                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-5746-17T4
                                                                     A-5796-17T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

TELQUAN ADAMS,

     Defendant-Respondent.
__________________________

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

MARK RUFFIN, JR.,

     Defendant-Respondent.
___________________________

                    Argued February 6, 2019 – Decided March 8, 2019

                    Before Judges Ostrer, Currier and Mayer.
             On appeal from Superior Court of New Jersey, Law
             Division, Monmouth County, Indictment Nos. 17-09-
             1317 and 18-04-0480.

             Monica L. do Outeiro, Assistant Prosecutor, argued the
             cause for appellant (Christopher J. Gramiccioni,
             Monmouth County Prosecutor, attorney; Monica L. do
             Outeiro, of counsel and on the briefs).

             Zachary G. Markarian, Assistant Deputy Public
             Defender, argued the cause for respondent Telquan
             Adams (Joseph E. Krakora, Public Defender, attorney;
             Zachary G. Markarian, of counsel and on the brief).

             Andrew T. Walsh argued the cause for respondent Mark
             Ruffin (Chamlin, Rosen, Uliano, & Witherington,
             attorneys; Charles J. Uliano and Andrew T. Walsh, on
             the brief).

PER CURIAM

       In these back-to-back appeals, consolidated for purposes of this opinion,

the State of New Jersey appeals from an August 3, 2018 order dismissing

indictments for armed robbery, N.J.S.A. 2C:15-1, against defendants Telquan

Adams (Adams) and Mark Ruffin (Ruffin). 1         We affirm dismissal of the

indictment as to Adams and reverse dismissal of the indictment as to Ruffin.




1
    Judgments of dismissal were entered on August 8, 2018.



                                                                          A-5746-17T4
                                       2
        This case arises from a botched drug deal.        Defendants went to an

apartment in Asbury Park to buy prescription drugs from N.F.2 After discussing

the buy with defendants, N.F. changed her mind and decided not to sell the

drugs. Adams then grabbed the drugs from N.F. and attempted to flee the

apartment. N.F. gave chase and wrestled with Adams. During the struggle

between Adams and N.F., Ruffin drew a gun, pointed the gun at N.F., and pulled

the trigger multiple times. However, the gun failed to discharge. As Ruffin fled

the apartment, N.F.'s mother entered the fray and beat Adams with her cane.

Eventually, Adams managed to run out of the apartment. N.F.'s brother followed

Adams and Ruffin and saw the men get into a waiting car. Ruffin pointed the

gun at N.F.'s brother from the back seat of the car.

        The police were dispatched to N.F.'s apartment in response to a report of

an armed robbery. The officers interviewed N.F., her brother, and her mother.

Originally, N.F. told the police that Adams and Ruffin stole $150 cash. She

failed to tell the officers that defendants came to her apartment to buy drugs and

stole the drugs, not cash. Eventually, N.F. explained defendants were in her

apartment to buy drugs, but maintained the rest of her statement to the police

was truthful.


2
    We use initials to protect the identity of the victim and her immediate family.
                                                                             A-5746-17T4
                                         3
       The police also interviewed N.F.'s brother and mother, and both

corroborated N.F.'s version of the events. When the police showed N.F. a photo

array, she identified Adams and Ruffin as the men in her apartment.

       The police subsequently arrested Ruffin. After waiving his Miranda3

rights, Ruffin admitted he and Adams went to N.F.'s apartment to buy drugs.

Ruffin confirmed Adams grabbed the drugs from N.F. Ruffin denied having a

gun, and the police never recovered a gun or the drugs.

       On September 7, 2017, the State presented the matter to a grand jury. The

assistant prosecutor told the grand jurors that defendants were charged with

armed robbery, N.J.S.A. 2C:15-1, unlawful possession of a weapon, N.J.S.A.

2C:39-5B(1), and possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4A(1). The State presented a detective who testified about the armed

robbery based on statements to the police by N.F., her brother, her mother, and

Ruffin.

