SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5417-18

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DONTE CRUMIDY,

Defendant-Respondent.

________________________

Argued April 22, 2020 – Decided April 16, 2021

Before Judges Fuentes, Mayer and Enright. 

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 19-01-

0011.

Patrick F. Galdieri, II, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for appellant (Christopher L.C. Kuberiet, Acting 

Middlesex County Prosecutor, attorney; Patrick F. 

Galdieri, II, of counsel and on the brief).

Margaret McLane, Assistant Deputy Public Defender, 

argued the cause for respondent (Joseph E. Krakora, 

Public Defender, attorney; Margaret McLane, of 

counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-5417-18

The decision of the court was delivered by

FUENTES, P.J.A.D.

On April 3, 2014, a Middlesex County grand jury returned Indictment 14-

04-0383 charging defendant Donte Crumidy and codefendants Rickey Barley 

and Juan Dunlap with second degree conspiracy to commit armed robbery and/or 

burglary, N.J.S.A. 2C:5-2 (count one); two counts of first degree armed robbery, 

N.J.S.A. 2C:15-1a(2) (counts two and three); two counts of second degree 

burglary, N.J.S.A. 2C:18-2 (counts four and five); two counts of second degree 

unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts six and seven); and 

two counts of second degree possession of a weapon for unlawful purposes, 

N.J.S.A. 2C:39-4a (counts nine and ten).1

On May 24, 2016, the trial judge severed defendant's case from that of his 

two codefendants and tried him separately based on the strong likelihood that 

defendant's obstreperous behavior would undermine codefendants' right to a fair 

trial. Defendant's trial began on November 30, 2017 and spanned over a period 

of seven days. On December 14, 2017, the jury returned a partial verdict in 

1 The grand jury also returned Indictment 14-04-0385, which separately charged 

defendant with one count of second degree possession of a firearm by person 

previously convicted of one or more of the offenses listed in N.J.S.A. 2C:39-

7(b). However, because the State ultimately dismissed this charge, the 

disposition of this indictment is not part of this appeal.
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which it found defendant not guilty on counts six and seven, second degree 

unlawful possession of two different handguns, and counts nine and ten, second 

degree possession of these two handguns for an unlawful purpose. The 

foreperson also reported to the judge that the jury "could not reach consensus" 

as to counts one, two, three, four, and five. In response to the judge's inquiry, 

both the prosecutor and defense counsel declined to poll the jurors pursuant to 

Rule 1:8-10. 

After discharging the jury, the judge addressed the attorneys as follows:

THE COURT: All right. So, let me ask you this 

question. The . . . verdict on the weapons charge 

nullifies the certain persons Indictment; right? I would 

think so.2 Because they didn't even find him in either 

2 Although not raised here, we are compelled to point out that an acquittal of 

unlawful possession of a handgun in one trial does not vitiate the need to conduct 

a separate trial before the same jury on the charge of possession of the same 

firearm under N.J.S.A. 2C:39-7. As this court made clear in State v. Lopez:

A certain persons trial is not simply the continuation of 

the unlawful possession trial. The proceedings are two 

separate trials which may, but need not, be conducted 

before different juries. [State v. Ragland, 105 189,194-

96 (1986)]. The second trial is a "'"new" trial[;] the 

defendant is entitled to the presumption of innocence 

and, as a consequence of that, to an instruction that each 

and every material fact that makes up the crime, 

including obviously the fact of possession, must be 

proven by the State beyond a reasonable doubt.'"
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sole or joint or constructive possession of a weapon. 

[H]ere's what I need to do. I want you to think about it 

and I want you to come back in January -- how about 

you come back January 22nd, [2018] so we can 

conference this case.

I want to know how you guys want to proceed and then 

we'll set another date in the future, because we're going 

to have to release Mr. Crumidy to his State sentence. 

The State's been looking to pick him up, and we're 

going to have to bring him back at some point. We'll 

have a conference only on the 22nd with the attorneys.

And, what I need [the prosecutor] to do is let me know 

if this verdict requires you to dismiss that certain 

persons charge, number one. And number two, how do 

you want to proceed on . . . the conspiracy, the robbery 

and the burglary charge.

PROSECUTOR: Those I would like to retry.

. . . .

THE COURT: Now, also be prepared to discuss with 

me whether it's just a second degree robbery and a third 

degree burglary, or whether you think you have the 

ability to charge armed robbery and armed burglary, 

given that [the jury] rendered a verdict saying 

essentially that Mr. Crumidy had nothing to do with the 

guns. 

