                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-2058-15T3

STATE OF NEW JERSEY,

     Plaintiff-Respondent,
                                            APPROVED FOR PUBLICATION
                                                   As REDACTED
v.                                                July 23, 2018

JEROME SHAW, JR., JEROME SHAW,                APPELLATE DIVISION
JERONE SHAW, JR., and ROME,

     Defendant-Appellant.
________________________________

          Submitted January 29, 2018 – Decided July 23, 2018

          Before Judges Sabatino, Ostrer and Whipple.

          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).

     The opinion of the court was delivered by

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




                                                  2                                      A-2058-15T3
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.

                                     I.

       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.




                                      3                             A-2058-15T3
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




                                             4                                        A-2058-15T3
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 re-

presented 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

1
  The record does not include the transcript of the grand jury's
return of the indictment to the court, nor does it include the
court's order of dismissal.



                                           5                                  A-2058-15T3
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-




                                             6                                    A-2058-15T3
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




                                          7                                A-2058-15T3
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.




                                        8                              A-2058-15T3
    On appeal, defendant raises the following points for our

consideration:

         POINT ONE
         THE INDICTMENT AGAINST DEFENDANT SHOULD HAVE
         BEEN DISMISSED DUE TO THE INHERENT PREJUDICE
         OF THE GRAND JURY BEING TOLD DEFENDANT HAD A
         PRIOR CRIMINAL HISTORY AND BECAUSE THE STATE
         PRESENTED   THE   SAME  EVIDENCE  TO   THREE
         SEPARATE GRAND JURIES BEFORE IT FINALLY
         OBTAINED AN INDICTMENT.

         POINT TWO
         THE TRIAL COURT ERRED WHEN IT DENIED
         DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
         SEIZED AS A RESULT OF A WARRANTLESS SEARCH
         BECAUSE THE POLICE OFFICERS CONDUCTED AN
         IMPROPER INVESTIGATORY DETENTION, FOLLOWED
         BY AN ILLEGAL WARRANTLESS SEARCH OF THE
         RIFLE CASE THEY REMOVED FROM DEFENDANT'S
         VEHICLE.      THE    SUBSEQUENT  WARRANTLESS
         SEARCHES, AND THE SEARCH WARRANT OBTAINED
         THEREAFTER, WERE THE "FRUIT" OF THAT ILLEGAL
         SEARCH, CONTRARY TO THE UNITED STATES AND
         NEW JERSEY CONSTITUTIONS.

         POINT THREE
         DEFENDANT'S   SENTENCE   WAS   EXCESSIVE   AND
         CONSTITUTED    AN   ABUSE    OF    DISCRETION,
         REQUIRING HIS SENTENCE BE VACATED AND THE
         CASE RETURNED TO THE TRIAL COURT FOR A NEW
         SENTENCE HEARING.

         POINT FOUR
         THE DISCREPANCY BETWEEN THE PLEA AGREEMENT,
         SENTENCING   TRANSCRIPT,  AND  JUDGMENT  OF
         CONVICTION MUST BE CLARIFIED.




                               9                          A-2058-15T3
                                            II.

    Defendant          contends       the     grand           jury    proceedings        were

defective    because:      (1)    the       State       resubmitted         the   matter      to

multiple grand juries, and presented the same evidence, despite

offering    a    new    witness       at    its       third    presentation;       and     (2)

elicited information that defendant had a criminal history.                                   In

response,       the    State     contends,            without    qualification,          "[a]

prosecutor may resubmit a previously no-billed case to any grand

jury at any time within the statute of limitations . . . ."

    Although an abuse of discretion standard generally governs

our review of a trial court's decision on a motion to dismiss an

indictment,      we    review    de    novo       a   decision       that    "relies     on    a

purely legal question . . . ."                    State v. Twiggs, ___ N.J. ___,

___ (2018) (slip op. at 20).                  In reviewing the "decision of a

trial   court     to   dismiss     [or      not       dismiss]       an   indictment     with

prejudice[,      we]    must     ensure       that      the     correct      standard      was

employed by the trial court."                State v. Abbati, 99 N.J. 418, 436

(1985).     We are also free to affirm a trial court's decision on

grounds other than those the trial court relied upon.                              Hayes v.

