cdTOCtest

not successfully make an out-of-time challenge to the
indictment despite the fact that a coconspirator
successfully challenged his indictment arising from the
same grand jury proceedings. Additionally, the Court
determined that in the present matter the administrative
error by the clerk of the grand jury in failing to tally the
individual votes of the grand jurors “cannot be tolerated,”
but because no fundamental injustice occurred declined
to dismiss the indictment.

In State v. Lynch, 79 N.J. 327, 334-37, 340-43
(1979), the Court held that the trial court erred in
dismissing the indictment and granting a judgment of
acquittal at the conclusion of the opening statements.
The court explained that trial courts must be reluctant to
dismiss based on the opening statements of counsel,
especially in view of the double jeopardy factor in
criminal cases. Here, the trial court’s dismissal reflected
an adjudication on the merits, and barred any further
prosecution of the case. On the other hand, in State v.
Laganella, 144 N.J. Super. 268, 282-90 (App. Div.
1976), appeal dismissed, 74 N.J. 256 (1976), the trial
court erroneously dismissed the criminal indictment as a
sanction for the State’s alleged failure to adhere to
principles of fairness in prosecuting that indictment.
Double jeopardy considerations did not bar an appeal by
the State, or a reversal and remand for trial.

An indictment which was based chiefly on the
testimony of a witness who subsequently admitted to
perjury remains valid and should not be dismissed if
returned by a legally constituted, unbiased grand jury.
Bracy v. United States, 435 U.S. 1301, 1301-03 (1978).

In State v. Peterkin, 226 N.J. Super. 25, 38-39 (App.
Div.), certif. denied, 114 N.J. 295 (1988), the State
appealed from the trial court’s order dismissing the
indictments against certain narcotics defendants because
the police had failed to preserve pretrial photo arrays
which identified defendants and then fabricated other
arrays. The Appellate Division reversed the order and
held that the issue of whether fundamental fairness
requires dismissal of the prosecutions must be considered
in the context of the values involved. Upon remand, the
trial court must determine whether in-court identifica-
tion of defendants can be made independent of the taint
from the failure of the police to preserve the photographic
arrays and their subsequent cover-up.

Not all infirmities involving missed or overlooked
evidence by the grand jury poses a clear capacity to
produce an unjust and different result concerning
particular counts. If defendant fails to show a nexus

between the evidence that was overlooked or not properly

presented and specific counts of the indictment, such

counts should not be dismissed. The State can rebut by

demonstrating that the missing evidence was not

exculpatory, cumulative or so necessary to some of the

counts so as to warrant dismissal of those counts.

Defendant bears the burden of proof in this regard. State

v. Ciba-Geigy Corp., 222 N.J. Super. at 355-56.

Even in the absence of prejudice to defendant, a

conviction may be reversed and the indictment dismissed

if the prosecutor’s conduct in obtaining an indictment

amounted to an intentional subversion of the grand jury

process. State v. Murphy, 110 N.J. 20, 35-37 (1988);

State v. Engel, 249 N.J. Super. 336, 360 (App. Div.),

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

B. Deadlocked Juries and Decision to Retry Case

A trial court may dismiss an indictment with

prejudice after successive juries have failed to agree on a

verdict when it determines that the chance of the State’s

obtaining a conviction upon further retrial is highly

unlikely. The trial court must carefully and expressly

consider the following factors, which shall govern its

ultimate decision whether to dismiss the indictment: (1)

the number of prior mistrials and the outcome of the

jury’s deliberations, so far as is known; (2) the character

of prior trials in terms of length, complexity, and

similarity of evidence presented; (3) the likelihood of any

substantial difference in a subsequent trial, if allowed; (4)

the trial court’s own evaluation of the relative strength of

each party’s case; and (5) the professional conduct and

diligence of respective counsel, particularly of the

prosecuting attorney. The court must also give due

weight to the prosecutor’s decision to reprosecute,

assessing the reasons for that decision, such as the gravity

of the criminal charges and the public’s concern in the

effective and definitive conclusion of criminal

prosecutions. Conversely, the court should accord

careful consideration to the status of the individual

defendant and the impact of a retrial upon him or her in

terms of untoward hardship and unfairness. State v.

Abbati, 99 N.J. 418, 427-36 (1985); see also State v.

Simmons, 331 N.J. Super. 512 (App. Div. 2000); State v.

Paige, 256 N.J. Super. 362, 367-71 (App. Div.), certif.

denied, 130 N.J. 17 (1992).

C. Duplicity

Separate and distinct offenses cannot be charged in

the same count of an indictment. However, an

indictment is not impermissibly duplicitous if it charges