       On September 21, 2017, the grand jury indicted defendants on the armed

robbery charge only. Defendants filed motions to dismiss the indictments. The

judge granted the motions, concluding the State failed to provide sufficient

evidence that defendants threatened N.F. with serious bodily injury. The judge


3
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                          A-5746-17T4
                                       4
reasoned the grand jury's "no bill" on the weapons charges meant the State failed

to provide sufficient evidence to find "defendants were armed with, used, or

threatened the immediate use of a deadly weapon."

        A few days after the judge's dismissal of the indictments, the State re-

presented the case to another grand jury. In the re-presentment, the State

pursued only the armed robbery charge against defendants. The State called the

same detective, who gave testimony similar to that presented to the first grand

jury.

        In the grand jury re-presentment, the assistant prosecutor addressed each

defendant's culpability. The assistant prosecutor gave the grand jurors the

following instruction:

              if you are [a] participant in a crime, you are responsible
              for the consequences of the people that you're with . . . .
              Let's talk about a standard bank robbery, like what you
              see on TV. . . . And two people . . . elect to commit this
              robbery. And I'm going to drive and the person I'm with
              is going to go into the bank armed with a gun, and
              they're going to rob the bank . . . . We get to the scene,
              we get to the bank, the robbery happens, and we're
              caught. From a legal perspective, being a participant,
              an actor I am responsible just as much as the person
              with the gun for that crime. I'm responsible even to the
              point of what are called foreseeable consequences. For
              example, let's say that we plan a robbery. We go to the
              bank . . . . You go into the bank with a weapon and you
              end up shooting the security guard. And you kill him.
              Now you come out, we get caught. My involvement,

                                                                            A-5746-17T4
                                          5
              my participation was, bank robber. I in no way knew
              that she would shoot the security guard. However,
              going into a bank to rob it, armed with a weapon, is a
              reasonably foreseeable consequence of your actions.

On April 12, 2018, the grand jury indicted both defendants on the armed robbery

charge.

        Defendants filed motions to dismiss the second indictment. On August 3,

2018, the judge again dismissed the indictments. The judge explained the facts

in the second grand jury presentment were identical to the first grand jury

presentment. The judge concluded the second indictment failed for the same

reasons as the first indictment.

        On appeal, the State argues the judge erred in dismissing the indictments

against defendants because: (1) the judge erroneously believed the gun used in

the armed robbery was necessary evidence for an indictment; (2) the judge

incorrectly attached legal significance to the first grand jury's inconsistent

finding of no probable cause regarding the weapons possession charges in the

first grand jury presentment; and (3) the judge failed to accord all reasonable

inferences in favor of the State based on the evidence presented to the grand

jury.

        We review a trial court's dismissal of an indictment for abuse of

discretion. State v. Tringali, 451 N.J. Super. 18, 27 (App. Div. 2017) (citing

                                                                           A-5746-17T4
                                        6
State v. Gruber, 362 N.J. Super. 519, 527 (App. Div. 2003)). "A trial court

decision will constitute an abuse of discretion where 'the decision [was] made

without a rational explanation, inexplicably departed from established policies,

or rested on an impermissible basis.'" State v. Triestman, 416 N.J. Super. 195,

202 (App. Div. 2010) (alteration in original) (quoting United States v. Scurry,

193 N.J. 492, 504 (2008)). "When the decision to dismiss relies on a purely

legal question, however, we review that determination de novo."          State v.

Twiggs, 233 N.J. 513, 532 (2018). We must ensure the trial court employed the

correct legal standard in dismissing the indictment. State v. Abbati, 99 N.J. 418,

436 (1985).

      "Once the grand jury has acted, an 'indictment should be disturbed only

on the clearest and plainest ground,' and only when the indictment is manifestly

deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228–29 (1996)

(quoting State v. Perry, 124 N.J. 128, 168 (1991)). We "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).




