                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-2032-15T2

STATE OF NEW JERSEY,

     Plaintiff-Respondent,            APPROVED FOR PUBLICATION

v.                                            June 12, 2017

                                        APPELLATE DIVISION
VICTORIA L. MAJEWSKI,

     Defendant-Appellant.
___________________________________________

         Submitted April 4, 2017 – Decided June 12, 2017

         Before Judges Messano, Espinosa and Suter.

         On appeal from the Superior Court of New
         Jersey, Law Division, Cape May County,
         Indictment No. 15-07-0573.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Daniel S. Rockoff, Assistant
         Deputy Public Defender, of counsel and on
         the brief).

         Robert L. Taylor, Cape May County Prosecutor,
         attorney   for    respondent   (Gretchen   A.
         Pickering, Assistant Prosecutor, of counsel
         and on the brief).

     The opinion of the court was delivered by

MESSANO, P.J.A.D.

     Following the denial of her motion to dismiss Cape May

County Indictment No. 15-07-0573, defendant Victoria L. Majewski

pled guilty to the single count of that indictment, charging her
with fourth-degree aggravated assault, throwing bodily fluids at

certain     law    enforcement   officers,         N.J.S.A.    2C:12-13    (the

Statute).     In    accordance   with       the   negotiated   plea   agreement

defendant reached with the State, the judge imposed a one-year

term of imprisonment, consecutive to the term of imprisonment

defendant was then serving.

       Defendant raises the following points on appeal:

            POINT I

            THE COURT ERRED BY DENYING MAJEWSKI'S MOTION
            TO DISMISS THE INDICTMENT.

            (A) The Indictment Was Palpably Defective
            Because The Prosecutor Misrepresented The
            Criminal Statute To The Grand Jury.1

            (B) The Indictment Was Palpably Defective
            Because The Prosecutor Did Not Tell The Jury
            About Exculpatory Evidence That Majewski
            Lacked The Required Purposeful Intent.

            POINT II

            THE COURT ERRED BY ACCEPTING MAJEWSKI'S
            GUILTY PLEA, WHICH WAS INSUFFICIENT AS TO
            BOTH THE MENTAL STATE AND THE BAD ACT. (Not
            Raised Below).

            (A) The Admissions Made By Majewski During
            Her Plea Did Not Satisfy The Mens Rea
            Requirements   Of   N.J.S.A.    2C:12-13, A
            Specific Intent Offense That Requires Proof
            Of Purpose For Every Element Alleged.

            (B) The Admissions Made By Majewski During
            Her Plea Did Not Satisfy The Actus Reus

1
    We have omitted the sub-sub-points of defendant's brief.



                                        2                              A-2032-15T2
           Alleged In The Indictment, Because The
           Prosecutor Failed To Instruct The Grand Jury
           On The Critical Statutory Clause.

We conclude the judge should have granted defendant's motion to

dismiss    the   indictment.         We    therefore   vacate   defendant's

judgment   of    conviction    and    dismiss    the   indictment   without

prejudice to the State's ability to present the matter to the

grand jury anew.

                                      I.

    The Statute provides:

           A person who throws a bodily fluid at a
           . . . law enforcement officer while in the
           performance of his duties or otherwise
           purposely subjects such employee to contact
           with a bodily fluid commits an aggravated
           assault.   If  the   victim   suffers   bodily
           injury, this shall be a crime of the third
           degree. Otherwise, this shall be a crime of
           the fourth degree. A term of imprisonment
           imposed   for   this    offense   shall    run
           consecutively to any term of imprisonment
           currently being served and to any other term
           imposed for another offense committed at the
           time of the assault.     Nothing herein shall
           be deemed to preclude, if the evidence so
           warrants, an indictment and conviction for a
           violation or attempted violation of chapter
           11 of Title 2C . . . or subsection b. of
           [N.J.S.A.] 2C:12-1 or any other provision of
           the criminal laws.

           [(Emphasis added).]

"'Bodily fluid' means saliva, blood, urine, feces, seminal fluid

or any other bodily fluid."      N.J.S.A. 2C:12-12.




