                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-3600-13T2
                                                  A-4230-13T1

STATE OF NEW JERSEY,                     APPROVED FOR PUBLICATION

      Plaintiff-Respondent,                   June 15, 2016

v.                                         APPELLATE DIVISION


JAMES E. JONES and LIKISHA JONES,

      Defendants-Appellants,

and

GODFREY J. GIBSON,

      Defendant.


          Submitted February 24, 2016 – Decided June 15, 2016

          Before Judges Alvarez, Haas, and Manahan.

          On appeal from the Superior Court of New
          Jersey,   Law  Division,   Monmouth County,
          Indictment No. 13-01-0049.

          Christopher   T.   Campbell,   attorney         for
          appellant Likisha Jones in A-3600-13.

          Joseph E. Krakora, Public Defender, attorney
          for appellant James E. Jones in A-4230-13
          (Jason A. Coe, Assistant Deputy Public
          Defender, of counsel and on the briefs).

          John J. Hoffman, Acting Attorney General,
          attorney for respondent State of New Jersey
          in A-3600-13 (Daniel I. Bornstein, Deputy
          Attorney General, of counsel and on the
          brief).
            John J. Hoffman, Acting Attorney General,
            attorney for respondent State of New Jersey
            in   A-4230-13  (Joseph  A.   Glyn,  Deputy
            Attorney General, of counsel and on the
            brief).

       The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

       Co-defendants       Likisha    Jones1    and     James      E.    Jones       appeal2

their    convictions,      contending     that       the    five-year          statute      of

limitations bars their prosecution.                  See N.J.S.A. 2C:1-6(b)(1).

The matters are consolidated for decision as they involve one

course of events, one indictment, and raise duplicate claims of

error.     Each defendant entered a guilty plea to third-degree

conspiracy      to      hinder       apprehension          and/or        obstruct         the

administration of law, N.J.S.A. 2C:5-2, 2C:29-3, and/or 2C:29-1,

and    third-degree     hindering      apprehension,         N.J.S.A.          2C:29-3(a).

They     were   sentenced     on     February     28,      2014,        to    two     years'

probation.        The      remaining     counts       of    the     indictment          were

dismissed as to these defendants.3




1
  We refer to members of the Jones family by their first names
for the sake of clarity.
2
  Godfrey Gibson, the third co-defendant, is not involved in the
appeal.
3
  Only Gibson        was    indicted     in    two    counts        of       second-degree
hindering.



                                          2                                         A-3600-13T2
      Defendants contend that the Law Division judge erred in his

application of the DNA exception to the statute of limitations.

See N.J.S.A. 2C:1-6(c).             He denied their pre-plea motion to

dismiss the indictment on that basis.                 Although we agree with

this contention, we also conclude that defendants' conduct over

ten   years    made     the    conspiracy     a     continuing    offense,    and

therefore the statute of limitations did not bar the prosecution

of that crime.

      We now reverse the denial of the motion to dismiss the

indictment     as     to     the   counts    which     charged    fourth-degree

tampering     with    evidence,    N.J.S.A.       2C:28-6(1),    hindering,   and

fourth-degree obstruction, N.J.S.A. 2C:29-1(a).                   We affirm the

denial of the motion, albeit for different reasons,4 as to the

conspiracy count.

      Because a conspiracy to obstruct is a fourth-degree crime,

the   conviction      also    becomes   a    fourth-degree       offense.     See

N.J.S.A.    2C:5-4(a).        Because   of   this    anomalous    outcome,    the

dismissal of only one of defendants' two convictions and the

reduction in the degree of the remaining offense, they have the

option of withdrawing from their guilty pleas; the prosecution

4
  "[A] correct result predicated upon an incorrect basis does not
preclude an affirmance of [a] ruling."     Velazquez v. Jiminez,
336 N.J. Super. 10, 43 (App. Div. 2000), aff'd, 172 N.J. 240
(2002).