                                                                            A-5746-17T4
                                        7
      Applying our standard of review to the dismissal of the indictment against

Adams, we are satisfied the dismissal was proper, but do so for reasons other

than those expressed by the judge.4

      "A prosecutor must charge the grand jury 'as to the elements of specific

offenses.'" State v. Eldakroury, 439 N.J. Super. 304, 309 (App. Div. 2015)

(quoting Triestman, 416 N.J. Super. at 205). "[A]n indictment will fail where a

prosecutor's instructions to the grand jury were misleading or an incorrect

statement of law." Ibid. A grand jury instruction must not "relieve[] the State

of the burden of proving defendant's mens rea as to an essential element of the

offense." Eldakroury, 439 N.J. Super. at 309. If an instruction relieves the State

of that burden, it is "blatantly wrong and warrant[s] dismissal of the

indictment." Ibid.5


4
  We affirm or reverse judgments and orders, not reasons. State v. Heisler, 422
N.J. Super. 399, 416 (App. Div. 2011) (citing Isko v. Planning Bd. of Twp. of
Livingston, 51 N.J. 162, 175 (1968)). A correct result, even if grounded on an
erroneous basis in fact or in law, will not be overturned on appeal. See GNOC,
Corp. v. Dir., Div. of Taxation, 328 N.J. Super. 467, 474 (App. Div. 2000)
(citing Ellison v. Evergreen Cemetery, 266 N.J. Super. 74, 78 (App. Div. 1993)).
5
  During oral argument, the State cited State v. Hakim, 205 N.J. Super. 385, 388
(App. Div. 1985) for the proposition that an indictment need not specifically
include "accomplice liability." While we agree the indictment against Adams
need not "allege accomplice liability as a prerequisite," id., nothing in Hakim
relieves the State of its obligation to provide proper instructions to the grand
jury.
                                                                            A-5746-17T4
                                        8
      The robbery statute provides:

            a. Robbery defined. A person is guilty of robbery if, in
            the course of committing a theft, he:

            (1) Inflicts bodily injury or uses force upon another; or

            (2) Threatens another with or purposely puts him in fear
            of immediate bodily injury; or

            (3) Commits or threatens immediately to commit any
            crime of the first or second degree.

            An act shall be deemed to be included in the phrase "in
            the course of committing a theft" if it occurs in an
            attempt to commit theft or in immediate flight after the
            attempt or commission.

            b. Grading. Robbery is a crime of the second degree,
            except that it is a crime of the first degree if in the
            course of committing the theft the actor attempts to kill
            anyone, or purposely inflicts or attempts to inflict
            serious bodily injury, or is armed with, or uses or
            threatens the immediate use of a deadly weapon.

            [N.J.S.A. 2C:15-1.]

      "Whether a defendant is a principal or an accomplice, the State must prove

[the defendant] possessed the mental state necessary to commit the offense."

State v. Whitaker, 200 N.J. 444, 458 (2009) (citing N.J.S.A. 2C:2-2(a)). "An

accomplice is only guilty of the same crime committed by the principal if he

shares the same criminal state of mind as the principal." Ibid. (citing State v.

White, 98 N.J. 122, 129 (1984)). There is a distinction in the law between a

                                                                          A-5746-17T4
                                       9
defendant who shared the purpose to commit a robbery with a deadly weapon

and a defendant who shared only the purpose to commit robbery. If a defendant

shared the purpose to commit a robbery, but not the purpose to use a deadly

weapon, then the defendant would be guilty of robbery rather than armed

robbery. See State v. Hammock, 214 N.J. Super. 320, 322 (App. Div. 1986).

      Here, the assistant prosecutor informed the grand jury that they could

indict Adams for armed robbery simply because he was a "participant." He told

the grand jurors that "[f]rom a legal perspective, being a participant, an actor

[is] responsible just as much as the person with the gun for that crime."

      Having reviewed the record, we are satisfied the assistant prosecutor

incorrectly instructed the grand jury that Adams was not required to have the

purpose to commit a robbery with a weapon as long Adams was a participant.