[417 N.J. Super. 34, 40 (App. Div. 2010) (quoting State

v. Wray, 336 N.J. Super. 205, 212 (App. Div. 2001) 

(quoting Ragland, 105 N.J. at 195)).]
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On December 20 and 27, 2018, the State presented evidence to another 

Middlesex County grand jury, related only to the charges on which the petit jury 

was unable to reach a unanimous verdict. On January 3, 2019, the grand jury 

returned Indictment No. 19-01-0011, charging defendant with: second degree 

conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 

(count one); second degree conspiracy to commit armed burglary, N.J.S.A. 

2C:18-2 and N.J.S.A. 2C:5-2 (count two); six counts of first degree armed 

robbery as an accomplice, N.J.S.A. 2C:15-1a(2) and N.J.S.A. 2C:2-6; and two 

counts of second degree burglary as an accomplice, N.J.S.A. 2C:18-2a(1) and 

b(2) and N.J.S.A. 2C:2-6. 

On May 10, 2019, defendant moved to dismiss this indictment. After 

considering the written submissions and oral argument from counsel, the judge 

granted defendant's motion and dismissed the indictment as a matter of law on 

June 10, 2019. The judge held that the jury's acquittal in the first trial of all the 

charges related to possession of the firearms "insulated [defendant] from any 

kind of possession of those weapons." Although the charges in Indictment 19-

01-0011 were predicated under the doctrine of accomplice liability as codified 

in N.J.S.A. 2C:2-6, the judge held:

Nothing related to [a] weapon would be allowed in the 

subsequent trial based on the jury's verdict. Because, 
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again, they indicated that Mr. Crumidy has nothing to 

do either actually or constructively or jointly with the 

weapons alleged. 

Accordingly, since every count of your indictment is 

premised on a weapons charge or some kind of 

possession of a weapon, that would fly in the face of 

the jury's verdict. Clearly fly in the face of [the] jury's 

verdict. So I'm going to have to dismiss this indictment

in its entirety.

In this appeal, the State argues the judge erred when he granted 

defendant's motion to dismiss the indictment as a violation of the Double 

Jeopardy Clause of the Fifth Amendment, U.S. Const. amend. V, and Article I, 

Paragraph 11 of the New Jersey Constitution, N.J. Const. art. I, ¶ 11, or under 

the equitable doctrine of collateral estoppel. After reviewing the record 

developed before the trial court and mindful of prevailing legal standards, we 

agree with the State's position and reverse.

The partial verdict returned by the jury in the first trial acquitted defendant 

of charges related only to unlawful use and possession of handguns. The jury 

did not reach a unanimous verdict on the remaining counts in the original 

indictment. The charges in Indictment 19-01-0011 relate to offenses predicated 

on the doctrine of accomplice liability, first degree robbery, and second degree 

burglary, substantive offenses not covered by the first jury's partial verdict. The 
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State is therefore not barred from prosecuting defendant on these charges by our 

federal or State constitutions, nor the doctrine of collateral estoppel.

I.

The evidence the State presented to the grand jury came predominantly 

from the testimony of New Brunswick Police Department Officer Jeffrey 

Monticello. At approximately 7:30 p.m. on January 3, 2014, Monticello and his 

partner Officer Adorno responded to the scene of a home invasion and robbery 

that occurred in a basement apartment located on Louis Street. This apartment 

was the home of Antonia,3 her twin children Ellie and Roberto, and her then 

three-year-old grandson Julius. They were all present at the time the three 

assailants forced their way into the apartment.

Ellie made the 911 call to the police. She described the man with the 

pistol as approximately six feet tall. The other two assailants were between five 

feet, eight inches to five feet, ten inches tall. One of them had a bookbag and 

demanded her cellphone. Ellie told the officers that although one man had a 

bookbag, none of them were able to take anything from the apartment. 

3 We use first names to protect the privacy of these individuals. We do not 

intend any disrespect. 
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All three men ran away on foot down Louis Street in the direction of 

Somerset Street. Monticello told the members of the grand jury that he noticed 

a Hyundai Accent parked on Somerset Street about "half a city block" from the 

Louis Street home. The car was occupied by three men subsequently identified 

as Dunlap, Barley, and defendant. Dunlap was in the driver's seat. Monticello 

testified that he and Officer Adorno approached the vehicle and asked the 

occupants to step out of the car, When Dunlap exited the vehicle, a silver 

revolver fell from his waistband to the ground. The officers arrested all three 

men. It was later determined that the height of all three men matched Ellie's 

description.