                                        3                               A-3600-13T2
would    then   proceed     solely       on    the       conspiracy     count.       In     any

event,    the   matter      is    remanded         for    resentencing       just    on     the

conspiracy charge.

                                              I.

      Defendants       do        not    dispute          the    grim,       tragic        facts

surrounding     the    death       of    Jon-Niece          Jones      detailed      by     the

investigating     officer         before      the    grand     jury    on    December      17,

2012.5     His testimony essentially reiterated his interview with

Iyonna Jones, the victim's sister.                   He also repeated information

supplied by defendants.            We recount those facts here.

      As a result of Iyonna's disclosures and DNA testing                                    of

herself and her father, the authorities were able to identify a

child's charred bones, discovered in 2005 in an isolated wooded

spot near the New Jersey Turnpike.                   The DNA sample obtained from

Jon-Niece's father was also a match; he was confirmed as the

father of the victim.

      Although Jon-Niece's birth was recorded, she never attended

school nor received medical or dental care.                           Over the course of

her     life,   her    mother,         Elisha       Jones,     neglected,        physically

abused, and starved her.




5
   The events         are    principally            drawn      from    the    grand       jury
presentment.



                                              4                                      A-3600-13T2
       On    August      14,     2002,      then      nine-year-old          Jon-Niece         was

staying with her mother and then ten-year-old Iyonna at her

maternal aunt Likisha's home in New York City.                                Sometime that

day,   Jon-Niece         collapsed       after       being    fed    oatmeal       and    Elisha

returned her to a bedroom.

       During     the     night,       Iyonna        remembers       being     awakened         by

Elisha,     who   asked      her     for    a     garbage     bag.      Her    mother         then

disappeared       into    Jon-Niece's            bedroom.      The    following          morning

Elisha and Jon-Niece were gone.

       Elisha left a note informing Likisha that Jon-Niece had

stopped breathing and that Elisha had gone back to her home in

Staten      Island    with     the     body.         Iyonna    remembered          that     after

Likisha      found    the      note,       she    called      James    to     come       to    the

apartment immediately.               James is Likisha's brother, and Jon-

Niece and Iyonna's uncle.

       Iyonna also remembered Likisha speaking to Elisha on the

phone, and that           Elisha was frightened, "didn't know what to

do[,]" and stated that Jon-Niece "was sitting in a bucket [and]

bag, along with cement and gasoline."                           When Elisha said she

planned     to    burn    down     the     building      to    get    rid     of    the     body,

Likisha told her to "hold off" and that "they" would go to

Staten      Island.         Iyonna       recalled       that     Likisha,          James,      and

Likisha's husband Godfrey Gibson drove to Elisha's apartment.




                                                 5                                       A-3600-13T2
      James admitted that he was in the car when Gibson picked up

Elisha, who placed a green plastic bin in the back of Gibson's

vehicle.     After travelling from Staten Island to a remote area

in   New   Jersey,   James   helped   Elisha   remove   the   bin   ——   which

smelled of gasoline —— from the car.           He did not accompany her

into the woods, but while he was waiting, he saw a fire behind

the trees.      James told the investigator that "the only thing

that kept him sane this entire time was that he did not see the

body."

      A few days later, Likisha, Gibson, and James held a family

meeting at which they directed Iyonna to say Jon-Niece was with

her father if she was asked about her.              Elisha died shortly

after Jon-Niece, in December 2002.

      Iyonna remembered arguing with Likisha approximately four

years later and telling her that she was going to report Jon-

Niece's death.       Likisha struck Iyonna, threatening that she too

would go to jail if she reported it.

      When Iyonna was eighteen, James told her that Jon-Niece's

body had been burned and hidden in a dark area somewhere in New

Jersey.    He said he had fallen asleep in the car and was unsure

of the exact location, but that "they" put the body in a bucket,

poured cement and water over it, and set it on fire.




