State v. Vega-Larregui
| Decision Date | 28 April 2021 |
| Docket Number | A-33 September Term 2020,085288 |
| Citation | 248 A.3d 1224,246 N.J. 94 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Omar VEGA-LARREGUI, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
John S. Furlong, West Trenton, argued the cause for appellant (Furlong and Krasny, attorneys; John S. Furlong, on the brief).
Randolph E. Mershon, III, Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Mercer County Prosecutor, attorney; Randolph E. Mershon, III, of counsel and on the brief).
Matthew S. Adams argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Fox Rothschild, attorneys; Matthew S. Adams, of counsel and on the brief, and Marissa Koblitz Kingman and Marc M. Yenicag, Morristown, on the brief).
Brian J. Neary, Hackensack, argued the cause for amicus curiae New Jersey State Bar Association (New Jersey State Bar Association, attorneys; Kimberly A. Yonta, President, of counsel, and Brian J. Neary and Christopher J. Keating, on the brief).
Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Carol M. Henderson, of counsel and on the brief).
The Constitution must operate not just in the best of times, but also in the worst of times. The framers of our Federal and State Constitutions established a structure of government and system of justice to endure for the ages -- even through crises and perils they could not have envisioned. The fundamental rights guaranteed by our Constitution have been stress-tested during a civil war, two world wars, an economic depression, and now a once-in-a century pandemic.
The question in this case is whether, in the throes of the current pandemic, we have been faithful to one of those rights provided in our State Constitution -- that "[n]o person shall be held to answer for a criminal offense, unless on ... indictment of a grand jury." N.J. Const. art. I, ¶ 8.
Beginning in March 2020, the public health threat of COVID-19 became a dire reality for the residents of New Jersey. As of March 9, 2020, there were eleven reported presumed positive cases of COVID-19 and no reported deaths in this state. Just two months later, as of May 5, there were over 130,000 positive cases that resulted in at least 8,244 deaths and mounting hospitalizations. The easy transmissibility of this deadly airborne coronavirus led the Governor to exercise emergency powers to limit public gatherings and the Supreme Court to issue public-safety Orders temporarily suspending jury trials and grand jury presentations. Requiring grand jurors, particularly older ones and those with underlying conditions, to appear in person in a forum where social distancing was not practicable would have recklessly put at risk the lives of those willing to perform their civic duty.
Without grand jury presentations, defendants subject to pretrial detention or pretrial release would have been denied their right codified in Article I, Paragraph 8 of the New Jersey Constitution. As a temporary emergency measure, the Supreme Court authorized grand jury presentations in a virtual format, first in a pilot program and later on a statewide basis.
Defendant Omar Vega-Larregui and various amici curiae organizations claim that the virtual grand jury format -- and therefore the lack of an in-person proceeding -- violates the right to a grand jury presentation and other constitutional provisions. They also claim that the Supreme Court does not have the constitutional authority to order temporary virtual grand jury presentations for the duration of the pandemic.
The arguments advanced by defendant and amici are not supported by the record in this case. Indeed, the defects attributed to the virtual format are almost wholly based on supposition and speculation. To be clear, this Court has the constitutional authority to make rules and procedures for all courts of this state, including the grand jury, which is an arm of the court. Part three of the Rules of Court extensively details the procedures governing grand juries. Those procedures were adopted pursuant to this Court's constitutional rulemaking and supervisory authority. We reject the contention that this Court's authorization of a virtual format for the selection of grand jurors and grand jury presentations during a lethal pandemic violates our State Constitution's separation of powers.
This Court has utilized technology to preserve, not to undermine, the constitutional right of defendants to a grand jury presentation. The virtual grand jury format -- a temporary measure to meet a public health emergency -- has not sacrificed any core principle animating the constitutional right to indictment by grand jury. The selection of grand jurors for a virtual setting is no different than for an in-person setting. Every grand juror who does not have the technical capacity to participate is provided the necessary equipment and training by the Judiciary. Defendant and amici have presented no evidence that those selected for grand jury service in a virtual setting do not represent a cross-section of the community.