Delamotte, 231 N.J. 373, 386-87 (2018); State v. Heisler, 422

N.J. Super. 399, 416 (App. Div. 2011).




                                             10                                     A-2058-15T3
                                          A.

       To    address     defendant's     resubmission             argument,    we     first

consider     basic      principles     pertaining        to   the    grand     jury,   the

prosecutor's charging discretion, and the court's authority to

assure fundamental fairness.             "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.                A defendant

is entitled to a "fundamentally fair grand jury presentation."

State v. Grant, 361 N.J. Super. 349, 356 (App. Div. 2003).                             "The

purposes of the grand jury extend beyond bringing the guilty to

trial.      Equally significant is its responsibility to 'protect[]

the innocent from unfounded prosecution.'"                        State v. Hogan, 144

N.J. 216, 228 (1996) (quoting State v. Murphy, 110 N.J. 20, 29

(1988)).         "The   grand   jury    serves      an    important      and    historic

purpose in standing between the defendant and the power of the

State, protecting the defendant from unfounded prosecutions."

State v. Fortin, 178 N.J. 540, 638 (2004).

       Noting that many other states have dispensed with the grand

jury entirely, our Court observed, "In New Jersey, the grand

jury    remains    a    constitutional     bulwark        against hasty         and    ill-

founded prosecutions and continues to lend legitimacy to our

system      of   justice   by   infusing       it   with      a    democratic    ethos."

Ibid.       "[T]he right to indictment in the State Constitution




                                          11                                     A-2058-15T3
indicates that the grand jury was intended to be more than a

rubber stamp of the prosecutor's office."                       Hogan, 144 N.J. at

236.       "Our   State      Constitution          envisions    a    grand     jury     that

protects      persons        who    are       victims      of       personal        animus,

partisanship,        or     inappropriate           zeal   on       the      part     of     a

prosecutor."        Ibid.

       Yet, an indictment should not be dismissed "except on 'the

clearest and plainest ground' and an indictment should stand

'unless it is palpably defective.'"                    State v. N.J. Trade Waste

Ass'n, 96 N.J. 8, 18-19 (1984) (quoting State v. Weleck, 10 N.J.

355, 364 (1952)).            Our Supreme Court has declared the general

principle that "[a] trial court . . . should not disturb an

indictment if there is some evidence establishing each element

of   the    crime    to     make   out    a    prima    facie       case."      State       v.

Morrison, 188 N.J. 2, 12 (2006).

       Before     the     grand    jury       may      exercise      its     power,        the

prosecutor must make the discretionary decision to present the

case.       The prosecutor's "duty is not merely to prosecute the

guilty but to protect the innocent as well."                        Abbati, 99 N.J. at

434.       Our Court has recognized that the prosecutor's charging

power is broad, but not boundless.                     Upon clear and convincing

proof of a patent and gross abuse of discretion, a court may set

aside a refusal to admit a defendant to pre-trial intervention.




                                              12                                    A-2058-15T3
See State v. K.S., 220 N.J. 190, 200 (2015) (noting "[t]his

discretion       arises     out    of        'the    fundamental         responsibility           of

prosecutors for deciding whom to prosecute'") (quoting State v.

Dalglish, 86 N.J. 503, 509 (1981)); State v. Leonardis, 73 N.J.

360, 382 (1977) (recognizing the "patent and gross abuse of

discretion" standard); State v. Childs, 242 N.J. Super. 121, 129

(App.     Div.      1990)        (stating           that     the     prosecutor's             broad

discretion, while "not boundless, . . . may only 'be reviewed

for   arbitrariness         or    abuse'")           (quoting       In    re     Investigation

Regarding Ringwood Fact Finding Comm., 65 N.J. 512, 516 (1974)).