                                      6                              A-3600-13T2
    Likisha's     recollection      was     somewhat    at    variance    with

Iyonna's.   Likisha remembered that after Jon-Niece died during

the night, Elisha returned to her home in Staten Island.                 Elisha

left a note saying the child had stopped breathing, that she was

not coming back, and that she had used a laundry or shopping

cart to remove the body.        When Likisha tried to contact Elisha,

she did not answer the phone.

    Likisha    recalled    Elisha     returning    to   the    apartment     in

Manhattan some time later, and that she spoke to Gibson outside.

Gibson, James, and Elisha took the car and were gone for several

hours.   The men returned without her.          When Likisha next talked

to her sister, Elisha told her to "stay out of her life."

    After Elisha died, Likisha found another note, confirming

that Jon-Niece was dead.        While in the process of cleaning out

Elisha's apartment, Likisha found a bag of cement and a shovel

in a closet.

    In 2008, James watched an "America's Most Wanted" episode

titled "Baby Bones."      As the program began, James phoned Likisha

to turn on her television.       Both were upset, as the segment was

clearly about Jon-Niece.         At that point, Likisha told James

about the letter Elisha had left behind.

    On   August   23,   2012,    as   the    investigating      officer    who

testified before the grand jury arrived in Manhattan for his




                                      7                             A-3600-13T2
first meeting with Gibson and Likisha, Iyonna called him.          She

said Gibson had just phoned and threatened to kill her if he

found out that she had spoken to the police.

    When initially interviewed, James denied any involvement,

insisting Jon-Niece was with her father.        When he eventually

acknowledged that the child was dead, he said Likisha was not in

the car when Jon-Niece's body was driven to New Jersey.       Both he

and Likisha claimed that she stayed behind to watch the other

children in the home, including Iyonna.

                                II.

    Likisha   and   James's   pretrial    motions   to   dismiss   the

indictment were based on the five-year statute of limitations.

They argued that all the statutory elements of the crimes were

complete as of August 2002 and that therefore the indictment had

to be dismissed.

    N.J.S.A. 2C:1-6(c), the DNA exception, provides that the

applicable statute of limitations

         starts to run on the day after the offense
         is    committed,   except   that    when   the
         prosecution    is   supported    by   physical
         evidence that identifies the actor by means
         of DNA testing or fingerprint analysis, time
         does not start to run until the State is in
         possession of both the physical evidence and
         the DNA or fingerprint evidence necessary to
         establish the identification of the actor by
         means    of   comparison  to   the    physical
         evidence.




                                 8                           A-3600-13T2
       The Law Division judge agreed with the State's position

that    the   DNA    match   which     identified      the   victim    tolled     the

running of the statute.         He expanded the scope of the exception

to   include       "instances   when    the     identification    of    a    victim

through DNA analysis can be used to determine the identity of a

wrongdoer."        Thus he opined that the statute of limitations did

not begin to run until 2012, when the remains were identified

and the indictment returned.             The judge further observed that

"both   parties      acknowledge[d]      that    the   'continuing      course      of

conduct' exception [was] inapplicable to the alleged offenses."

       Likisha's points on appeal are:

              I.     THE   TRIAL  COURT   ERRED  BY   DENYING
                     DEFENDANT'S   MOTION   TO  DISMISS   THE
                     INDICTMENT BECAUSE THE DNA EXCEPTION TO
                     THE STATUTE OF LIMITATIONS PURSUANT TO
                     N.J.S.A. 2C:1-6[(c)] IS NOT APPLICABLE
                     TO HER CASE.

                     a.   The plain and unambiguous meaning
                          of N.J.S.A. 2C:1-6[(c)] is that
                          DNA from a suspect must match DNA
                          evidence found at the scene.

                     b.   Assuming that the DNA exception to
                          N.J.S.A. 2C:1-6[(c)] is ambiguous
                          or     subject     to     multiple
                          interpretations, the legislative
                          history reveals intent to require
                          a match of DNA samples from a
                          suspect.

                     c.   Assuming     the    statute     of
                          limitations does not require at
                          least one DNA sample to have come
                          from the defendant, the results of



                                         9                                  A-3600-13T2
                      the    comparison    of    physical
                      evidence to DNA evidence was not
                      necessary    to    establish    the
                      identity of Likisha Jones.