On these facts, the grand jury returned Indictment No. 19-01-0011 against 

defendant. 

II.

We start our analysis by citing State v. Bell, a case in which our Supreme 

Court recently reaffirmed the principles governing grand jury proceedings, the 

role they play in our criminal justice system, and the procedures governing its 

function.

Grand juries stand between citizens and the State, and 

are tasked with assessing whether there is [an] adequate 

basis for bringing a criminal charge. They serve the 

dual function of determining if there is probable cause 
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to believe that a crime has been committed and of 

protecting citizens against unfounded criminal 

prosecutions. The grand jury is a judicial, investigative 

body, serving a judicial function; it is an arm of the 

court, not a law enforcement agency or an alter ego of 

the prosecutor's office.

Procedurally, the grand jury does not conduct a minitrial, but an ex parte inquest . . . .

. . . .

To perform that function, grand juries are invested with 

broad and unfettered investigative powers that are 

largely unrestrained by the technical procedural and 

evidentiary rules governing the conduct of criminal 

trials. Further, a grand jury must be free to pursue its 

investigations unhindered by external influence or 

supervision so long as it does not trench upon the 

legitimate rights of any witness called before it.

Despite the grand jury's investigative independence, 

grand jury proceedings are largely controlled by 

prosecutors. And, although the grand jury determines 

whether there is probable cause, the decision to 

prosecute and what charge to file or bring before a 

grand jury, generally rests entirely in the prosecutor's 

discretion.

[241 N.J. 552, 559-60 (2020) (internal citations 

omitted).]

As an appellate court, we generally review "a trial court's decision to 

dismiss an indictment under the deferential abuse of discretion standard." State 

v. Twiggs, 233 N.J. 513, 532 (2018). However, when the trial court's decision 

is predicated on a question of law, as it is here, our review is de novo. State v. 
10 A-5417-18

S.B., 230 N.J. 62, 67 (2017). Defense counsel argues that the State cannot 

prosecute defendant on the charges reflected in Indictment 19-01-0011 because 

the jury acquitted defendant of the four charges that required "possession" of a 

handgun. 

Criminal possession signifies intentional control and 

dominion, the ability to affect physically and care for 

the item during a span of time, accompanied by 

knowledge of its character. Such possession can be 

constructive rather than actual. Physical or manual 

control of the proscribed item is not required as long as 

there is an intention to exercise control over it 

manifested in circumstances where it is reasonable to 

infer that the capacity to do so exists.

[State v. Stewart, 96 N.J. 596, 603 (1984), (internal 

citations omitted).]

Defendant argues all of the offenses in Indictment 19-01-0011 implicitly 

requires the State to prove defendant had actual or constructive possession of a 

firearm during the commission of a first degree robbery and a second degree 

burglary.

The protections provided by the Fifth Amendment of the federal 

constitution's Double Jeopardy Clause run "coextensive" with the double 

jeopardy protections afforded by the New Jersey Constitution. State v. Miles, 

229 N.J. 83, 92 (2017). Within this spectrum of protections are the prohibitions 

of prosecuting "a defendant for the same offense after an acquittal and . . . 
11 A-5417-18

prosecuting a defendant for the same offense after a conviction." State v. 

Schubert, 212 N.J. 295, 304 (2012). The Fifth Amendment also prohibits 

"imposing on a defendant 'multiple punishments for the same offense.'" Id. at 

304-305 (quoting Jones v. Thomas, 491 U.S. 376, 381 (1989)). 

The equitable doctrine of collateral estoppel "is embodied within the 

Double Jeopardy Clause . . . when an issue of ultimate fact has once been 

determined by a valid final judgment, that issue cannot again be litigated 

between the same parties in any future lawsuit." State v. Brown, 394 N.J. Super. 

492, 501 (App. Div. 2007) (citing Ashe v. Swenson, 397 U.S. 436, 443 (1970)). 

Collateral estoppel "proceeds on the theory that once a jury makes a finding of 

ultimate fact, in a fully and fairly tried case, that finding should not be subject 

to relitigation." State v. Kelly, 201 N.J. 471, 492 (2010). This equitable doctrine 

is "used in criminal prosecutions to complement the constitutional protection 

against double jeopardy by protecting defendants against multiple prosecutions 

for different 'offenses' based on the same set of facts." State v. Gonzalez, 75 

N.J. 181, 192 (1977).