      The grand jury asked the assistant prosecutor to explain "each of the men's

roles in the case." The State failed to explain that, to indict Adams for armed

robbery, the grand jury had to determine Adams possessed the purpose to

commit a robbery with a weapon.        The instruction given by the assistant

prosecutor, stating the grand jury need only find Adams was a "participant,"

improperly relieved the State of its burden of proof as to the required mens rea

for an indictment against Adams on the armed robbery charge. Because the


                                                                            A-5746-17T4
                                      10
instruction provided to the grand jury was an incorrect statement of the law,

dismissal of the indictment as to Adams was proper.

         Applying our standard of review to the judge's dismissal of the indictment

against Ruffin, we reach a different conclusion. The judge's dismissal of that

indictment was erroneous because the State presented some evidence Ruffin

aided in the theft of the drugs and attempted to use a deadly weapon during the

theft.

         "Committing or attempting to commit a theft is a necessary element of the

crime of robbery." Whitaker, 200 N.J. at 459 (citing State v. Farrad, 164 N.J.

247, 257 (2000)). A person is guilty of theft if "he unlawfully takes, or exercises

unlawful control over, movable property of another with purpose to deprive him

thereof." N.J.S.A. 2C:20-3(a). "[A]ssaultive or intimidating conduct necessary

to elevate theft to robbery somehow must be related to the theft itself. If such

assaultive or intimidating conduct occurs 'in immediate flight after the attempt

or commission' of the theft, then what was a theft becomes a robbery."

Whitaker, 200 N.J. at 460 (citations omitted) (quoting N.J.S.A. 2C:15-1(a)).

         Robbery in the first degree occurs if the "actor attempts to kill anyone, or

purposely inflicts or attempts to inflict serious bodily injury, or is armed with,

or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-


                                                                               A-5746-17T4
                                         11
1(b). Because robbery is a specific intent crime, the State must show the

defendant purposefully used, or threatened the use of, a deadly weapon. State

v. Nero, 195 N.J. 397, 401 (2008).6

      Here, N.F. told the police that Ruffin brandished a gun after she began to

wrestle with Adams. Under the circumstances, the grand jury could reasonably

infer Ruffin had the purpose to help Adams "unlawfully take[], or exercise[]

unlawful control over," the drugs and thus "deprive" N.F. of her property.

N.J.S.A. 2C:20-3. Based on the testimony, the grand jury could circumstantially

conclude Ruffin had the intent to take the drugs because he accompanied Adams

to the apartment to buy the drugs and fled in the same car as Adams after N.F.

refused to sell the drugs. Even if Ruffin's attempt to use the gun was not part of

the theft, the use of the gun was "intimidating conduct" in the "immediate flight

after attempt or the commission of the theft." Whitaker, 200 N.J. at 460.

      On the charge of armed robbery, the State was required to present some

evidence that Ruffin was armed with a deadly weapon and purposefully put N.F.

in fear of serious bodily harm. Hogan, 144 N.J. at 236; N.J.S.A. 2C:15-1. In

the presentment to the grand jury, the State offered testimony regarding N.F.'s


6
  The State need not present the firearm to obtain an indictment, or even a
conviction, for armed robbery. See State v. Hickman, 204 N.J. Super. 409, 414–
15 (App. Div. 1985).
                                                                            A-5746-17T4
                                       12
statement to the police. N.F. told the police Ruffin brandished a gun, attempted

to shoot her several times, and the gun failed to discharge. While fleeing, Ruffin

then pointed the gun at N.F.'s brother. Based on the testimony, the grand jury

could reasonably infer Ruffin intended to kill N.F. with a gun, or purposely put

her in fear of serious bodily injury. The State need not present the weapon or

testimony of N.F.'s fear because the evidence demonstrated Ruffin was armed

with a deadly weapon and attempted to use it during the theft.          Based on

circumstantial evidence and reasonable inferences, we are satisfied the State

presented some evidence to the grand jury to support each element of the armed

robbery charge against Ruffin.

      Dismissal of the indictment as to Adams is affirmed.7 Dismissal of the

indictment as to Ruffin is reversed and the indictment is reinstated.




7
 The dismissal of the indictment as to Adams is without prejudice, and the State
may elect to re-present the case as to Adams to a third grand jury.
                                                                            A-5746-17T4
                                       13