           II.   ASSUMING THE DEFENDANT'S PROSECUTION
                 WAS NOT BARRED BY THE STATUTE OF
                 LIMITATIONS,   THE   STATE   FAILED TO
                 PRESENT A PRIMA FACIE CASE AGAINST
                 LIKISHA JONES TO THE GRAND JURY.

    James's point on appeal is:

           POINT I
           THIS PROSECUTION WAS BARRED BY THE STATUTE
           OF   LIMITATIONS,  AND  THE   DNA   TOLLING
           PROVISION IN N.J.S.A. 2C:1-6[(c)] DOES NOT
           APPLY.

                                III.

    Before any discussion of the issues, we must address the

State's "concession," made in its brief to the trial judge,

regarding whether any of the offenses were a continuing course

of conduct that by definition would fall outside the limitations

statute.   For purposes of appellate review, that concession is

not binding.     See State v. Josey, 290 N.J. Super. 17, 32 (App.

Div.)   ("our    judgments   are    precedents,   and   the    proper

administration of criminal law cannot be left merely to the

stipulation of parties[.]") (quoting Young v. United States, 315

U.S. 257, 259, 62 S. Ct. 510, 511, 86 L. Ed. 832, 835 (1942)),

certif. denied, 146 N.J. 497 (1996); State v. Elysee, 159 N.J.

Super. 380, 384 (App. Div. 1978) ("Neither the State nor the




                                   10                         A-3600-13T2
court is bound by a stipulation of a matter of law which is

contrary to controlling law on the subject.").

                                         IV.

       Now turning to defendants' central argument, it is well-

established that an indictment should be dismissed "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)).         Although   we    defer      to   the   trial    court's

"exercise of . . . discretionary power" in deciding whether to

dismiss an indictment, State v. Warmbrun, 277 N.J. Super, 51, 60

(App. Div. 1994), certif. denied, 140 N.J. 277 (1995), such

deference is not required when we are asked to review a "trial

court's interpretation of the law and the legal consequences

that flow from established facts[,]" Manalapan Realty, L.P. v.

Twp. Comm., 140 N.J. 366, 378 (1995).                   An indictment returned

after the expiration of the five-year statute of limitations

would clearly be "manifestly deficient or palpably defective."

       The   statute    of    limitations      in   a     criminal    case    is     "an

absolute     bar   to   the   prosecution      of   the    offense."         State    v.

Cagno, 211 N.J. 488, 506 (2012) (quoting State v. Short, 131

N.J. 47, 55 (1993)), cert. denied, ___ U.S. ___, 133 S. Ct. 877,

184 L. Ed. 2d 687 (2013).          It is designed to protect a defendant




                                         11                                   A-3600-13T2
"from      being   put    to   his    defense      after    memories         have    faded,

witnesses have died or disappeared, and evidence has been lost."

Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314, 65 S. Ct.

1137, 1142, 89 L. Ed. 1628, 1635 (1945); see also State v.

Diorio,      216   N.J.    598,      612   (2014)       (statutes      of    limitations

"protect     individuals       from    charges      when   the       basic    facts       have

become obscured by time.").

      On appeal, as they did in the Law Division, Likisha and

James contend the five-year limitation mandates dismissal of the

indictment because the DNA exception applies only to those cases

in which DNA matches the "actor."                   In contrast, in this case,

DNA from family members matched the victim.                      Nothing about those

results inherently suggested the identity of the perpetrators

whose conduct led to the child's death, or the destruction of

her remains.

      Certainly          the   DNA     comparison          identified         Jon-Niece,

corroborated       Iyonna's    story,       and   in    those    important         respects

advanced     the     prosecution.          But    the   language      in     the    statute

creating an exception for DNA evidence does not encompass its

use in order to identify persons other than the actor, even if

the match may ultimately lead investigators to the perpetrator

of   the    crime.       The   dispositive        question      is    whether       the    DNA

evidence itself identifies the perpetrator.