                                      3                             A-2032-15T2
      In this case, the prosecutor provided the grand jurors with

preliminary      instructions   "on    some   new   law"2   by    reading     the

following:

            A person who throws a bodily fluid at a
            Department of Corrections employee, county
            corrections officer, juvenile corrections
            officer, State juvenile facility, juvenile
            detention staff member, probation officer,
            any   sheriff,   undersheriff   or  sheriff's
            officer or any municipal, county or State
            law   enforcement   officer   while  in   the
            performance of their duties is guilty of a
            crime of the fourth degree.

The   prosecutor     then   appropriately     defined   the      term   "bodily

fluid."

      The evidence before the grand jury was limited to the brief

testimony of an investigator with the Cape May County Sheriff's

office.     She testified that on June 14, 2015, defendant was an

inmate in the county jail.        "[D]uring a routine move" of another

inmate near defendant's cell, defendant "spit in the face" of

one   of   the   corrections    officers.     Another   officer     witnessed

this.      The    prosecutor    then   read   the    proposed     indictment,

specifically, that defendant "did throw bodily fluids at [the

corrections officer]        . . . [while the] said[] [o]fficer . . .

was acting in the performance of her duties while in uniform or

2
  The transcript of the grand jury proceedings starts in mid-
sentence. We assume the prosecutor had provided instructions to
the grand jurors on other criminal offenses before presenting
this case.



                                       4                                A-2032-15T2
exhibiting evidence of her authority[,] contrary to" N.J.S.A.

2C:12-13.     The actual indictment contains the language we have

quoted     without      reference     to    the     culpability        element    of    the

offense.

      Defendant      moved     to    dismiss       the     indictment,    arguing       the

Statute    required      the   State       prove    she     "intended     to     hit   [the

officer] with a bodily fluid."                   She noted the State's discovery

acknowledged her intention was to spit on another inmate, not

the officer.         Citing State ex rel S.B., 333 N.J. Super. 236

(App. Div. 2000), defendant argued the Statute did not permit a

theory of "transferred intent" to elevate spitting at someone,

even if it was an offense, into an aggravated assault simply

because the fluid unintentionally hit a corrections officer.

      Defendant      also      argued       the     judge       should    dismiss       the

indictment       because     the    State     failed       to   present    exculpatory

evidence    to    the    grand      jury.    Specifically,        the    investigating

sheriff's officer, who interviewed defendant's intended inmate

target and other inmates who witnessed the incident, concluded

in   the   administrative          disciplinary       charge      he    lodged    against

defendant    that    she     spat    at     the    other    inmate.       The    charging

report made no mention of the fluid striking the officer.                               The




                                             5                                    A-2032-15T2
disciplinary     investigation         resulted     in     defendant's       loss    of

privileges for five days.3

       In    opposing   the     motion,       the    State    acknowledged          the

Statute's      ambiguity      regarding       the   requisite     mental       state.

Nevertheless, it argued the Statute explicitly incorporated the

doctrine of transferred intent, because it criminalized not only

the throwing of a bodily fluid at an officer, but also conduct

that    "otherwise    purposely       subjected     [the   officer]     to    contact

with a bodily fluid."         The State also argued that S.B. supported

application of the doctrine of transferred intent.                    Lastly, the

State contended the statements of other inmates were not clearly

exculpatory evidence that negated defendant's guilt, see State

v. Hogan, 144 N.J. 216, 237 (1996), and it had no obligation to

charge the grand jurors "regarding a potential defense."

       After considering oral argument, the judge concluded the

investigative        report     and     statements         were   not        "clearly

exculpatory," and, therefore, the prosecutor did not violate the

Court's holding in Hogan by not producing them before the grand

jury.       However, the judge specifically "left for another day"

any decision regarding the culpable mental state required by the


3
  It is unclear from the record whether defendant was criminally
charged in a complaint prior to the prosecutor's presentation to
the grand jury.    No complaint is in the record and the grand
jury transcript makes no mention of one.



                                          6                                  A-2032-15T2
Statute, noting there was "some further analysis that need[ed]

to be considered . . . before the matter is listed for trial."

He denied defendant's motion.

    Three days later, defendant entered her guilty plea.                          Under

oath,   she   admitted     getting      into    an     altercation     with    another

inmate and spitting at that inmate.                  Defendant acknowledged her

"spit   landed      on"   the   corrections       officer,      who    was    standing

nearby holding the other inmate.

                                         II.