      Separate from the court's authority to review prosecutorial

discretion,        see   Abbati,        99    N.J.     at    433-34      (noting       that      the

prosecutor's        office       "has    never        been      regarded       as     free     from

judicial      supervision        and     control"),          is    the    court's      inherent

authority     to    dismiss       an    indictment          with    prejudice         to    assure

fundamental        fairness.           "Thus,        the    prosecutor's          decision        to

reprosecute        [after    successive             mistrials]      is    not       immune      from

judicial      supercession         even        absent       a     finding       of    abuse       of

prosecutorial discretion."                   Id. at 434.          "The anxiety, vexation,

embarrassment        and     expenses          to     the       defendant       of     continual

reprosecution where no new evidence exists is a proper subject

for     the   application         of     traditional            notions     of       fundamental

fairness and substantial justice."                          Id. at 430.             The Supreme




                                                13                                         A-2058-15T3
Court   held   that   "a   trial   court   [after   considering    multiple

factors]   may    dismiss    an    indictment   with     prejudice      after

successive juries have failed to agree on a verdict when it

determines that the chance of the State's obtaining a conviction

upon further retrial is highly unlikely."           Id. at 435.2

    The Court invoked Abbati in stating that it "would reflect

an appropriate exercise" of the court's inherent authority to

dismiss an indictment where the grand jury process was tainted

by an unconstitutional criminal investigation.            State v. Sugar,

2
  In deciding whether to dismiss an indictment with prejudice
after successive mistrials, a trial court must consider:

           (1) the number of prior mistrials and the
           outcome of the juries' deliberations, so far
           as is known; (2) the character of prior
           trials in terms of length, complexity, and
           similarity of evidence presented; (3) the
           likelihood of any substantial difference in
           a subsequent trial, if allowed; (4) the
           trial court's own evaluation of the relative
           strength of each party's case; and (5) the
           professional   conduct   and   diligence   of
           respective counsel, particularly of the
           prosecuting attorney.   The court must also
           give due weight to the prosecutor's decision
           to reprosecute, assessing the reasons for
           that decision, such as the gravity of the
           criminal charges and the public's concern in
           the effective and definitive conclusion of
           criminal prosecutions. Conversely, the court
           should accord careful consideration to the
           status of the individual defendant and the
           impact of a retrial upon the defendant in
           terms of untoward hardship and unfairness.

           [Abbati, 99 N.J. at 435.]



                                     14                              A-2058-15T3
100 N.J. 214, 245 n.4 (1985) (citing Abbati, 99 N.J. at 418).3

We therefore surmise that the grand jury process is subject to

review based on the judiciary's inherent authority to assure

fundamental fairness.

                                   B.

      Turning to the issue of resubmission of cases to successive

grand juries, we are aware of no New Jersey statute or common

law   precedent    —   and    defendant       points   to    none   —    that

categorically bars a prosecutor from choosing to resubmit a case

to a new grand jury after one has previously voted a no bill, or

requires the State to present new evidence as a condition of

resubmission.     Consequently, we find no basis for the trial

court's pronouncement of the "multiple presentation rule" that

conditions resubmission on the presentation of new evidence.

      The   Attorney   General   has    not    established    any   standard

limiting resubmission.       The manual promulgated by the Attorney

General and the County Prosecutors Association provides:

            Nor does the fact that a grand jury has
            considered the matter and voted a no-bill
            legally bar re-presentation of the matter to
            the grand jury, because the return of a no-
            bill reflects nothing more than the fact
            that a particular grand jury at a particular
            time found that the proofs presented to it

3
  In Sugar, the Court suggested that the State could "proceed
anew" with evidence "unsullied by the constitutional violations
that occurred." 100 N.J. at 245 n.4.



                                   15                               A-2058-15T3
            were    insufficient   to    establish the
            commission of a crime or the participation
            in a crime of a particular accused.

            [New Jersey Grand Jury Manual 95 (Dep't of
            Law & Pub. Safety et al. eds., 4th ed.
            1993).]4

      A trial court addressed the issue of resubmission in a

civil case.         Rosetty v. Twp. Comm. of Hamilton Twp., 82 N.J.