The grand jurors in this case were drawn pre-pandemic, before the use of virtual grand juries, and sat for a period in person before transferring to a virtual format. Therefore, the general challenge to the virtual selection of grand jurors is not even applicable here.
The Judiciary has closely monitored the administration of the virtual format to ensure the integrity of the grand jury proceedings. We acknowledge that errors sometimes will occur in court proceedings, including in a grand jury presentation, whether in the in-person or virtual format. In individual cases where a defendant claims that an alleged error or defect undermined the fairness of the proceeding, a challenge may be mounted.
In the case before us, we do not see any error that undermined the integrity of the grand jury proceeding; nor do we see a basis for the dismissal of the indictment. Moreover, we do not find support for the facial constitutional challenge to the temporary use of the virtual grand jury during the current public health crisis. Accordingly, we hold that the presentation of defendant's case to a virtual grand jury did not violate his constitutional rights, and we remand to the trial court for further proceedings.
On March 9, 2020, Governor Philip Murphy declared both a Public Health Emergency and a State of Emergency in response to the COVID-19 pandemic -- a pandemic that, over the last year, has killed more than 22,500 residents of New Jersey and more than 560,000 persons in the United States.1 See Exec. Order No. 103 (March 9, 2020), 52 N.J.R. 549(a) (Apr. 6, 2020).2 COVID-19 is a highly contagious and deadly virus that is spread airborne from person to person, often by a cough, a sneeze, or even talking. It causes acute respiratory illnesses and has led to countless hospitalizations, patients hooked up to ventilators, and deaths -- and has left many survivors with long-term unresolved health issues.
New Jersey was at the epicenter of the pandemic in the early days of the outbreak. In the first two months after the issuance of the Governor's first executive order, more than 8,000 New Jersey residents had succumbed to COVID-19, and hospitals were inundated with patients infected by the virus. The Governor's initial executive orders required the closure of schools, day-care centers, and non-essential businesses, and curtailed large gatherings to slow the spread of the virus. See, e.g., Exec. Order 107 (Mar. 21, 2017).
In response to this unprecedented public health crisis caused by the person-to-person spread of the virus, this Court on March 12, 2020 canceled all new civil and criminal jury trials until further notice, and on March 17 canceled all grand jury sessions and the selection of new grand jury panels. In Omnibus Orders issued on March 27 and April 24, 2020, the Court continued the suspension of grand jury empanelment dates and grand jury sessions, and all new civil and criminal jury trials.
To keep the criminal and civil justice system functioning, by April 24, the Judiciary had turned to technology and conducted more than 12,000 virtual proceedings by video and telephone conferences, including motions, settlement discussions, arraignments, and detention hearings. After issuing the April 24 Order, the Court established the Working Group on Remote Grand Jury Operations (Working Group) "to examine whether, and if so, how, grand jury proceedings could resume in a virtual format while in-person gatherings are suspended because of COVID-19."3 Sup. Ct. of N.J., Notice and Order -- Supreme Court Authorization of Virtual Grand Jury Pilot Program, at 1-2 (May 14, 2020).
"The Working Group recommended that grand jury operations resume in certain counties in a virtual format in a manner that upholds the solemnity and secrecy of those proceedings and safeguards the rights of defendants, victims, jurors, and the public." Id. at 2. On May 14, 2020, the Court issued an Order authorizing a virtual grand jury pilot program to begin in Bergen and Mercer Counties.4 At the time, statewide, 1,400 defendants were detained pretrial in county jails and many defendants were on pretrial release, all waiting for their cases to be presented to a grand jury.
The Court's May 14 Order instructed that "[g]rand juries empaneled before March 16, 2020 and still within their term of service may reconvene in a virtual format." It further directed that the standard grand jury charge would be supplemented by a special charge and an oath of secrecy adapted to the virtual format. The supplemental charge and supplemental oath of secrecy, in relevant part, instruct grand jurors that they must (1) participate from a private location and shield their computer or tablet from the view of others and, unless alone, use...
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