Opinion
DOCKET NO. A-3875-13T1
02-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GEORGE FERMISCO, Defendant-Appellant.
Jonathan H. Lomurro argued the cause for appellant (Lomurro, Munson, Comer, Brown & Schottland, LLC, attorneys; Mr. Lomurro, of counsel and on the brief). Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Susan L. Berkow, Special Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-10-1490. Jonathan H. Lomurro argued the cause for appellant (Lomurro, Munson, Comer, Brown & Schottland, LLC, attorneys; Mr. Lomurro, of counsel and on the brief). Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Susan L. Berkow, Special Assistant Prosecutor, on the brief). PER CURIAM
Defendant George Fermisco was originally indicted in Middlesex County Indictment No. 10-05-0779 (the first indictment), which charged him and twenty-six others with various conspiracies involving the possession and distribution of controlled dangerous substances (CDS), and substantive CDS and weapons offenses. That indictment was dismissed by the State, and defendant and six co-defendants were re-indicted by a different grand jury in a superseding indictment that is the subject of this appeal (Indictment No. 11-10-01490).
Defendant pleaded guilty to second-degree conspiracy to possess a CDS with intent to distribute, N.J.S.A. 2C:5-2, 2C:35-5a(1), and 2C:35-5b(2). Pursuant to the plea agreement, the remaining count of the indictment against defendant was dismissed, and he was sentenced to a five-year term of imprisonment. Defendant raises the following points for our consideration on appeal:
POINT ONE
THE INDICTMENT SHOULD BE DISMISSED BECAUSE THE STATE'S PRESENTATION TO THE GRAND JURY WAS IMPROPER, PREJUDICIAL, AND UNFAIR.
A. [STATE V. TRIESTMAN, 416 N.J. SUPER. 195, 202 (APP. DIV. 2010)] WAS MISAPPLIED TO THE FACTS OF THE PRESENT MATTER.
B. THE STATE TRIVIALIZED AND DESECRATED THE GRAND JURY PROCESS, CIRCUMVENTED THE PROTECTIONS BUILT WITHIN OUR SYSTEM OF JUSTICE, AND CONFUSED THE JURORS REGARDING THE APPLICABLE LEGAL STANDARDS.
POINT TWOWe have considered these arguments in light of the record and applicable legal standards. We affirm.
THE CHARGES AGAINST DEFENDANT SHOULD BE DISMISSED BECAUSE HE WAS DENIED HIS RIGHT TO A SPEEDY TRIAL.
We have omitted the sub-points of point two in defendant's brief.
Although not included in the appellate record, we requested copies of the transcript of defendant's guilty plea to determine whether the plea was entered conditionally, thereby preserving defendant's right to raise issues regarding the denial of certain pre-trial motions. R. 3:9-3(f). Although our examination of the transcript demonstrates a lack of strict compliance with the requirements of the Rule, the State has not asserted that defendant's guilty pleas were unconditional, thereby effectuating a waiver of his ability to raise these issues on appeal. See, e.g., State v. Knight, 183 N.J. 449, 471 (2005). We therefore consider the issues.
I.
The first indictment was returned on May 26, 2010, and it is clear from the record that the sheer number of co-defendants caused some delay. It suffices to say that defendant's attempts to obtain complete discovery were arduous, with repeated status conferences and correspondence dealing with the issue. On March 11, 2011, the judge ordered the State to turn over certain discovery. These included log sheets and audio recordings from wiretaps, which the judge required the State to produce before conducting a Driver hearing as requested by defendant and several co-defendants. In May 2011, defendant and others moved to dismiss the indictment for failure to provide complete discovery. The judge entered an order on June 24 compelling the State to provide certain other discovery.
State v. Driver, 38 N.J. 255 (1962). Driver "set forth the standard for the admissibility of a recording in a criminal trial." State v. Nantambu, 221 N.J. 390, 403 (2015).
The State concedes without explanation that in July 2011, it recognized a "deficiency in the grand jury presentment," and, on August 19, it moved to dismiss the first indictment. That motion was granted. In the interim, on March 30, 2011, co-defendant David Cruz, the person alleged to have been the center point of the several different conspiracies charged in the first indictment, pleaded guilty. In doing so, he specifically admitted to conspiring with defendant to sell CDS.
Defendant agrees with this characterization. We do not have the transcript from the grand jury proceedings that led to the first indictment, and it is otherwise unclear what this "deficiency" was.
Also, on July 6, 2011, another grand jury convened and was provided with an initial orientation by the prosecutor, including instructions on the law regarding the elements of various CDS offenses. During that initial session, the State produced "Lieutenant Scott," apparently the commander of the prosecutor's office narcotics squad. Scott provided an extensive, informal lesson on the various types of narcotics prevalent in Middlesex County, as well as other background information in the nature of expert testimony. Scott fielded questions from the grand jurors.
