State v. Dorn

• Decision Date: 25 April 2018
• Docket Number: 078399,A–54 September Term 2016
• Citation: 182 A.3d 938,233 N.J. 81
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. Todd DORN, Defendant–Appellant.
• Court: New Jersey Supreme Court

233 N.J. 81

182 A.3d 938

STATE of New Jersey, Plaintiff–Respondent,

v.Todd DORN, Defendant–Appellant.

A–54 September Term 2016

078399

Supreme Court of New Jersey.

Argued January 16, 2018

Decided April 25, 2018

Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Rochelle Watson, of counsel, and Kevin G. Byrnes, Designated Counsel, on the briefs).

Lila B. Leonard, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Lila B. Leonard, Trenton, of counsel and on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

We are called upon to determine whether defendant Todd Dorn's right to a grand jury presentment under the New Jersey Constitution was violated when the trial court permitted the State, on the eve of trial, to increase the charge in count two of defendant's indictment from a third-degree to a second-degree drug offense. We are also asked whether it was proper for the trial court to admit into evidence a copy of a map showing that defendant's home was within 500 feet of public housing, a public park, or public building.

Defendant was indicted for various drug-related offenses, including two counts of second-degree possession of a controlled dangerous substance (CDS) with the intent to distribute within 500 feet of public housing, a public park, or public building. The first count related to defendant's possession of heroin, a second-degree offense, and the second count related to defendant's possession of seventy-five grams of marijuana, listed in the indictment as a third-degree charge. The day before the trial began, the trial court, over defendant's objection, permitted the State to amend the second count in defendant's indictment from a third-degree to a second-degree charge, citing administrative error.

At trial, the State submitted—and the trial court admitted into evidence—a copy of a map showing that defendant's home was within 500 feet of public housing, a public park, or public building. Defendant objected to the admission of the map on the ground that it was a copy without a raised seal.

We conclude that the amendment to count two of defendant's indictment was a violation of defendant's right to grand jury presentment under the New Jersey Constitution, and we remand the conviction on count two to the trial court. We also find that defendant waived his right to object to the map's authentication.

I.

The facts contained in the appellate record reveal that Atlantic City Police Sergeant Richard Andrews was patrolling the area of 615 Green Street, a public housing complex where defendant lived. Andrews saw a Jeep parked in front of the home and a person, later identified as Jamie Guth, walking toward the front door. As Andrews drove past the Jeep in his marked police car, the driver of the Jeep appeared nervous. The driver then drove around the block and eventually returned to the Green Street home where Guth re-entered the Jeep. The Jeep drove off, and Andrews radioed other officers in the area who pulled the Jeep over.

When Guth exited the Jeep, an officer saw a brick of heroin¹ protruding from Guth's bra. Officers arrested Guth and, in addition to the heroin, found green glassine baggies stamped with the word "Thriller." Officers later interviewed Guth who stated that she had purchased the heroin from a man she knew as "Ty." Guth identified a photograph of defendant as Ty, the man from whom she had purchased the heroin.

Thereafter, police began surveillance of the Green Street home. During the surveillance, police saw defendant and a woman leave the home and drive away. They followed defendant and eventually executed a stop of defendant's vehicle and arrested defendant for drug distribution.

The arresting officers told defendant that the officers were in the process of applying for a search warrant for his home. According to the officer, defendant responded that "there was no need to do all that, that [defendant] just had a little in the house and he would take [him] to it." Defendant signed two consent-to-search forms, one permitting police to enter and search defendant's home and one permitting police to search defendant's vehicle. Police found nothing during the subsequent vehicle search, but they did find thirty-five glassine baggies in the house with "Thriller" stamped on them; the baggies contained "a white powdery substance believed to be heroin." Police also found 75.01 grams of marijuana² in defendant's home.