Super. 340, 349 (Law Div. 1964), aff'd o.b., 96 N.J. Super. 66

(App. Div. 1967).       In holding that a no bill was not proof of a

person's innocence, the trial court noted, "[T]he same grand

jury, or its successor, might properly, within the period of the

statute of limitations, review and reconsider the charges and

return an indictment against an accused."                Ibid.     However, the

statement in Rosetty is not the end of our analysis, because the

statement was not essential to the court's decision, and the

court     did   not    address     whether     there    are   limitations        on

resubmission.

      The prevailing view in other jurisdictions is that there is

no   general    limitation    on     a   prosecutor's     power    to    resubmit

matters    to   a   second   grand    jury    after    failing    to    secure   an

indictment from the first.           See Wayne R. LaFave et al., Criminal

4
  By contrast, the United States Attorney's Manual, "suggests
that representment not occur 'in the absence of additional or
newly discovered evidence or a clear circumstance of a
miscarriage of justice.'"    United States. v. Pabian, 704 F.2d
1533, 1538 (11th Cir. 1983).



                                         16                               A-2058-15T3
Procedure, § 15.2(h) (4th ed. 2015); Sara Sun Beale et al.,

Grand Jury Law & Practice, § 8:6 at 8-56 to 8-65 (2d ed. 2015).

In   particular,       "[t]he          longstanding         federal      rule    is    that

resubmissions are permissible, without court approval, even when

the prosecutor presents no additional evidence to the second

grand jury."      LaFave, § 15.2(h) at 535.

     The United States Supreme Court has declared, "[T]he power

and duty of the grand jury . . . is not exhausted or limited by

adverse action taken by a previous grand jury, and . . . a

United States district attorney may present, without leave of

court, charges which a previous grand jury has ignored."                                  Ex

parte    United     States,       287    U.S.       241,   250-51   (1932);      see     also

United     States     v.   Thompson,            251     U.S.     407,    413-15       (1920)

(rejecting    the     argument          that    the    prosecutor       needed    judicial

approval to resubmit charges to a new grand jury upon virtually

the same evidence that failed to persuade a prior grand jury);

United States v. Claiborne, 765 F.2d 784, 794 (9th Cir. 1985)

(holding    "that    the   prosecution's              presentation      of   evidence     to

three    grand    juries      .    .     .     violated     no   procedural       rule    or

judicially-imposed limits on a grand jury's investigatory role,"

where the third grand jury voted to indict after the first two

did not).        "The Double Jeopardy Clause of the Fifth Amendment

does not bar a grand jury from returning an indictment when a




                                               17                                 A-2058-15T3
prior    grand      jury     has    refused    to    do   so."     United     States    v.

Williams, 504 U.S. 36, 49 (1992) (first citing Ex parte United

States, 287 U.S. at 250-51; then citing Thompson, 251 U.S. at

413-15).

      Statutes in a minority of states require judicial approval

of a second presentment.                LaFave, § 15.2(h) at 536; see also

Beale,    §       8:6   at   8-56    n.1,     8-60    n.10   (listing       states    that

restrict submission by statute or court rule).                       Typically, those

courts have required a showing of newly discovered evidence.

LaFave, § 15.2(h) at 536-37.                  For example, in People v. Ladsen,

444 N.Y.S.2d 362, 364-66 (Sup. Ct. 1981), a New York trial court

applied N.Y. Crim. Proc. Law § 190.75 (1977), which states that

a   dismissed       charge     may    not     be    resubmitted    to   a    grand    jury

"unless the court in its discretion authorizes or directs the

people to resubmit such charge to the same or another grand

jury."        The court held that the presentation of new evidence

justified the resubmission.                   Ladsen, 444 N.Y.S.2d at 365-66.

Alternatively, at least one state – Georgia – has statutorily

imposed       a    fixed     limit    of    two      presentations,     except       newly

discovered evidence or fraud by the defendant may justify a

third.     See Ga. Code Ann. § 17-7-53 (2018).                    However, New Jersey

has not adopted a statutory restriction on resubmission.