                                            12                                      A-3600-13T2
      "[W]hen the prosecution is supported by physical evidence

that identifies the actor by means of DNA testing . . . time

does not start to run until the State is in possession of both

the physical evidence and the DNA . . . necessary to establish

the identification of the actor by means of comparison to the

physical     evidence."     N.J.S.A.      2C:1-6(c).       Any   grammatical,

logical construction of this language leads inescapably to the

conclusion that the DNA in question must be that of the person

or persons who committed the offense.            See State v. Rangel, 213

N.J. 500, 509 (2013) (quoting DiProspero v. Penn, 183 N.J. 477,

492 (2005)) (statutory interpretation requires "looking at the

statute's plain language, giving words 'their ordinary meaning

and significance.'").      The statute employs the term "actor" to

mean the perpetrator of the crime.              State v. Twiggs, ___ N.J.

Super. ___, ___ (App. Div. 2016) (slip op. at 9).

      In Twiggs, Gary Twiggs and Dillon Tracy were charged with

an   armed   robbery   committed   on    June   16,    2009.     Id.   at   2-3.

Despite DNA material having been timely sent to the State Police

laboratory for analysis, no match was found until July 2, 2014,

and it identified Tracy, but not Twiggs.              Tracy later implicated

Twiggs in the crime.      Id. at 3-4.     On December 2, 2014, both men

were indicted, months after the statute of limitations had run.




                                    13                                 A-3600-13T2
       In Twiggs, we observed that were the prosecution to go

forward based solely on the confession of another, it "would []

override the entire limitations period for any party accused of

a crime when any single defendant [directly identified through

DNA] names another party in a confession."                  Id. at 10.      Unlike

when a perpetrator is identified by DNA evidence, a prosecution

based solely on the word of another who is identified by DNA

raises the precise jeopardy the statute is intended to avoid:

the difficulties in mounting a defense "when the basic facts

have become obscured by time."               See Diorio, supra, 216 N.J. at

612.

       Similarly,    the   use   of    DNA     taken    from    innocent    family

members to identify the victim does not distinguish the case

from   one   in   which,   years      after    a   crime,   a     person   who   had

previously remained silent decides to come forward and make an

accusation.       In this case, only non-DNA, purely circumstantial

evidence     establishes     the       identity        of   the     perpetrators.

Therefore, there is no meaningful distinction between this case

and any other in which disclosures are made after the statute

has expired that point the finger at an alleged perpetrator.                       To

suggest a distinction exists would eliminate in one stroke the

protection found in the statute of limitations.                     The use of a




                                        14                                 A-3600-13T2
DNA match to someone other than the perpetrator does not come

within the exception.

                                            V.

      Next we consider whether the indictment survives under a

"continuing      offense"      analysis,         assessing   each     count    in     turn.

Our   Supreme        Court    has    recently       reiterated        the    distinction

between crimes that can be classified "as either a discrete act

or a continuing offense."             Diorio, supra, 216 N.J. at 614.                   "'A

discrete act' is one that occurs at a single point in time

. . . .         A continuing offense involves conduct spanning an

extended     period     of    time    and     generates      harm      that    continues

uninterrupted until the course of conduct ceases."                            Ibid.     The

New   Jersey     Code    of    Criminal      Justice      includes      a    presumption

against      continuous       offenses;       however,       that     presumption        is

overcome if the statute defining the offense includes conduct

which persists over time.                 Id. at 615-16.         If the scheme that

constitutes      the    offense      is    one    which   "play[s]      out    over     the

course of many days, weeks, months, or even years[,]" then it is

a   course      of   conduct.        See     id.    at    618.        The    statute     of

limitations is tolled until the time the last act occurs in the

series of events constituting the scheme.                        Id. at 613.            The

statute    of    limitations        applies,      obviously,     if    the    continuing

offense exception does not.