    Since     its    enactment     in    1997,       no   published    decision      has

construed     the     Statute.          "The     primary      goal     of    statutory

interpretation 'is to determine as best we can the intent of the

Legislature, and to give effect to that intent.'"                             State v.

Lenihan, 219 N.J. 251, 262 (2014) (quoting State v. Hudson, 209

N.J. 513, 529 (2012)).           "The intent of the Legislature 'begins

with the language of the statute, and the words chosen by the

Legislature    should     be    accorded       their      ordinary    and   accustomed

meaning.'"       Ibid. (quoting Hudson, supra, 209 N.J. at 529).

"Absent a clear indication from the Legislature that it intended

statutory language to have a special limiting definition, we

must presume that the language used carries its ordinary and

well-understood meaning."         Id. at 262-63.




                                          7                                    A-2032-15T2
      "[I]f a statute's plain language is ambiguous or subject to

multiple      interpretations,             the    Court      'may       consider     extrinsic

evidence including legislative history and committee reports.'"

State    v.   Frye,      217    N.J.       566,       575   (2014)      (quoting      State    v.

Marquez,      202   N.J.   485,        500      (2010)).        Further,        "[u]nder      the

'doctrine     of    lenity,'         if    an    analysis     of     statutory       language,

legislative history and other secondary sources fails to resolve

a statutory ambiguity with respect to a criminal statute, that

ambiguity is resolved in favor of the defendant."                                     State v.

McDonald, 211 N.J. 4, 18 (2012) (citing State v. Gelman, 195

N.J. 475, 482 (2008) (citing United States v. Bass, 404 U.S.

336, 348, 92 S. Ct. 515, 523, 30 L. Ed. 2d 488, 497 (1971))).

      One     ambiguity        in    the    plain       language        of    the   Statute   is

whether the Legislature intended the same culpable mental state

—   "purposely"      —   that        expressly        applies      to    "subject[ing]        [an

officer]      to    contact         with   a     bodily     fluid,"          also   applies    to

"throw[ing] a bodily fluid at" such an officer.                               N.J.S.A. 2C:12-

13.     The model jury charge recognizes this ambiguity, providing

in a footnote,

              There    is   a    question   of   statutory
              construction    as    to    the   applicable
              culpability element under N.J.S.A. 2C:12-13
              for one who "throws" a bodily fluid. The
              absence of an explicitly stated culpability
              requirement in the first portion of the
              statute could support an argument that
              knowledge applies under N.J.S.A. 2C:2-2c(3),



                                                  8                                    A-2032-15T2
         but a majority of the Model Criminal Jury
         Charge Committee has concluded that the
         subsequent statutory reference to purpose
         requires that purpose be applied to all
         material elements of the offense under
         N.J.S.A. 2C:2-2c(1).

         [Model Jury Charge (Criminal), "Aggravated
         Assault   (Throwing   Bodily   Fluid   at a
         Corrections Employee) (N.J.S.A. 2C:12-13),"
         n.1, (June 10, 2002) (the Model Charge).]

The Model Charge adopted the reasoning explained in its footnote

and provides in relevant part:

         In order for you to find the defendant
         guilty of this offense, the State must prove
         each of the following elements beyond a
         reasonable doubt:

         . . . . []that the defendant purposely threw
         a bodily fluid at (insert name of victim) or
         otherwise purposely subjected (insert name
         of victim) to contact with a bodily fluid;

              . . . .

              A person acts purposely with respect to
         the nature of (his/her) conduct or a result
         thereof if it is a person's conscious object
         to engage in conduct of that nature or to
         cause such a result.          A person acts
         purposely    with    respect    to   attendant
         circumstances if a person is aware of the
         existence of such circumstances or a person
         believes or hopes that they exist. One can
         be deemed to be acting purposely if one acts
         with   design,   with   a   purpose,  with   a
         particular object, if one really means to do
         what (he/she) does.

         [Id.   at   1-2  (emphasis   added)   (citing
         N.J.S.A. 2C:2-2(b)(1)).]




                                 9                        A-2032-15T2
      The footnote in the Model Charge relies upon the Criminal

Code's general default provision governing culpability, N.J.S.A.

2C:2-2(c).     "When the law defining an offense prescribes the

kind of culpability that is sufficient for the commission of an

offense,    without     distinguishing          among    the    material    elements

thereof, such provision shall apply to all the material elements

of   the   offense,    unless    a       contrary   purpose     plainly    appears."