                                              18                                A-2058-15T3
       The underlying rationale of the federal approach is that

"the power and duty of the grand jury to investigate . . . is

continuous and is therefore not exhausted or limited by adverse

action [previously] taken by a grand jury or by its failure to

act."     LaFave, §15.2(h) at 536 (quoting Thompson, 251 U.S. at

413).       Requiring         judicial       approval      of     resubmission          would

undermine      "the    power    of    grand    juries,      and    the    right      of     the

Government       to    initiate       prosecutions         for    crime     .    .      .   ."

Thompson, 251 U.S. at 415.

       Also, completely denying a prosecutor the right to resubmit

would deprive the prosecutor of the benefit of a continuing

investigation that produces additional evidence of guilt.                                   See

Beale, § 8:6 at 8-57.            A failure to secure an indictment because

of insufficient evidence may occur "because the prosecutor for

strategic reasons decided not to reveal the evidence it had

already gathered."            Andrew Leipold, Why Grand Juries Do Not (and

Cannot) Protect the Accused, 80 Cornell L. Rev. 260, 291 (1995);

see also Beale, § 8:6 at 8-57 (noting that barring resubmission

would   penalize       the    government      for    presenting       "an   abbreviated

version     of       [its]    case     for     the       sake    of   efficiency            and

convenience").         Preventing a prosecutor from resubmitting would

also    deny     a    means    of    correcting      a    grand    jury's       "erroneous




                                             19                                      A-2058-15T3
refusal" to indict, which "is not subject to judicial review."

Ibid.5

      On the other hand, "allowing re-submissions prevents the

grand jury from acting as an effective check on the prosecutor,"

and   disincentivizes   the   prosecution   from   presenting   its   most

complete case in what would be its first and only chance for an

indictment.   Ric Simmons, Re-examining the Grand Jury: Is There

Room for Democracy in the Criminal Justice System?, 82 B.U. L.

Rev. 1, 19 (2002).       Commentators have noted how infrequently

grand juries actually screen out charges in the first place.

See, e.g., Leipold, 80 Cornell L. Rev. at 271-72.          To permit a

prosecutor to resubmit charges, even in those rare instances, at

least absent new and materially different evidence, may dilute

the grand jury's fundamental role, as stated in Hogan, 144 N.J.

at 228 (quoting Murphy, 110 N.J. at 29), "to 'protect[] the

innocent from unfounded prosecution.'"


5
  For example, if the target of a grand jury presentment enjoys
broad public support, it may be difficult to secure an
indictment although the State's evidence is strong.         See
Leipold, 80 Cornell L. Rev. at 309 (noting that "a refusal to
indict may also be based on prejudice against the crime victim,
bias in favor of the target, or other illegitimate reasons").
Preserving discretion to resubmit enables the prosecution to
combat such grand jury predisposition. Cf. People v. Dykes, 449
N.Y.S.2d   284,  288   (App.   Div.   1982)  (stating  although
resubmission should occur sparingly, it is appropriate when a
grand jury "fail[s] to give a case a complete and impartial
investigation").



                                   20                            A-2058-15T3
       Just as "repeated attempts to convict an individual . . .

enhanc[es] the possibility that even though innocent he may be

found guilty," Abbati, 99 N.J. at 430 (quoting Green v. United

States, 355 U.S. 184, 187-88 (1957)), repeated resubmissions to

a grand jury enhances the possibility that an innocent person

will    be   indicted.       See    Niki    Kuckes,      The    Useful,      Dangerous

Fiction of Grand Jury Independence, 41 Am. Crim. L. Rev. 1, 49

(2004) (contending that the prosecutor's power, rather than the

grand jury's, is enhanced by the rule that "[t]he prosecutor is

not    bound   by   one    grand    jury    panel's      decision      to    reject   an

indictment, but can simply seek the same indictment from another

grand jury panel").