                                            15                                   A-3600-13T2
      Likisha and James were charged with fourth-degree tampering

with physical evidence.           See N.J.S.A. 2C:28-6.                 The indictment

alleges   the       offense     occurred        when    defendants       removed      "the

deceased body of Jon-Niece Jones with purpose to impair its

verity or availability in . . . [an] investigation[.]"                                 The

indictment tracks the statute which reads:

              A person commits a crime of the fourth
              degree   if,  believing   that  an  official
              proceeding or an investigation is pending or
              about to be instituted, he:

              (1) Alters, destroys, conceals or removed
              any article, object . . . or other thing of
              physical substance with purpose to impair
              its   verity   or    availability  in  such
              proceeding or investigation. . . .

              [N.J.S.A. 2C:28-6(1).]

      The offense of tampering falls within the category of a

discrete offense.          Defendants, "at a single point in time[,]"

assisted Elisha in destroying and concealing Jon-Niece's body.

See Diorio, supra, 216 N.J. at 614.

      The statutory language defining the offense indicates that

the   crime    is   the    conduct   necessary          to   destroy    or     conceal    a

physical item so as to "impair" a prosecution.                          In this case,

after driving Elisha and her daughter's body to New Jersey,

nothing   further         was   required.          The       elements     of    N.J.S.A.

2C:28-6(1) were completed in 2002.                     Because the crime occurred




                                           16                                    A-3600-13T2
more    than      five    years    prior,        the   charge     should      have      been

dismissed pursuant to the statute of limitations.

       Defendants were also charged with hindering in that they

attempted to suppress the investigation, including by tampering

with a witness, Iyonna, "which might aid in the discovery or

apprehension       of    Elisha    Jones    or    in   the    lodging    of    a     charge

against her."            N.J.S.A. 2C:29-3(a) provides that "[a] person

commits     an    offense    if,    with     purpose     to     hinder     the     .    .   .

prosecution of another for an offense[,]" he or she tampers with

a witness.        Elisha died in December 2002.               Since no prosecution

against Elisha could proceed after her death, that element of

the statute could not be met and this charge should have also

been dismissed.

       In   the     indictment,      the     State      alleged     that      defendants

obstructed the administration of law by their intimidation of

Iyonna.     The obstruction statute states:

             a. A person commits an offense if he
             purposely obstructs, impairs or perverts the
             administration of law or other governmental
             function or prevents or attempts to prevent
             a public servant from lawfully performing an
             official   function  by   means  of  flight,
             intimidation, force, violence, or physical
             interference or obstacle, or by means of any
             independently unlawful act.

             [N.J.S.A. 2C:29-1(a).]




                                            17                                     A-3600-13T2
      The first act of obstruction occurred in 2002 shortly after

Jon-Niece's death, when the adults told Iyonna to lie if she

were asked about her sister's whereabouts.                             Likisha arguably

committed a second act of obstruction in 2006, when Iyonna was

fourteen, when she again threatened her in order to keep her

quiet.     James did nothing further after 2002.

      Although Iyonna continued to be "intimidated," and in that

sense    the     harm   continued,        neither         of   these       defendants     took

action after 2006.           Therefore the obstruction charges must also

be dismissed as barred by the five-year limitation term.                                   The

focus under the obstruction statute is the conduct engaged in by

the actor, not merely the effect.

                                           VI.

      Finally, we turn to the charge of conspiracy.                               A person is

guilty     of    conspiracy        if,   with       the   purpose      of    "promoting     or

facilitating its commission," he or she agrees with others to

engage in a crime, or agrees to aid in the planning, attempt, or

solicitation to commit a crime.                 N.J.S.A. 2C:5-2(a).

      Conspiracy        is    "a     continuing           course      of    conduct      which

terminates when the crime or crimes which are its object are

committed or the agreement that they be committed is abandoned

by   the    defendant        and    by   those        with     whom    he    conspired[.]"