A jury's inability to reach a unanimous verdict on any of the charges 

prosecuted in a criminal trial "results in a 'manifest necessity' for the trial court 

to declare a mistrial, and that re[-]prosecution for the same offense does not 
12 A-5417-18

violate the Fifth Amendment's double jeopardy clause." State v. Cruz, 171 N.J. 

419, 425 (2002), (citing United States v. Perez, 22 U.S. 579, 580 (1824)). Stated 

more directly, "[a] mistrial is not a judgment or order in favor of any of the 

parties." State v. Hale, 127, N.J. Super. 407, 412 (App. Div. 1974).

Here, the trial judge held "[n]othing related to [a] weapon would be 

allowed in the subsequent trial based on the jury's verdict." The judge's ruling 

is based on a fundamental misunderstanding of the nature of the conspiracy 

charges in Indictment No. 19-01-0011. The State's theory of culpability on these 

charges is not dependent on whether defendant possessed a firearm. A jury may 

find defendant guilty of conspiracy to commit a crime with another person if the 

evidence shows defendant purposefully promoted or facilitated its commission, 

and either:

(1) Agrees with such other person or persons that they 

or one or more of them will engage in conduct which 

constitutes such crime or an attempt or solicitation to 

commit such crime; or

(2) Agrees to aid such other person or persons in the 

planning or commission of such crime or of an attempt 

or solicitation to commit such crime.

[N.J.S.A. 2C:5-2(a).]

As our Supreme Court explained in State v. Samuels: "the agreement to 

commit a specific crime is at the heart of a conspiracy charge. Such an 
13 A-5417-18

agreement is central to the purposes underlying the criminalization of the 

inchoate offense of conspiracy." 189 N.J. 236, 245 (2007). Thus, a jury may 

still find him guilty "under a theory of conspiratorial liability based solely on an 

agreement to commit a crime . . . ." State v. Roldan, 314 N.J. Super. 173, 189 

(App. Div. 1998). Because defendant is charged with first degree robbery and 

second degree armed burglary, the State is not required to present evidence of 

any overt act. See N.J.S.A. 2C:5-2(d); N.J.S.A. 2C:15-1(b); N.J.S.A. 2C:18-

2(b)(2).

The State may also prosecute defendant as an accomplice. Under our 

Criminal Code:

[a] person is an accomplice of another person in the 

commission of an offense if: 

(1) With the purpose of promoting or facilitating the 

commission of the offense; he

(a) Solicits such other person to commit it;

(b) Aids or agrees or attempts to aid such other person 

in planning or committing it; or

(c) Having a legal duty to prevent the commission of 

the offense, fails to make proper effort to do so; or

(2) His conduct is expressly declared by law to establish 

his complicity. 

[N.J.S.A. 2C:2-6(c).]
14 A-5417-18

To be convicted of accomplice liability, an individual "must 'share the 

same intent required to be proven against the person who actually committed the 

act.'" In re State ex rel. A.D., 212 N.J. 200, 221 (2012) (quoting State v. Weeks, 

107 N.J. 396, 405 (1987)). In addition to sharing the same intent as the principal, 

an accomplice must also "at least indirectly participate in the commission of the 

criminal act." State v. Whitaker, 200 N.J. 444, 459 (2009). "An accomplice is 

only guilty of the same crime committed by the principal if he shares the same

criminal state of mind as the principal." Id. at 458. However, "an accomplice 

who does not share the same intent or purpose as the principal may be guilty of 

a lesser or different crime than the principal." Ibid.

Of particular relevance here, "[a]n accomplice may be guilty of armed 

robbery even though he did not personally possess or use the firearm" during 

the robbery. State v. White, 98 N.J. 122, 130 (1984). Thus, defendant can be 

convicted as an accomplice if he "has committed the same crime as the 

individual who possessed or used the gun if the accomplice had the purpose to 

promote or facilitate that crime, namely robbery with the use of a firearm." Ibid. 

If the jury finds defendant did not share the purpose to commit first degree 

armed robbery, he may still be convicted of second degree robbery. Whitaker, 

200 N.J. at 459. "[I]f the State could prove that defendant, acting as an 
15 A-5417-18

accomplice, intended to aid or abet [the principal actor] in the theft and knew 

that [the principal actor] was armed with a gun, then defendant too would be 

guilty of armed robbery . . . ." Id. at 461-462.

The June 10, 2019 decision of the Criminal Part is reversed, the order 

dismissing the charges against defendant is vacated, and Indictment 19-01-0011 

is reinstated. The case is remanded for trial. We do not retain jurisdiction.