N.J.S.A. 2C:2-2(c)(1).           On the other hand, when "no culpable

mental state is expressly designated in a statute defining an

offense,"    our    Criminal     Code      provides     the    statute    "should   be

construed     as      defining       a     crime"       that    requires     knowing

culpability.       N.J.S.A. 2C:2-2(c)(3).

      The scant legislative history of the Statute demonstrates

the Legislature intended to broadly criminalize certain conduct.

            This bill is intended to protect the health
            and well-being of corrections and parole
            officers by designating the act of throwing
            bodily fluids at such officers an aggravated
            assault. The need to impose tough sanctions
            for this vile and disgusting act takes on
            greater urgency in an era when such fluids
            can (sic) may serve as the medium for the
            transmission of life-threatening diseases.

            [Statement to A. 1598 (February 29, 1996).]

Indeed, the Statute defines two different types of aggravated

assault:     1) throwing bodily fluid at an officer, even if there

is no contact; and 2) causing, in some other way, contact of




                                           10                                A-2032-15T2
bodily fluid with the officer.              However, nothing indicates the

Legislature    intended      two    different    levels          of    culpability       —

knowing conduct on the one hand and purposeful conduct on the

other — and chose only to include purposeful conduct in the

Statute.   "We decline to read into the statute language that the

Legislature 'could have included . . . but did not.'" State v.

Eldakroury, 439 N.J. Super. 304, 310 (App. Div.) (quoting Jersey

Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 596

(2013)), certif. denied, 222 N.J. 16 (2015).

    We     conclude    the    Statute       requires       the        State    prove     a

defendant acted purposely, whether throwing bodily fluid at an

officer or otherwise subjecting that officer to contact with

bodily   fluid.       This   interpretation          is    consistent         with     the

general rules of construction in our Criminal Code, with which

we presume the Legislature was entirely familiar.                        See State v.

Nance,   ___   N.J.   ___,    ___   (2017)    (slip        op.    at    18)    ("[W]hen

ascertaining      legislative       intent,     we        can    infer        that     the

Legislature was 'familiar with its own enactments, with judicial

declarations relating to them, and . . . passed or preserved

cognate laws with the intention that they be construed to serve

a useful and consistent purpose.'" (quoting State v. Greeley,

178 N.J. 38, 46 (2003))).




                                       11                                       A-2032-15T2
                                          III.

      As it did in the Law Division, the State argues that even

if   the    Statute   requires    purposeful      conduct,   the       doctrine   of

transferred intent applies.             In other words, it did not matter

whether defendant intended to spit at the officer since she

clearly intended to spit at her fellow inmate who was nearby,

and defendant's bodily fluid came in contact with the officer as

a result.     We disagree.

      The    second   part   of   the    Statute   proscribes      a    particular

result, that is, the actor purposely subjected the officer to

contact with a bodily fluid.            N.J.S.A. 2C:2-3(b) provides:

             When the offense requires that the defendant
             purposely or knowingly cause a particular
             result, the actual result must be within the
             design or contemplation, as the case may be,
             of the actor, or, if not, the actual result
             must involve the same kind of injury or harm
             as that designed or contemplated and not be
             too remote, accidental in its occurrence, or
             dependent on another's volitional act to
             have a just bearing on the actor's liability
             or on the gravity of his offense.

"Where an offense requires purpose, the result must be the kind

of result designed by the actor[.]"              Cannel, New Jersey Criminal

Code Annotated, comment 4 on N.J.S.A. 2C:2-3 (2016-17).

      The Criminal Code also provides that an actor is "not . . .

relieved of responsibility for causing a result if the only

difference between what actually occurred and what was designed




                                         12                                A-2032-15T2
. . . is that a different person . . . was injured or affected

or   that    a    less       serious    or       less    extensive       injury      or     harm

occurred."             N.J.S.A.        2C:2-3(d).            "Th[is]          principle      of

'transferred intent' makes an actor criminally responsible for

the result of his conduct, even though the person injured is not

his intended victim."              S.B., supra, 333 N.J. Super. at 243.

      In    S.B.,       we    held     the       juvenile    was        not    absolved      of

committing        an   assault       upon     his      teacher,     simply       because     he

intended to kick another student and struck his teacher instead.

Ibid.       However,         because    the       juvenile       did    not    possess      the

specific intent to kick his teacher, he could not be adjudicated

delinquent        of     aggravated          assault        under       N.J.S.A.       2C:12-

1(b)(5)(d),       which       elevates       a    simple    assault       committed        upon

certain     educational        officials          to    aggravated      assault.           S.B.,

supra, 333 N.J. Super. at 242-43.                        We rejected application of

transferred       intent      to    elevate       the    offense       because      "the   only

intent     that    [was]      transferred         [was]    the    intent       to   commit     a

simple assault."          Id. at 244-45; see also Cannel, supra, comment

6 on N.J.S.A. 2C:2-3 ("[I]f the degree of crime is dependent on

the identity of the victim, . . . the identity of the intended,

not actual, victim is decisive.").

      We    need       not     decide        hypothetically            whether      purposely

spitting on someone, "throwing" bodily fluids "at" someone, or




                                                 13                                   A-2032-15T2
otherwise purposely causing a person to come into contact with a

bodily fluid are offenses under our Criminal Code.                                For our

purposes, it suffices to say that whatever that offense might

be, the doctrine of transferred intent does not apply to elevate

that conduct to an aggravated assault under N.J.S.A. 2C:12-13.

A defendant does not violate the Statute unless his conduct was

purposeful and the result was within his design.

                                              IV.

      Applying these principles, we consider the judge's decision

on defendant's motion to dismiss the indictment.

      "The trial court's decision denying defendant's motion to

dismiss her indictment is reviewed for abuse of discretion."

State v. Saavedra, 222 N.J. 39, 55 (2015) (citing Hogan, supra,

144   N.J.      at       229).     "[B]ecause        grand   jury    proceedings        are

entitled      to     a    presumption    of     validity,"       defendant    bears     the

burden     of      demonstrating        the      prosecutor's       conduct       requires

dismissal of the indictment.                  State v. Francis, 191 N.J. 571,

587 (2007) (citing State v. Engel, 249 N.J. Super. 336, 359

(App. Div.), certif. denied, 130 N.J. 393 (1991)).

      "A   prosecutor            must   charge      the   grand     jury    'as    to   the

elements of specific offenses.'"                      Eldakroury, supra, 439 N.J.

Super. at       309 (quoting State v. Triestman, 416 N.J. Super. 195,

205   (App.     Div.       2010)).      "[A]n       indictment    will     fail   where    a




                                              14                                  A-2032-15T2
prosecutor's instructions to the grand jury were misleading or

an    incorrect     statement        of    law."           Ibid.   (quoting       Triestman,

supra, 416 N.J. Super. at 205).                      "However . . . nothing in the

New     Jersey      Constitution          demands          'a    verbatim       reading        of

applicable statutes or a recitation of all legal elements of

each charge . . . .'"              State v. Hogan, 336 N.J. Super. 319, 340

(App. Div.) (quoting State v. Laws, 262 N.J. Super. 551, 562

(App.    Div.),     certif.        denied,      134    N.J.       475    (1993)),      certif.

denied, 167 N.J. 635 (2001).

       In    Treistman,      supra,       416       N.J.    Super.      at    205,     we    also

restated the prosecutor's obligation, in some circumstances, to

charge the grand jurors as to specific exculpatory defenses.                                  As

Judge       Baime       observed     nearly          twenty-five         years        ago,     "a

prosecutor's obligation to instruct the grand jury on possible

defenses      is    a    corollary        to    his        responsibility        to    present

exculpatory evidence."              Hogan, supra, 336 N.J. Super. at 341.

"[I]t is only when the facts known to the prosecutor clearly

indicate      or    clearly        establish          the       appropriateness         of    an

instruction that the duty of the prosecution arises."                                   Id. at

343-44 (citing State v. Choice, 98 N.J. 295, 299 (1985)).                                   "[A]n

indictment should not be dismissed unless the prosecutor's error

was    clearly      capable    of     producing            an   unjust       result.         This

standard can be satisfied by showing that the grand jury would




                                               15                                      A-2032-15T2
have reached a different result but for the prosecutor's error."

Id. at 344.

    Here, as in Eldakroury, we deal with the adequacy of the

prosecutor's instructions to the grand jury.                     The defendant in

Eldakroury      was     "accused    of    operating    a     sexually       oriented

business . . . within 1000 feet of a residential zone," in

violation of N.J.S.A. 2C:34-7(a).             Eldakroury, supra, 439 N.J.