N.J.S.A.        2C:5-2(f)(1).            "If    the       conspiracy         is    one   that




                                               18                                    A-3600-13T2
contemplates a continuity of purpose and a continued performance

of acts, it can be inferred to exist until there has been an

affirmative showing that it has terminated."                  Cannel, New Jersey

Criminal Code Annotated, comment 12 on N.J.S.A. 2C:5-2 (2015-

2016) (citing State v. Cagno, 211 N.J. 488, 511-12 (2012)); see

also State v. Savage, 172 N.J. 374, 403 (2002) ("a conspiracy

may continue beyond the actual commission of the object of the

conspiracy if it is shown that a conspirator enlisted false

alibi witnesses, concealed weapons, or fled in order to avoid

apprehension.").

    In      State    v.     Taccetta,    in    deciding       whether   N.J.R.E.

803(b)(5)       authorized    the    admission      of    a     co-conspirator's

statement, we said that just as "a defendant is liable for the

acts of co-conspirators even though defendant lacks knowledge of

those acts, the statements of co-conspirators must be admissible

against     a   defendant     when   they     are   in   furtherance    of    the

conspiracy."        301 N.J. Super. 227, 253 (App. Div.), certif.

denied, 152 N.J. 187, 152 N.J. 188 (1997).                Additionally, "once

the prosecution demonstrated the defendant's involvement in a

conspiracy, the defendant's continued involvement is presumed

until the defendant proves termination or withdrawal."                       Ibid.

This includes statements relating to past events where necessary

to "prompt one not a member of the conspiracy to respond in a




                                        19                              A-3600-13T2
way that furthers the goals of the conspiracy."                     Ibid. (citing

United States v. Flores, 63 F.3d 1342, 1377 (5th Cir. 1995)).

       Therefore, as to the conspiracy, because the statute and

caselaw define it as a continuing offense, the question we must

answer is "when the last act . . . occurred."                      Diorio, supra,

216 N.J. at 613.

       In relevant part, the indictment alleged that defendants

unlawfully agreed to commit the crimes "of . . . [o]bstructing

the [a]dministration of [l]aw[.]"               The overt acts specified in

the indictment, however, focused on the tampering and hindering

conduct:      the transportation of Jon-Niece's body from New York

to New Jersey, the destruction of her body, and the concealment

of   her     remains   "in   a   secluded      area   nearby      the   New     Jersey

Turnpike[.]"

       But    "the   State   may     prove   overt    acts      other   than     those

alleged in the indictment."             State v. Klausner, 4 N.J. Super.

427, 431 (App. Div.) (citing State v. Ellenstein, 121 N.J.L.

304, 317 (Sup. Ct. 1938)), certif. denied, 3 N.J. 378 (1949);

see also United States v. Schurr, 794 F.2d 903, 907 n.4 (3rd

Cir.   1986)    ("There      would    appear    to    be   no   reason   that       the

government could not satisfy its requisite showing under the

statute of limitations by means of an overt act not listed in

the indictment."); United States v. Norris, 753 F. Supp. 2d 492,




                                        20                                    A-3600-13T2
519    (E.D.       Pa.   2010)     (alteration         in     original)         ("It    is    well

settled that the government can prove overt acts not listed in

the    indictment,          so    long    as    there       is    no     prejudice      to     the

defendants         thereby.")         Pursuant       to     N.J.S.A.        2C:5-2(d),       overt

acts keep a conspiracy alive so long as committed "by a person

with whom [the person charged] conspired."

       With the exception of the 1938 Ellenstein decision, the

cases we have cited above regarding the specification of overt

acts    in    an    indictment       consider       the     issue      in      the   context   of

conviction         after    trial     rather      than      a    motion        for   dismissal;

nonetheless, they provide guidance.                       That a jury may convict on

overt acts omitted from an indictment lends authority to the

notion that the State can withstand a motion to dismiss where

other    overt       acts    may    be    proven       that      are     not    found    in    the

charging document itself.

       The    conspiracy         count    does      not     specifically         identify      the

2006 and 2012 threats as overt acts.                          Yet the grand jury found

the    conspiracy          extended      beyond      Gibson's          2012     threats,      thus

putting defendants on notice of the timeframe they were expected

to defend and the conduct.                     They were not prejudiced at that

stage    by    the       State's    failure       to      allege       the     overt    acts    in

question.          Additionally, a defendant facing an indictment which

he    considers       "not       sufficiently       specific        to      enable     [him]    to




                                               21                                       A-3600-13T2
prepare    a   defense[]"      has     the    right   to    move    for    a    bill    of

particulars pursuant to Rule 3:7-5.

      Thus the overt acts which made this a continuing conspiracy

which obscured the crimes they committed by helping Elisha in

2002 when Jon-Niece died include:                  the family meeting in 2002

and the direction to Iyonna to lie if asked about the child's

whereabouts,      Likisha's        2006    threats,   James's       discussion       with

Iyonna    in   2010    when    he    described      the    events,6    and      Gibson's

threats.

      James      did   not         initially      repudiate       or   abandon         the

conspiracy.      At first, he told investigators that Jon-Niece was

with her father, the explanation the parties agreed to ten years

before.    This knowing misstatement of fact was also intended to

continue the conspiracy of silence which did not actually end

until,    when    pressed      by    the     authorities,        Likisha   and      James

finally    admitted        their    involvement.      See     Cannel,      New    Jersey

Criminal Code Annotated, comment 12 on N.J.S.A. 2C:5-2 (2015-

2016) ("If the conspiracy is one that contemplates a continuity

of   purpose     and   a    continued      performance      of    acts,    it    can    be




6
  We include this conversation, no doubt troubling to Iyonna,
because it would have prompted her to continue to lie and keep
quiet about her family's complicity although not a direct
threat. See Taccetta, supra, 301 N.J. Super. at 253.



                                             22                                  A-3600-13T2
inferred to exist until there has been an affirmative showing

that it has terminated.").

       So long as the co-conspirators kept quiet, and successfully

kept Iyonna from making any disclosures, everyone's wrongdoing

was hidden.        Theirs was a continuing course of conduct, a true

conspiracy of silence that began in 2002, was reaffirmed over

the years, and did not stop until Likisha and James confessed.

Hence the last act occurred the year of the indictment.                                  The

five-year statute of limitations does not compel dismissal of

this   charge.         It     was   not     "manifestly     deficient       or   palpably

defective[.]"          Hogan, supra, 144 N.J. at 228-29 (quoting Perry,

supra, 124 N.J. at 168).

                                            VII.

       Likisha     separately         contends       that   the     State    failed       to

establish a prima facie case against her before the grand jury.

This   contention       lacks       merit    given    Likisha's     pivotal       role    in

orchestrating the conspiracy the officer described during his

testimony before the grand jury.

       Even if Likisha did not travel to New Jersey in 2002, she

participated in the family meeting afterwards when Iyonna was

told   to   lie    about       Jon-Niece's        whereabouts.        She    threatened

Iyonna in 2006 that she too would be jailed if she made any

disclosures       to    the    authorities.          Hence,   the    grand       jury    was




                                             23                                   A-3600-13T2
presented with enough circumstances to demonstrate a prima facie

case of conspiracy to obstruct.

                                    VIII.

    We affirm denial of the motion to dismiss the conspiracy

count   and    vacate   the   guilty   pleas   to   the   hindering   charge.

Other   than    the   conspiracy   count,   the     motion   to   dismiss   the

indictment as beyond the statute of limitations should have been

granted.      Defendants may withdraw from their guilty pleas should

they wish to do so, and the prosecution move forward solely on

the charges of conspiracy.         Should defendants elect to adhere to

the earlier agreement, they should be resentenced on the fourth-

degree conspiracy.

    Affirmed in part; reversed in part.




                                       24                             A-3600-13T2