       Some courts have indicated that, even in the absence of

statutory limitations, the power to resubmit is not boundless

nor immune from judicial control.                 In Commonwealth v. McCravy,

the Massachusetts Supreme Judicial Court stated it "would bear

consideration"       whether      "submission      of    the    same    evidence       to

multiple grand juries would be inconsistent" with the purpose of

grand juries "to shield 'the innocent against hasty, malicious

and    oppressive    public       prosecutions.'"         723       N.E.2d   517,     522

(Mass.    2000)     (quoting      Jones    v.   Robbins,       74   Mass.    329,     344

(1857)).       However, the court held that "[r]esubmission of the

same     evidence     to    two     grand       juries    present[ed]         no    such




                                           21                                  A-2058-15T3
difficulty."        Ibid.   The court in In re United States, 441 F.3d

44, 63 (1st Cir. 2006), declined to "decide whether there can be

some   form    of    impermissible        grand    jury    shopping    which      would

warrant court inquiry."

       Our Supreme Court has parted with the United States Supreme

Court's more limiting view of judicial oversight of grand jury

proceedings.        See Hogan, 144 N.J. at 231, 236-37 (rejecting the

view    in    Williams,     504    U.S.     at    55,     and   holding    that     the

prosecutor is obliged to present clearly exculpatory evidence to

a grand jury).         Consistent with that independent view, as well

as the principles enunciated in Hogan, Leonardis, and Abbati, we

are confident our Court would place some limits on successive

resubmissions, in order to respect the grand jury's screening

function to shield the innocent; control the abusive exercise of

prosecutorial        discretion;    and         assure    defendants      fundamental

fairness.

                                           C.

       However, we need not map the boundaries of those limits in

this case.      Mindful of the respective roles of the grand jury,

prosecutor, and court, we conclude the trial court did not err

in refusing to dismiss the indictment returned by the                             third

grand jury.         We are satisfied that the State presented new and

material evidence to that third panel.                     Notably, the Court in




                                           22                                A-2058-15T3
Abbati addressed the court's exercise of inherent authority to

dismiss an indictment with prejudice to prevent retrials "where

no new evidence exists."               99 N.J. at 430.               Condon's opinion

testimony not only corroborated Riedel's testimony, but in some

respects supplemented it, by providing greater details as to the

significance of the tools and equipment that defendant and his

father possessed.

      Moreover, each panel fulfilled a fundamental purpose of the

grand jury.      The first protected defendant from what fewer than

twelve grand jurors concluded was a well-founded prosecution,

although   the    second      grand    jury      found     sufficient      evidence        to

indict.    See R. 3:6-8 (requiring concurrence of twelve or more

jurors    in   return    of     indictment);          R.   3:6-1    (requiring         grand

juries not exceeding twenty-three members).                          The third grand

jury, based on expanded evidence, brought to trial someone there

was probable cause to believe committed a crime.

      Also,     defendant       presents        no    evidence     of     an    abuse      of

prosecutorial      discretion.             He        exaggerates     the       record      in

asserting "the prosecutor kept presenting the same evidence to

different grand juries until a grand jury produced a true bill."

The   State      obtained       an     indictment          upon    just       the    second

presentment.      The trial court dismissed the indictment on its

own   motion,    based     on    its    understanding         that      the    State      was




                                           23                                       A-2058-15T3
obliged to present new evidence.                  The State submitted the matter

to a third grand jury, adding a witness, evidently to comply

with the judge's view of the law.                 Two out of three grand juries

found, based on the evidence presented, there was probable cause

defendant committed the crimes charged.                   This is not a situation

in   which    a    prosecutor      "grand     jury      shopped"    a   weak    case    to

multiple     grand      juries    until,     finally,     a     compliant    panel     was

found.

      Given the substantial weight of the State's evidence, and

the significance of the crimes alleged, we discern no abuse of

the prosecutor's broad discretion, let alone a patent and gross

abuse of discretion, in persisting to seek an indictment against

defendant     after      the     first,    and    only    the    first,     grand     jury

declined to return one.             See Leonardis, 73 N.J. at 382; Childs,

242 N.J. Super. at 129.                  In light of the circumstances, that

conclusion would apply, even absent the new evidence presented

to the third grand jury.