Scott's first name does not appear in the record. He was not placed under oath.
On September 28, 2011, the State presented evidence to the grand jury seeking a superseding indictment against defendant. The sole witness was Steven Weitz, a sergeant with the prosecutor's office narcotics task force who was assigned to the Drug Enforcement Agency (DEA) task force during times relevant to the investigation. Weitz testified as to evidence implicating the seven individuals ultimately charged in Indictment No. 11-10-01490, and their involvement with Cruz.
Before submitting the case to the grand jurors for a vote, the prosecutor stated that he would not provide further instructions on the law regarding possession, since the panel had received those on July 6. Nevertheless, he proceeded to instruct the grand jurors on the law of conspiracy and distribution of, or possession with intent to distribute, CDS. The prosecutor asked if the grand jurors would like to be re-charged on the law, but there was no response from the panel. On October 5, 2011, Indictment No. 11-10-01490 was returned, charging defendant with the same two offenses as contained in the first indictment, second-degree conspiracy with Cruz and first-degree distribution of cocaine in a quantity of five ounces or more, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1).
On February 15, 2012, defendant moved to dismiss the indictment based upon alleged prosecutorial misconduct during the July 6, 2011 orientation session and deficiencies in the grand jury presentation of September 28, 2011. After hearing oral argument on May 3, the judge issued a written decision and entered a conforming order denying the motion on June 8. Defendant moved for a severance, which was granted by order dated June 19.
Defendant then sought leave to appeal the denial of his motion to dismiss, which this court denied on July 27, 2012. Defendant's petition for certification was denied by the Supreme Court on October 5.
On December 14, 2012, the court wrote to all counsel setting a date in April for "the motion regarding the remaining minimization issue" and required the State to turn over minimization instructions "as soon as possible." In separate correspondence to defense counsel and the prosecutor, the judge ordered the State to "inform defense counsel of all the tapes it intends to play at trial no later than Friday, January 4, 2013." The Driver hearing was set for February 22, 2013. On January 17, the prosecutor provided transcripts of phone calls and text messages that the State would seek to introduce as evidence.
"Minimization instructions" are those procedures utilized by the State during the pendency of the wiretap to comply with the minimization requirements of N.J.S.A. 2A:156A-12.
The judge held a Driver hearing solely as to defendant on April 10, May 2 and May 14, 2013. Weitz was the only witness called by the State. During cross-examination on May 2, Weitz could not identify who was monitoring a specific intercept, but asserted the information would be available from the DEA, which employed a "Voice Box" technology to record the information. Defense counsel stated that he had made a request in discovery for all this information, yet it had not been furnished. At the end of the hearing, the judge orally ruled that the intercepts were audible and "are all appropriate and . . . admissible." He set a September trial date.
Defense counsel noted his objection to executing a June 3, 2013 pre-trial memorandum because discovery was incomplete, but he requested, and the judge granted, a brief adjournment to further discuss a potential plea agreement. Two days later, with no plea agreement having been reached, the judge reaffirmed the September 16, 2013 trial date and denied defendant's pending speedy trial motion.
Defendant's reference in his brief to this motion actually cites to another speedy trial motion filed in August 2013. We gather, however, from the judge's comments, that indeed a speedy trial motion was pending.
Discovery issues continued to plague the proceedings. In July, the State forwarded the names of its anticipated expert witnesses, as well as numerous, additional intercepts it intended to use at trial. In August, the State sought an order to secure a voice exemplar from defendant. By the time a conference was held on August 12 to resolve all outstanding discovery, defendant had again filed motions seeking to dismiss based upon the failure to produce discovery and the lack of a speedy trial. The judge denied the motions.
Defendant again sought leave to appeal. Motion practice before this court ensued when defendant moved to strike the State's letter-brief in opposition. The September 16, 2013 trial date was adjourned at defendant's request, and, on September 30, we denied defendant's motion for leave to appeal, preserving his "claim that he has been denied his right to a speedy trial . . . for a future plenary appeal . . . ." We also denied defendant's motion to strike.
In November, the State supplied the identity of the DEA agent who would testify regarding the operation of the "Voice Box." The judge set a December date to, in essence, re-open the Driver hearing as to the additional intercepts and the information obtained from the DEA. He noted that defense counsel's illness required the trial date be adjourned to January 2014.
On November 25, 2013, defendant served a three-page letter request upon the prosecutor and the DEA for additional discovery, all of which involved information regarding the wiretap and the DEA's operation of the "Voice Box," including specifications for the device and its software. The DEA refused to furnish any information.
