ness or retaliation suggested by a superseding
indictment, which charged an additional count of welfare
fraud, by the State’s explanation that the superseding
indictment was a necessary and appropriate correction of
an incorrect indictment rather than an incorporation of
previously ignored material into a wholly new count.
The superseding indictment corrected the obvious
variation between the proofs presented to the grand jury
and the form of the incorrect indictment.
In State v. Bauman, 298 N.J. Super. 176, 206 (App.
Div.), certif. denied, 150 N.J. 25 (1997), the court found
that there was no presumption of prosecutorial
vindictiveness when the State amended the indictment
despite its addition of charges in the superseding
indictment, particularly because evidence supporting
those additional charges was presented to the grand jury
and it can be inferred that those charges were
inadvertently omitted from the original indictment.
In State v. Long, 119 N.J. 439, 465-67 (1990), the
Court held that the superseding indictment, which
included four additional charges, was not returned in
retaliation for defendant’s exercise of his constitutional
and procedural rights. The Court commented that there
was no presumption of prosecutorial vindictiveness
because the superseding indictment did not significantly
increase the potential punishment.
III. DISMISSAL OF INDICTMENT (See also,
PROSECUTORS, this Digest)
A. Generally
An indictment should stand unless manifestly
deficient or palpably defective. Judicial discretion to
dismiss indictment is not to be exercised except upon the
clearest and plainest grounds. State v. Ramseur, 106 N.J.
123, 231-36 (1987); State v. Kyc, 257 N.J. Super. 600,
603 (Law Div.), rev’d o.g., 261 N.J. Super. 104 (App. Div.
1992), certif. denied, 133 N.J. 436 (1993). A violation of
the grand jury selection process requires dismissal only
when the violation substantially undermines the
randomness and objectivity of the selection process or
when it causes harm to defendant. In Ramseur, dismissal
was not warranted where the trial court excluded
potential jurors on the basis of race in an attempt to
achieve greater racial balance. State v. Ramseur, 106 N.J.
at 231-36. However, in State v. Russo, 213 N.J. Super.
219, 226-37 (App. Div.), certif. denied, 126 N.J. 322
(1991), defendant was entitled to a dismissal of the
indictment when he timely objected to the statutorily
defective grand and petit jury selection process.Unless the prosecutor’s misconduct before a grand
jury is extreme and clearly infringes the grand jury’s
decision-making function, it should not result in the
dismissal of an indictment. Thus, where the prosecutor
indicates to a witness in the presence of the grand jury
that he believes that the witness had perjured himself,
there was no need to dismiss the indictment. State v.
Schamberg, 146 N.J. Super. 559, 563-65 (App. Div.),
certif. denied, 75 N.J. 10 (1977); see also State v. Porro, 175
N.J. Super. 49, 51-52 (App. Div. 1980); State v. Hart,
139 N.J. Super. 565, 567-68 (App. Div. 1976).Even if an indictment appears sufficient on its face, it
cannot stand if the State fails to present the grand jury
with at least “some evidence” as to each element of a prima
facie case. The quantum of evidence required as to each
element is not great, but if the State fails to meet it the
indictment should be dismissed. State v. Schenkolewski,
301 N.J. Super. 115, 137 (App. Div.), certif. denied, 151
N.J. 77 (1997); State v. Bennett, 194 N.J. Super. 231,
233-34 (App. Div. 1984).In State v. Sugar, 100 N.J. 214, 244-45 (1985), the
Court held that, under the peculiar circumstances of this
case where a police detective intentionally and illegally
eavesdropped on an attorney-client conversation, the
detective who had eavesdropped was tainted and should
not have testified at either the suppression hearing or at
trial. The Court further intimated that if that detective
had testified at the grand jury proceeding, defendant
could have moved to dismiss the indictment on the basis
of the tainted testimony. However, even if the first
indictment had been dismissed, the State could have
proceeded anew in its attempt to prosecute if evidence,
unsullied by constitutional violations, existed.A dismissal of an indictment against an incompetent
defendant who has remained unfit to stand trial for such
time as the court may deem adequate must be with
prejudice, but a dismissal of an indictment against an
incompetent defendant when the court determines it is
not substantially probable that defendant will regain
competence in the foreseeable future may be with or
without prejudice depending on the circumstances. State
v. Gaffey, 92 N.J. 374, 383-90 (1983).In State v. DelFino, 100 N.J. 154, 159-66 (1985),
where defendant moved to dismiss the indictment after
the dismissal of the indictment against a codefendant, the
Supreme Court of New Jersey held that defendant could