An Atlantic County Grand Jury indicted defendant for second-degree possession of heroin with the intent to distribute within 500 feet of public housing, a public park, or public building, contrary to N.J.S.A. 2C:35–7.1 (count one); third-degree possession of marijuana with the intent to distribute within 500 feet of public housing, a public park, or public building, contrary to N.J.S.A. 2C:35–7.1 (count two); third-degree distribution of CDS (heroin), contrary to N.J.S.A. 2C:35–5(a)(1) and (b)(3) (count three); third-degree possession of heroin with the intent to distribute, contrary to N.J.S.A. 2C:35–5(a)(1) and (b)(3) (count four); third-degree possession of one or more ounces of marijuana with the intent to distribute, contrary to N.J.S.A. 2C:35–5(a)(1) and (b)(11) (count five); and fourth-degree possession of more than fifty grams of marijuana, contrary to N.J.S.A. 2C:35–10(a)(3) (count six).³

Defendant rejected the State's pretrial plea offer of a five-year term of imprisonment with a two-and-a-half year period of parole ineligibility and instead chose to proceed to trial. According to defendant, he rejected the State's plea offer because it was his understanding that his maximum sentencing exposure was twenty years' imprisonment with a ten-year period of parole ineligibility.

One day before trial, the State moved under Rule 3:7–4 to amend count two of the indictment from third-degree possession of marijuana with the intent to distribute within 500 feet of public housing, a public park, or public building, to a second-degree offense. The prosecutor claimed that:

if you take it in conjunction with the grand jury transcripts which I have where they talk about the quantity, and additionally count [five] of the indictment where it is clear the marijuana is over one ounce, the defendant is placed on notice, it is a second-degree offense. It is an error in form, not an error in substance.

Defense counsel argued that elevating the charge to a second-degree offense was a substantive alteration, not merely an alteration in form.

The trial court granted the State's motion and amended count two of the indictment from a third-degree offense to a second-degree offense. The court stated,

They are not amending the substance of the charge at all. There is and I am satisfied a typographical error in that it is a second-degree, and while it would have been preferable to include in the body of that count the amount of marijuana. From reading count [five], it's clear that the grand jury had information that they believed to be credible, so that they returned count [five] which specifically indicates the quantity of over one ounce.

During the presentation of the State's case, the prosecutor offered into evidence, through the testimony of an officer involved in the investigation, a copy of a "zone map for drug[,] DUI[,] and weapon free zones and public housing." According to the officer's testimony, the map "designate[d] 500 square feet around a public park, a public housing facility, a public building," and "recreational sites." Defense counsel objected to the map's admission into evidence on the grounds that (1) the map was a copy and (2) the State should have provided a copy of the map with a raised seal. In response, the trial court stated, "I personally don't think it's necessary to bring in the city engineer. Having said that, since this is a copy, although I think copies are allowable, if you insist, I'm not going to object to that, I'll just say, okay, you got to do it." Defense counsel did not accept the trial court's offer to require the State to produce the city engineer and merely renewed his objection to the admission of the copy into evidence. The trial court found that the document was "self-authenticating" and admitted the map under N.J.R.E. 902.

At the close of the State's case-in-chief, defendant moved to dismiss counts one and two, charging defendant with possession of heroin and marijuana with the intent to distribute within 500 feet of public housing, a public park, or public building, arguing that the map should not have been admitted because it did not bear a raised seal. The court denied the motion, and the jury convicted defendant on all six counts in the indictment, including the amended second-degree offense in count two.

The Appellate Division affirmed defendant's conviction, finding that count five of the indictment put defendant on notice that he stood accused of possessing more than one ounce of marijuana, a second-degree offense, notwithstanding the "administrative or clerical" error by which count two was designated as a third-degree charge. Thus, the Appellate Division found no error in permitting the amendment to count two. The panel also rejected defendant's claim that the map's admission into evidence violated his right to confrontation, noting that the issue was raised for the first time on appeal and that defendant failed to demonstrate that the map's admission was "clearly capable of producing an unjust result."

The panel vacated defendant's sentence on count one and remanded the matter for resentencing and a determination as to whether the sentences under counts one and two should be concurrent or consecutive. On remand, the court sentenced defendant to ten years' imprisonment with a five-year term of parole ineligibility on count one and a concurrent ten-year term of imprisonment with a five-year ineligibility term for count two. The court...