State could not support any of the charges, as the sole evidence against
defendant—her recorded statements—constituted inadmissible hearsay. In
2
U.S. Const. amend. VI.
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opposing the motion, the State argued it was inappropriate to consider the
application in light of defendant's absence from the proceeding, and further
stated that the court should issue a bench warrant, and the matter re -scheduled
once defendant's appearance was secured.
The State also maintained that defendant failed to provide any cognizable
legal basis to dismiss the indictment and his claim that M.A.N-Z. did not intend
to cooperate with the State at the time of trial was hypothetical. As the State
explained, it had "no indication from the victim that she would not cooperate
with a subpoena should one issue."
The court granted defendant's application and dismissed the indictment.
In an October 27, 2020 order and written opinion, the court stated, that "[o]ut-
of-court statements interdicted by the Confrontation Clause include both
testimonial statements elicited by the police during interrogations . . . and
testimonial statements volunteered to the police." The court further noted that
"[a] statement about a relevant past event made to a police officer conducting a
criminal investigation meets the Sixth Amendment's formality and solemnity
requirement for a testimonial statement."
In making its decision, the court relied upon the following language from
Hammon v. Indiana, 547 U.S. 813, 829-30 (2006), in which the United States
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Supreme Court concluded that certain statements to law enforcement were
testimonial and subject to the Confrontation Clause:
[T]he victim's statement to the police in the affidavit
describing the domestic-violence events were
testimonial for among the following reasons: (1) the
police interrogation of the victim "was part of an
investigation into possibly criminal past conduct"; (2)
the police inquiry was not an effort to determine "'what
[was] happening' but rather 'what happened'"; (3) "there
was no immediate threat" to the victim because she had
been separated from her abuser and therefore "no
emergency [was] in progress."
The court determined that "[t]he police report, with regard to anything the
witness said to the officer, would be inadmissible hearsay." Consequently, the
court concluded "[s]ince the defendant was deported and the [State's] primary
witness will not testify at trial, the court believes that the best course, in the
interest of justice, is to dismiss the indictment." The court also found that
defendant had been available prior to deportation for a considerable amount of
time and that "[p]rocedural remedies were not utilized with respect to seeking
ICE deferment or staying removal until after the State's criminal trial."
After the court denied the State's motion for reconsideration, it filed this
appeal arguing:
A-1543-20
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POINT I
THERE WERE NO LEGAL GROUNDS FOR
DISMISSAL OF THE INDICTMENT.
POINT II
SUFFICIENT EVIDENCE EXISTS TO SUSTAIN
THE INDICTMENT.
POINT III
A BENCH WARRANT SHOULD ISSUE FOR
DEFENDANT.
II.
"[T]he decision whether to dismiss an indictment lies within the discretion
of the trial court, and that exercise of discretionary authority ordinarily will not
be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144
N.J. 216, 229 (1996) (citations omitted). An abuse of discretion occurs "when
a decision is 'made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty.
Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. &
Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). When a trial court's
decision turns on a legal question, we review that determination de novo,
without deference to the trial court's interpretation. State v. Twiggs, 233 N.J.
513, 532 (2018) (citation omitted).
A-1543-20
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An indictment is presumed valid, see State v. Perry, 124 N.J. 128, 168
(1991), and should not be dismissed unless "manifestly deficient or palp ably
defective," Hogan, 144 N.J. at 229. See also State v. Tringali, 451 N.J. Super.
18, 27 (App. Div. 2017) ("A trial court should only dismiss an indictment on the
'clearest and plainest' grounds and only when it is clearly defective." (quoting
State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984))).
"The grand jury's role is not to weigh evidence presented by each party,
but rather to investigate potential defendants and decide whether a criminal
proceeding should be commenced." Hogan, 144 N.J. at 235. Accordingly, a
prosecutor seeking an indictment is solely required to "present a prima facie case
that the accused has committed a crime." Id. at 236. An indictment should not
be dismissed "[a]s long as 'some evidence' on each of the elements of the
offenses is presented and there is nothing that detracted from the fairness of the
grand jury proceeding." State v. Scherzer, 301 N.J. Super. 363, 428 (App. Div.
1997) (citations omitted).
Additionally, grand jury proceedings carry a "presumption of validity," as
prosecutors enjoy "broad discretion in presenting a matter to the grand jury."
State v. Smith, 269 N.J. Super. 86, 92 (App. Div. 1993). The State's power to
indict an individual is not limitless, however, as a "prosecutor, contrary to an
A-1543-20
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ordinary advocate, has a duty to see that justice is done." State v. Polasky, 240
N.J. Super. 139, 146 (App. Div. 1990) (citations omitted). "He is not to
prosecute, for example, when the evidence does not support the State's charges."
Ibid.Further, "[t]he court should evaluate whether, viewing the evidence and
the rational inferences drawn from that evidence in the light most favorable to
the State, a grand jury could reasonably believe that a crime occurred and that
the defendant committed it." State v. Morrison, 188 N.J. 2, 13 (2006) (citation
omitted). Therefore, "a defendant who challenges an indictment must
'demonstrate that evidence is clearly lacking to support the charge.'" State v.
Graham, 284 N.J. Super. 413, 417 (App. Div. 1995) (quoting State v. McCrary,
97 N.J. 132, 142 (1984)). Dismissal of an indictment is a "last resort because
the public interest, the rights of victims and the integrity of the criminal justice
system are at stake." State v. Williams, 441 N.J. Super. 266, 272 (App. Div.
2015) (quoting State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004)).
III.
As noted, the State contends the court erred in dismissing the indictment.
Specifically, the State asserts that there was no legal basis for the court 's
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decision and that there was sufficient evidence in the record to sustain the
indictment.
Defendant claims that the interests of justice required the dismissal of the
indictment because: 1) significant resources have been, and will be, spent on a
"futile exercise" as defendant is barred from returning to the United States; 2)
defendant's right to a speedy trial would be violated if the State is permitted to
keep the indictment "open indefinitely"; and 3) without M.A.N-Z.'s testimony
the State is unable to prosecute the case.
We agree with the State that the court abused its discretion in dismissing
the indictment as there was no legal defect with the presentment and the record
presented to the court fully supports the charges. Hogan, 144 N.J. at 229;
Morrison, 188 N.J. at 12. Instead, the court mistakenly based its decision on its
belief that the State would be unable to proceed at trial because M.A.N-Z.
expressed her intention to refuse to testify, and the State would have to rely on
her recorded statements, which it determined was impermissible hearsay. As
the court explained:
[T]he [c]ourt need not go blindly down a path that will
ultimately fail. The [c]ourt is aware, and the State
would have to agree, that if the trial were to happen
today, the prosecution could not put on a case. In
effect, there is no witness to testify against the
defendant. The police report, with regard to anything
A-1543-20
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the witness said to the officer, would be inadmissible
hearsay. There are no available exceptions to the rule
against hearsay in this instance. The [c]ourt must
weigh all facts specific to a particular case when
arriving at its decision. First, the defendant is not
present, and this is not by his choosing; he was
deported. Second, the witness against the defendant,
has written letters to the prosecution, and gave a
statement to defense counsel that she does not want to
testify and that she does not want the defendant
prosecuted. Third, the defendant was available for a
considerable amount of time, held on an ICE detainer,
at Somerset County Jail, before being deported.
Procedural remedies were not utilized with respect to
seeking ICE deferment or staying removal until after
the State's criminal trial. The defendant has not been
deported. Since the defendant was deported and the
[p]rosecutor's primary witness will not testify at trial,
the [c]ourt believes that the best course, in the interests
of justice, is to dismiss the indictment.
This conclusion, however, was improperly based on the court's evaluation
of State's anticipated proofs, and not on the validity of the indictment, the proofs
submitted at that proceeding, or the decision of the grand jury to indict
defendant. In doing so, the court failed to view the facts in the light most
favorable to the State and address whether "a grand jury could reasonably
believe that a crime occurred and that the defendant committed it ." Morrison,
188 N.J. at 12. As noted, the record contains ample evidence supporting the
charges against defendant to survive defendant's motion to dismiss.
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For example, M.A.N-Z.'s initial statement indicated that defendant pushed
her against a wall and strangled her, a fact corroborated by submitted
photographs depicting her injuries. M.A.N-Z. also stated that after she locked
herself in a bathroom, defendant attempted to break the door down. Further,
when M.A.N-Z. left the bathroom, under the belief that defendant had left, he
returned to the apartment and displayed a handgun. In addition, M.A.N-Z. does
not dispute that the assault occurred, in fact, she never recanted and stated in her
affidavit that "this is the only time this has ever happened."
In concluding M.A.N-Z. would not testify against defendant, the court
misinterpreted her notarized affidavit. Nor can we discern from the record
provided to us if M.A.N-Z.'s reluctance to testify was affected by the domestic
violence that the State contends defendant committed.
What is clear, however, is that the charges against defendant are serious
offenses and, if proven, establish that M.A.N-Z. was a victim of domestic
violence. New Jersey law is intended "to assure the victims of domestic violence
the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18.
As the Legislature declared when enacting the Prevention of Domestic Violence
Act:
The Legislature finds and declares that domestic
violence is a serious crime against society; that there
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are thousands of persons in this State who are regularly
beaten, tortured and in some cases even killed by their
spouses or cohabitants; that a significant number of
women who are assaulted are pregnant; that victims of
domestic violence come from all social and economic
backgrounds and ethnic groups; that there is a positive
correlation between spousal abuse and child abuse; and
that children, even when they are not themselves
physically assaulted, suffer deep and lasting emotional
effects from exposure to domestic violence.
[Id.]
In our view, the better practice under the circumstances would be for the
court to hold the State to its burden of proof at trial before dismissing these
significant charges. To the extent the State intends to rely upon M.A.N-Z.'s
testimony to support the charges, and she refuses to testify, the court can address
the propriety, and consequences, of that decision as it relates to the State's proofs
at that time, and upon a complete record.
In sum, we reverse the court's October 27, 2020 order and remand the
matter for entry of an order reinstating the indictment. We do not address the
State's argument in its third point whether a bench warrant should issue, and
reserve that decision for the trial court on remand. Nor do we address any other
potential issues attendant to defendant's prosecution not specifically raised by
the parties. We do not retain jurisdiction.
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Reversed and remanded.
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