On December 12, 2013, the return date for the continued Driver hearing, defense counsel advised that defendant reviewed the additional intercepts, and "there is no audibility issue." Counsel noted the State's transcripts of the intercepts were "largely accurate." However, defense counsel also explained that, based upon a conversation with the DEA, the prosecutor could obtain the information from the DEA if the State made the request. Apparently, the State produced two witnesses who testified at the continued Driver hearing, but we have not been provided with any transcript of those proceedings.
On December 24, 2013, defendant entered his guilty plea.
II.
Defendant asserts it was error to deny his motion to dismiss the indictment based upon improprieties before the grand jury. Defendant first argues that the delay between the July 2011 orientation, where instructions were provided on various CDS offenses, and the actual presentation of the case in September 2011, was too long, and the instructions provided at both sessions were confusing, or otherwise, inaccurate.
"The trial court's decision denying defendant's motion to dismiss [his] indictment is reviewed for abuse of discretion." State v. Saavedra, 222 N.J. 39, 55 (2015) (citing State v. Hogan, 144 N.J. 216, 229 (1996)). "[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).
"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.) (quoting Triestman, supra, 416 N.J. Super. at 205), certif. denied, 222 N.J. 16 (2015). "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). "Incomplete or imprecise grand-jury instructions do not necessarily warrant dismissal of an indictment; rather, the instructions must be 'blatantly wrong.'" Triestman, supra, 416 N.J. Super. at 205 (quoting Hogan, supra, 336 N.J. Super. at 344). "[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 have reached a different result but for the prosecutor's error." Hogan, supra, 336 N.J. Super. at 344.
Defendant relies extensively on Triestman, arguing that the prosecutors here supplied incomplete or incorrect instructions, which, together with the timespan between the July orientation and the September 2011 vote, meant the grand jurors were misled or confused about the law when they returned the indictment. We reject this argument.
In Triestman, a panel of our colleagues concluded that the prosecutor omitted certain information regarding criminal sexual contact in the initial instructions provided at orientation, and the actual instructions provided at the time of the vote failed to explicitly explain which provision of the statute was under consideration. Triestman, supra, 416 N.J. Super. at 206-07. Additionally, the panel noted that "[t]he misleading effect of this charge was compounded by the passage of more than two months before the prosecutor presented this case." Id. at 207. The panel referred the matter to the Criminal Practice Committee for further consideration. Ibid. n.4.
We are unaware of any activity occasioned by the panel's referral. --------
We are skeptical that the minor deviations cited in Triestman required dismissal of the indictment. As the above cases demonstrate, it is not necessary that the prosecutor reiterate complete instructions on the law before every vote. The reality is that a grand jury, once empaneled, hears cases on a regular basis. The grand jury in this case met every week. We cannot say with certainty whether any particular instructions were reiterated during the relevant time frame, but it is likely they were.
More importantly, the criminal offenses considered by the grand jury in this case — conspiracy to distribute, and possession with intent to distribute, CDS — were not complicated. In Triestman, the grand jurors were considering the charge of criminal sexual contact, a crime that the Code defines in a variety of factual circumstances, and only by reference to the definitions included in the offense of sexual assault. See N.J.S.A. 2C:14-3 (criminal sexual contact); N.J.S.A. 2C:14-2 (sexual assault). As the Triestman panel noted, the prosecutor in that case made generic references to "sexual assault," failing to specify which particular subsection of the statute provided a basis for indicting the defendant for criminal sexual contact. Id. at 207. In this case, unlike Triestman, the average grand juror could fully recall and understand the elements of the crimes he or she was considering, particularly since the prosecutor provided specific instructions on those particular crimes before the vote.
Lastly, the errors or omissions defendant points to in the orientation instructions or the specific instructions provided in September 2011 were insignificant. As noted above only "blatantly wrong" mistakes that could "clearly [be] capable of producing an unjust result" compel the granting of a motion to dismiss the indictment based on faulty legal instructions. Hogan, supra, 336 N.J. Super. at 344. Defendant has failed to meet that burden.
Secondly, defendant contends that prosecutorial misconduct during the July 2011 orientation provides an independent basis for dismissal. An indictment may be dismissed if the prosecutor's misconduct "is extreme and clearly infringes upon the [grand] jury's decision-making function[.]" State v. Murphy, 110 N.J. 20, 35 (1988) (alteration in original) (emphasis added). Only where the violation substantially influenced the grand jury's decision to indict, or there is grave doubt that the determination ultimately reached was arrived at fairly and impartially, will an indictment be dismissed. State v. Engel, 249 N.J. Super. 336, 360 (App. Div.), certif. denied, 130 N.J. 393 (1991). Simply put, the prosecutor may not subvert the grand jury process. Ibid.; see, e.g., State v. Schamberg, 146 N.J. Super. 559, 564 (App. Div.) (considering prosecutor's statement made to witness testifying before the grand jury that prosecutor believed the witness had just committed perjury), certif. denied, 75 N.J. 10 (1977); State v. Hart, 139 N.J. Super. 565, 568-69 (App. Div. 1976) (reviewing prosecutor's statement of personal belief that grand jurors had erred in failing to indict defendant, resulting in reconsideration and subsequent indictment).