      The strength of the State's case, and presentation of new

evidence, would also negate finding that resubmission deprived

defendant of fundamental fairness.                   See Abbati, 99 N.J. at 435

(predicating        dismissal       of     indictment       with    prejudice       after

successive        mistrials      "when     [the    court]     determines       that    the

chance   of       the   State's     obtaining       a    conviction     upon    further




                                            24                                  A-2058-15T3
retrial is highly unlikely").              Defendant also has not proved

that the resubmissions here caused him undue "anxiety, vexation,

embarrassment and expense. . . ."           Id. at 430.6

      Finally,   defendant    does    not    expressly       allege      that   the

prosecutor's persistence was motivated by actual vindictiveness.

Certainly, no presumption of vindictiveness is appropriate.                     The

presumption applies when the State seeks superseding enhanced

charges     apparently   to    retaliate         against    a   defendant       who

successfully     exercised    his    or    her    appellate     rights.         See

Blackledge v. Perry, 417 U.S. 21, 27-28 (1974).                 "The essence of

the concept of prosecutorial vindictiveness is a violation of

due process by retaliating against a defendant for exercising a

legal right."      State v. Gomez, 341 N.J. Super. 560, 571 (App.

Div. 2001).      "[N]o presumption of vindictiveness arises in the

pretrial stage."     Id. at 573.      Although a due process violation

can    be    established      by     "affirmative          proof    of      actual

vindictiveness," id. at 578, no such proof was offered here.

      In sum, we reject defendant's argument that resubmission in

this case warrants dismissal.

6
  We need not tailor the Abbati factors, see supra note 2, for
application to this case, and we leave it to other courts to
determine whether and how they should apply the factors to
future cases.    Given the presentation of new evidence, the
strength of the State's case, and the lack of apparent negative
impact on defendant, we discern no deprivation of fundamental
fairness.



                                      25                                  A-2058-15T3
                                        D.

     We also reject defendant's contention that Riedel's passing

reference    to    defendant's       admission    of    "some   prior   criminal

history" tainted the grand jury.             Riedel explained what prompted

him to pat down defendant for weapons.                 He softened defendant's

actual admissions of prior weapons-related arrests.

     No doubt, trial testimony of such prior bad acts would be

problematic,      even   if   only   offered     to    demonstrate   why    Riedel

patted down defendant, and not to prove defendant's disposition

to commit crimes, and conforming conduct.                 See N.J.R.E. 404(b);

State v. Cofield, 127 N.J. 328, 338 (1992) (establishing test

for admissibility of prior bad act evidence).7               However, "we have

upheld the validity of indictments by grand juries presented

with a variety of evidence that would have been inadmissible at

trial."     Grant, 361 N.J. Super. at 357.             That includes prior bad

act evidence.      See State v. Scherzer, 301 N.J. Super. 363, 428-

29 (App. Div. 1997); State v. Engel, 249 N.J. Super. 336, 361

(App. Div. 1991).        Riedel's testimony did not deprive defendant

of a fundamentally fair grand jury proceeding.


7
  A court would need to weigh the prejudice of disclosure of a
prior criminal history with its probative value.         However,
N.J.R.E. 404(b) does not apply in the grand jury.      See In re
Grand Jury Subpoena Issued to Galasso, 389 N.J. Super. 281, 292
(App. Div. 2006) (stating the grand jury functions "free from
the constraints of the rules of evidence and procedure").



                                        26                                 A-2058-15T3
                              III.

         [At   the  direction  of  the   court,  the
         published version of this opinion omits the
         court's discussion of the trial court's
         denial of the motion to suppress evidence.
         See R. 1:36-3.]

                              IV.

         [At   the  direction  of   the  court,  the
         published version of this opinion omits the
         court's discussion of the trial court's
         sentence of defendant. See R. 1:36-3.]

                               V.

    Affirmed as to the conviction. Remanded for reconsideration

of the minimum period of parole ineligibility.   We do not retain

jurisdiction.




                               27                        A-2058-15T3