Super. at 306.          The prosecutor instructed the grand jury that

the State needed to prove the defendant knowingly operated the

business, but did not have to prove he ran the business knowing

it was located within the residential zone.                      Id. at 307.       We

affirmed     the      trial   court's     dismissal     of       the    indictment,

concluding "the State's instruction to the jury was 'blatantly

wrong'   and,      in   effect,    relieved   the     State      from    having    to

establish defendant's mens rea as to a material element of the

offense."     Id. at 310.

    In this case, the prosecutor similarly failed to define a

material element of the crime for the grand jurors, i.e., that

defendant purposely spat at the officer or otherwise purposely

subjected     the       officer    to    contact    with     a     bodily    fluid.

Certainly, the evidence produced before the grand jurors failed

to demonstrate defendant acted "with purpose" as to the officer.

Given the little evidence actually produced before the grand




                                         16                                 A-2032-15T2
jurors,     we    must      conclude       omitting        instructions         on     the

culpability      element     of   the      crime     "was       clearly    capable      of

producing an unjust result."               Hogan, supra, 336 N.J. Super. at

344.

       We note further that even if the State provides appropriate

instructions to the grand jury, it must produce "some evidence

establishing each element of the crime to make out a prima facie

case."      Saavedra,      supra,    222    N.J.      at   57    (quoting      State    v.

Morrison, 188 N.J. 2, 12 (2006)).                Without full knowledge of the

State's case, we will not speculate whether it can establish the

essential elements of N.J.S.A. 2C:12-13 before the grand jury.

                                                V.

       We conclude the judge mistakenly exercised his discretion

by not dismissing the indictment because the State failed to

properly    charge    the    grand   jury       on   the    elements      of   N.J.S.A.

2C:12-13.        We   therefore         reverse       defendant's         judgment      of

conviction,      vacate     the     sentence         imposed      and     dismiss      the

indictment without prejudice to the State's ability to represent

the matter to the grand jury.4

       In order to provide guidance should the State seek to re-

indict defendant, we consider whether the inmate statements and


4
  As a result, we need not consider the arguments raised in
defendant's second point on appeal.



                                           17                                   A-2032-15T2
the     disciplinary       charge      lodged       against    defendant       must    be

presented to the grand jurors.                The prosecutor's duty to present

certain evidence to the grand jury "arises only if the evidence

satisfies two requirements:              it must directly negate guilt and

must also be clearly exculpatory."                    Hogan, supra, 144 N.J. at

237.

       The    evidence     in    the   appellate      record    "directly      negates"

defendant's guilt, because it "squarely refutes an element of

the     crime    in     question,"     i.e.,     purposeful      conduct.            Ibid.

(emphasis       omitted).          However,      determining       whether       it    is

"'clearly exculpatory' requires an evaluation of the quality and

reliability       of    the     evidence.     The    exculpatory       value    of    the

evidence should be analyzed in the context of the nature and

source of the evidence, and the strength of the State's case."

Ibid.         Contradictory       eyewitness        testimony,    or    self-serving

statements of denial are not "'clearly exculpatory,' and need

not be revealed to the grand jury."                 Id. at 238.

       The      three     statements     of      defendant's      fellow       inmates,

although consistently asserting defendant intended to spit at

one of them and not the officer, are internally inconsistent as

to    other     details    of    the   incident.         We    recognize       that   the

discovery contained in the appellate record may not be the full

extent of the State's evidence against defendant, and we have no




                                            18                                  A-2032-15T2
knowledge of whether the State possesses additional evidence.

It   follows,   we    cannot   assess   from    this   limited   record   any

potential bias on the part of these witnesses or the overall

"strength of the State's case."         Id. at 237.

      We therefore act, as the Court advised, with "substantial

caution" in this regard, id. at 238, and leave final resolution

of the issue to the Law Division.              Should the State represent

the matter and secure a new indictment, and should defendant

again move to dismiss on this ground, the court will be in the

best position to apply Hogan's standards to the record as it

then exists.

      Reversed.      We vacate defendant's conviction and dismiss the

indictment without prejudice to the State's ability to represent

the matter to a properly instructed grand jury.




                                    19                              A-2032-15T2