Here, defendant points to comments made by the prosecutor during the July 6, 2011 orientation session that "trivialized and desecrated the [g]rand [j]ury process," and denied him the protections inherent in that process. See In re Loigman, 183 N.J. 133, 138-39 (2005) ("The grand jury has fulfilled its 'historic purpose [by] standing between the defendant and the power of the State, protecting the defendant from unfounded prosecutions.'") (quoting State v. Fortin, 178 N.J. 540, 638 (2004)).
During the July 6, 2011 orientation, the prosecutor began by explaining the role of the grand jury, and how it differed from a petit jury. She described the "levels of screening" within the prosecutor's office, saying, "I don't want you guys to think that there haven't been 107 hands on the files before you hear about them." In explaining the different burden of proof required at trial, she said, "you guys are just here basically to decide whether or not there's enough evidence that this person committed a crime. You know, enough evidence to basically inconvenience him enough to have to come to court and answer to it." Anticipating the afternoon's narcotics orientation, the prosecutor told the grand jurors it would be presented by one of her office's "experienced narcotics officers . . . who have done major buys, like kilos and kilos of cocaine and really have great experience." She explained it would be "fun."
The prosecutor's unique role before the grand jury compels certain professional obligations. Francis, supra, 191 N.J. at 586-87. We do not condone, therefore, these flippant and irreverent remarks. We cannot conclude, however, that defendant suffered prejudice as a result, or that the judge mistakenly exercised his discretion by denying defendant's motion to dismiss on this ground. Any harmful effects from the prosecutor's comments in July were ameliorated by the presentation in September, when the grand jury specifically considered the evidence against defendant on the two charges for which he was indicted.
Moreover, the errors that defendant points to in the prosecutor's legal instructions during the orientation session were minor, as were any errors in the instructions provided in September. We find no basis to reverse.
III.
Defendant argues the judge erred in denying his motions to dismiss the indictment for violation of his right to a speedy trial. Recently, in State v. Cahill, 213 N.J. 253, 258 (2013), the Court reiterated "that the four-factor balancing analysis of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), remains the governing standard to evaluate claims of a denial of the federal and state constitutional right to a speedy trial[.]" Those four factors are: "length of the delay, reason for the delay, assertion of the right by a defendant, and prejudice to the defendant." Id. at 264 (citing Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). "None of the Barker factors is determinative, and the absence of one or some of the factors is not conclusive of the ultimate determination of whether the right has been violated." Id. at 267 (citing Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118).
"[T]he factors are interrelated, and each must be considered in light of the relevant circumstances of each particular case." State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009) (citing Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118). Thus, "[i]n reviewing the Law Division's findings, we reverse only if the court's determination is clearly erroneous." Ibid. (citing State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977)).
We agree with defendant that the "length of delay" factor is calculated from the filing of the initial charges, not the return of the superseding indictment. See State v. Szima, 7 0 N.J. 196, 199-200 (1976) ("[I]t is clear that the protection of the Sixth Amendment attaches upon arrest on a criminal charge and need not await indictment or information."). Nevertheless, the nature of the prosecution is a necessary component of the calculus in evaluating the length of any delay. See Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117 ("To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.").
Here, the investigation leading to defendant's arrest and indictment was complicated and involved multiple jurisdictions and law enforcement agencies, including the federal government. More than two dozen people were charged in the first indictment. The judge addressed these factors when considering the "[c]losely related" second Barker factor, i.e., the reasons for the delay. Ibid. The judge found the case was complex "involv[ing] wiretaps, conversations, various municipalities, prosecutors' investigators." The judge specifically found that there was no delay attributable to the State "for [the] purpose of some strategic advantage."
There can be no question that defendant promptly asserted his right to a speedy trial, did so consistently and attempted to vindicate that right through interlocutory appellate review. Certainly, however, that strategic choice exacerbated the delay. Nevertheless, on balance, the third Barker factor weighs heavily in defendant's favor. However, in addressing the fourth factor, the judge found minimal personal prejudice and no actual prejudice to defendant as a result of the delays.
In sum, the judge fairly considered the Barker factors and fairly applied the balancing test required. We find no reason to disturb the judge's conclusion that defendant's right to a speedy trial had not been violated so as to warrant dismissal of the indictment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION