SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO S . A

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A

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STATE OF NEW JERSEY , Plaintiff

- Appellant ,

v. TELQUAN ADAMS , Defendant

- Respondent.

__________________________ STATE OF NEW JERSEY, Plaintiff

- Appellant,

v. MARK RUFFIN, JR. , Defendant

- Respondent.

___________________________

Argued February 6, 2019

– Decided March 8 , 2019 Before Judges Ostrer, Currier and Mayer.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

- 3.2 A

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- 17T4 On appeal from S uperior Court of New Jersey, Law Division, Monmouth County, Indictment No s . 17

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- 1317 and 18

- 04

- 0 480

. Monica L. do Outeiro , Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Monica L. do Outeiro, of counsel and on the brief s ). Zachary G. Markarian , Assistant Deputy Public Defender , argued the cause for respondent Telquan Adams (Joseph E. Krakora, Public Defender, attorney ; Za chary G. Markarian, of counsel and on the brief). Andrew T. Walsh argued the cause for respondent Mark Ruffin ( Chamlin, Rosen, Uliano , & Witherington , attorneys ; Charles J. Uliano and Andrew T. Walsh, on the brief).
PER CURIAM In these back

- to

- back appeals, consolidated for purposes of this opinion,
t he State of New Jersey appeals from an August 3, 2018 order dismissing indictments for armed robbery, N.J.S.A. 2C:15

- 1, against defendants Telquan Adams (Adams) and Mark Ruffin (Ruffin). 1 We affirm dismissal of the
indictment as to Adams and r everse dismissal of the indictment as to Ruffin.

1 Judgments of dismissal were entered on August 8, 2018.3 A

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This case arises from a botched drug deal. Defendants went to an apartment in Asbury Park to buy prescription drugs from N.F

. 2 After discussing
the buy with defendants , N.F. changed her mind and decided not to sell the drugs. Adams then grabbed the drugs from N.F. and attempted to flee the apartment

. N.F. gave chase and wrestled with Adams

. During the struggle between Adams and N.F. , Ruffin drew a g un, pointed the gun at N.F. , and pulled the tr igger multiple times . However , the gun failed to discharge . As Ruffin fled the apartment , N.F. 's mother entered the fray and beat Adams with her cane

. Eventually, Adams managed to run o ut of the apartment. N.F. 's brother followed
Adams and Ruffin and s aw the men get into a waiting car

. Ruffin pointed the gun at N.F.'s brother from the back seat of the car

. The police were dispatched to N.F.'s apartment in response to a report of an armed robbery. The o fficers interviewed N.F. , her brother, and her mother. Originally, N.F. told the police that Adams and Ruffin stole $150 cash . She failed to tell the officers that defendants came to her apartment to buy drugs and stole the drugs, not cash

. Eventually, N.F. explained defendant s were in her apartment to buy drugs , but maintained the rest of her statement to the police was truthful.

2 We use initials to protect the identity of the victim and her immediate family.4 A

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The p olice also interviewed N.F. 's brother and mother , and both corroborated N.F.'s version of the events

. When t he police showed N.F. a photo
array , she identified Adams and Ruffin as the men in her apartment. The police subsequently arrested Ruffin. A fter waiving his Miranda 3 rights, Ruffin admitted he and Adams we nt to N.F. 's apartment to buy drugs

. Ruffin confirmed Adams grabbed the drugs from N.F . Ruffin denied having a
gun , and t he p olice never recovered a gun or the drugs.
On September 7, 2017 , t he State presented the matter to a grand jury . The assistant prosecutor told the grand jurors that defendants were charged with armed robbery, N.J .S.A. 2C:15

- 1 , unlawful possession of a weapon, N.J.S.A. 2C:39

- 5B(1), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39

- 4A(1) . The State presented a detective who testified about the armed robbery based on statements t o the police by N.F., her brother, her mother, and Ruffin. On September 21, 2 0 1 7, t he grand jury indicted defendants on the armed robbery charge only

. D efendants filed motions to dismiss the indictment s . T he judge granted the motions, concluding the Stat e failed to provide sufficient evidence that defendants threatened N.F. with serious bodily injury. The judge

3 Miranda v. Arizona , 384 U.S. 436 (1966)

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reasoned the grand jury's "no bill" on the weapons charges meant the State failed to provide sufficient evidence to find "defendants were armed w ith, used, or threatened the immediate use of a deadly weapon." A few days after the judge 's dismiss al of the indictments, the State re presented the case to a nother grand jury . In the re

- presentment, the State pursued only the armed robbery charge against defendants

. The State called the

same detective , who gave t estimony similar to that presented to the first grand jury

. In the grand jury re - presentment, t he assistant prosecutor addressed each defendant's culpability

. T he assistant prosecutor gav e t he grand jurors the following instruction :

if you are [a] participant in a crime, you are responsible for the consequences of the people that you're with

. . . . Let's t alk about a standard bank robbery, like what you see on TV. . . . And two people . . . elect to commit this robbery. And I'm going to drive and the person I'm with is going to go into the bank armed with a gun, and they're going to rob the bank

. . . . We get to the scene, we get to the bank, the robbery happens, and we're caught. From a legal perspective, being a participant, an actor I am responsib l e just as much as the person with the gun for that crime. I'm responsible even to the point of what are called foreseeable consequences. For example, let's say that we plan a robbery. We go to the bank

. . . . You go into the bank with a weapon and you end up shooting the security guard. And you kill him. Now you come out, we get caught. My involvement,6 A

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- 17T4 my participation was, bank robber. I in no way knew that she would shoot the secu rity guard. However, going into a bank to rob it, armed with a weapon, is a reasonably foreseeable consequence of your actions. On April 1 2 , 2018, the grand jury indicted both def endants on the armed robbery charge

. Defendants filed moti on s to dismiss the second indictment . On August 3, 2018, the judge again dismissed the indictments

. The judge explained the facts in the second grand jury presentment were identical to the first grand jury presentment

. T he judge concluded the second indictment failed for the same

reasons as the first indictment

. On appeal, the State argues the judge erred in dismissing the indictments against defendants because: (1) the judge erroneously believed the gun used in the armed robbery was neces sary evidence for an indictment ; (2) the judge
i ncorrectly attached legal s ignifican ce to the first grand jury's inconsistent finding of no probable cause regarding the weapons possession charges in the first grand jury presentment; and (3) the judge faile d to accord all reasonable inferences in favor of the State based on the evidence presented to the grand jury. We review a trial court's dismissal of an indictment for abuse of discretion. State v. Tringali , 451 N.J. Super. 18, 27 (App. Div. 2017) (citing7 A

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State v. Gruber , 362 N.J. Super. 519, 527 (App. Div. 2003)) . " A trial court decision will constitut e an abuse of discretion where ' the decision [was] made without a rational explanation, inexplicably departed from established policies,

or re sted on an im permissible basis.'" State v. Triestman , 416 N.J. Super. 195, 202 (App. Div. 2010) (alteration in original) (quoting U nited S tates v. Scurry , 193 N.J. 492, 504 (2008) ). " When the decision to dismiss relies on a purely legal question, however, we review that determination de novo." State v. Twiggs , 233 N.J. 513, 532 (2018). We must ensure the trial court employed the correct legal standard in dismissing the indictment. S tate v. Abbati , 99 N.J. 418, 436 (1985). "Once the grand jury has acted, an 'indictment should be disturbed only on the clearest and plainest ground,' and only when the indictment is manifestly deficient or palpably defective." State v. Hogan , 144 N.J. 2 16, 228

– 29 (1996) (quoting State v. Perry , 124 N.J. 128, 168 (1991)). We " should not disturb an indictment if there is some evidence establishing each element of the crime to make out a prima facie case." State v. Morrison , 188 N.J. 2, 12 (2006)

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Applyin g our standard of review to the dismissal of the indictment against Adams, we are satisfied the dismissal was proper , but do so for reasons other than those expressed by the judge

. 4 "A prosecutor must charge the grand jury 'as to the elements of specific offenses.'" State v. Eldakroury , 439 N.J. Super. 304, 309 (App. Div. 2015) (quoting Triestman , 416 N.J. Super. at 205 )

. "[A]n indictment will fail where a prosecutor's instructions t o the grand jury were misleading or an incorrect statement of law." Ibid

. A grand jury instruction must not "r elieve[] the State of the burden of proving defendant's mens rea as to an essential element of the offense." Eldakroury , 439 N.J. Super. at 3 0 9

. If an instruction relieves the State of that burden, it is "blatantly wrong and warrant[s] dismissal of the indictment." Ibid. 5

4 We affirm or reverse judgments and orders, not reasons. State v. Heisler , 422 N.J. Super. 399, 416 (App. Div. 2011) (citing Is ko v. Planning Bd. of Twp. of Livingston , 51 N.J. 162, 175 (1968) )

. A correct result, even if grounded on an erroneous basis in fact or in law, will not be overturned on appeal. See GNOC , Corp. v. Dir., Div. of Taxation , 328 N.J. Super. 467, 474 (App. Di v. 2000) (citing Ellison v. Evergreen Cemetery , 266 N.J. Super. 74, 78 (App. Div. 1993)).

5 During oral argument, the State cited State v. Hakim , 205 N.J. Super. 385, 388 (App. Div. 1985) for the proposition that an indictment need not specifically inclu de "accomplice liability." While we agree the indictment against Adams need not "allege accomplice liability as a prerequisite," id. , nothing in Hakim relieves the State of its obligation to provide proper instructions to the grand jury

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The robbery statute provides:

a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, h e: (1) Inflicts bodily injury or uses force upon another; or (2) Threatens another with or purposely puts him in fear of immediate bodily injury; or (3) Commits or threatens immediately to commit any crime of the first or second degree.
A n act shall b e deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission. b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon. [N.J.S.A. 2C:15

- 1.]

" Whether a defendant is a principal or an accom plice, the State must prove [ th e defendant ] possessed the mental state necessary to commit the offense." State v. Whitaker , 200 N.J. 444, 458 (2009) ( citing N.J.S.A. 2C:2

- 2(a) )

. "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." Ibid. (citing State v. White , 98 N.J. 122 , 129 (1984)). There is a distinction in the law between a10 A

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defendant who shared the purpose to commit a robbery with a deadly weapon and a defendant who shared only the purpose to commit robbery

. I f a defendant
shared the purpose to commit a robbery, but not the purpose to use a deadly weapon, then the defendant would be guil ty of robbery rather than armed robbery. See State v. Hammock , 214 N.J. Super. 320, 322 (App. Div

. 1986). Here, the assistant prosecutor informed the grand jur y that they could indict Adams for armed robbery simply because he was a " participant

. " He told the grand jurors that " [f]rom a legal perspective, being a participant, an actor [is] responsible just as much as the person with the gun for that crime. " Having reviewed the record, we are satisfied t he assistant prosecutor incorrectly instructed the grand jury that Adams was not required to have the purpose to commit a robbery with a weapon as long Adams was a participant. The grand jury asked the assistant prosecutor to explain "each of the men's roles in the case." T he State failed to explain that , to indict Adams for armed robbery , the grand jury had to determine Adams possessed the purpose to commit a robbery wit h a weapon

. T he instruction given by the assistant prosecutor, stating the grand jury need only find Adams was a " participant , " improperly relieved the State of its burden of proof as to the required mens rea
for an indictment against Adams on the armed robbery charge

. Because the11 A

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instruction provided to the grand jury was an incorrect statement of the law, dismissal of the indict ment as to Adams was proper.
A pplying our standard of review to the judge's dismissal of the indictment against Ruffin, we reach a different conclusion. The judge's dismissal of that indictment was erroneous because the State presented some evidence Ruff in aided in the theft of the drugs and attempted to use a deadly weapon during the theft. "Committing or attempting to commit a theft is a necessary element of th e crime of robbery." Whitaker , 200 N.J. at 459 (citing State v. Farrad , 164 N.J. 247, 257 (20 00)). A person is guilt y of theft if "he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20

- 3 (a)

. "[A]ssaultive or intimidating conduct necessary to elevate theft to robbery somehow must be related to the theft itself. If such assaultive or intimidating conduct occurs 'in immediate flight after the attempt or commission' of the theft, then what was a theft becomes a robbery." Whitaker , 200 N.J. at 460 (citations omitted) (quoting N.J.S.A. 2C: 15

- 1 (a) ). Robbery in the first degree occurs if the " actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with,

or us es or threatens the immediate use of a deadly weapon. " N.J.S.A. 2C:15

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1 (b). Because robbery is a specific intent crime, the State must show the defendant purposefully used, or threat en ed the use of, a deadly weapon. State
v. Nero , 195 N.J. 397, 401 (200 8). 6 Here, N.F. told the police that Ruffin brandished a gun after she began to wrestle with Adams

. Under the circumstances, t he grand jury could reasonably infer Ruffin had the purpose to help Adams "unlawfully take[ ], or exercise[] unlawful control over," the drugs and thus "deprive" N.F. o f her property

. N.J.S.A. 2C:20

- 3. Based on the testimony, the grand jury could circumstantially conclude Ruffin had the intent to take the drugs because he accompanied Adams
to t he apartment to buy the drugs and fled in the same car as Adams after N.F. refused to sell the drugs

. E ven if Ruffin's attempt to use the gun was not part of the theft, the use of the gun w as " intimidating conduct" in the " immedia te flight after attempt o r the commission of the theft." Whitaker , 200 N.J. at 460

. O n the charge of armed robbery, t he State was required to present some evidence that Ruffin was armed with a deadly weapon and purposefully put N.F. in fear of serious bodily harm. Hogan , 144 N.J. at 236 ; N.J.S.A . 2C:15

- 1. In the presentment to the grand jury, t he State offered testimony regarding N.F. 's

6 The State need not present the firearm to obtain an indictment, or even a conviction, for armed robbery. See State v. Hickman , 204 N.J. Super. 409 , 414

– 15 (App. Div. 1985).13 A

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statement to the police

. N.F. told the police Ruffin brandished a gun, attempted to shoot her several times , and the gun failed to discharg e . While fleeing, Ruffin then pointed the gun at N.F. 's brother

. Based on the testimony, t he grand jury could reasonably infer Ruffin intended to kill N.F. with a gun, or purposely put her i n fear of serious bodily injury . The State need not present the weapon or testimony of N.F.'s fear because the evidence demonstrated Ruffin was armed with a deadly weapon and attempted to use it during the theft. Based on circumstantial evidence and reasonable inferences, we are satisfied the State presented some ev idence to the grand jury to support each element of the armed robbery charge against Ruffin

. Dismissal of the indictment as to Adams is a ffirmed

. 7 Dismissal of the indictment as to R uffin is reversed and the indictment is reinstated

.

7 The dismissal of the indictment as to Adams is without prejudice, and the State may elect to re

- present the case as to Adams to a third grand jury.