NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2058-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEROME SHAW, JR., JEROME 

SHAW, JERONE SHAW, JR., 

and ROME,

Defendant-Appellant.

_______________________________

Submitted January 29, 2018 – Decided

Before Judges Sabatino, Ostrer and Whipple.

On appeal from Superior Court of New Jersey, 

Law Division, Bergen County, Indictment No. 

13-04-0591.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Anderson D. Harkov, 

Designated Counsel, on the brief).

Dennis Calo, Acting Bergen County 

Prosecutor, attorney for respondent (Michael 

R. Philips, Special Deputy Attorney 

General/Acting Assistant Prosecutor, of 

counsel and on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

Defendant Jerome Shaw, Jr., appeals from his conviction and 

sentence after he pleaded guilty to third-degree conspiracy to 

July 23, 2018
2 A-2058-15T3

commit burglary, N.J.S.A. 2C:5-2, N.J.S.A. 2C:18-2, and 

disorderly persons possession of burglary tools, N.J.S.A. 2C:5-

5(a). After a grand jury refused to indict, the State 

resubmitted the case to a new grand jury, which voted an 

indictment. The court sua sponte dismissed that indictment and 

the State resubmitted again, this time with an additional 

witness, and secured a second indictment. Defendant contends 

the court should have dismissed that indictment, too, because 

the evidence was not materially different; and a grand jury 

witness disclosed defendant's admission that he had "some prior 

criminal history." Defendant also argues the court erred in 

denying his motion to suppress evidence, including various 

burglary tools, seized after a traffic stop. Lastly, he argues 

his five-year sentence was excessive, and the court imposed a 

longer period of parole ineligibility than it promised. 

While the prosecutor's power to resubmit cases to a grand 

jury is not boundless, we need not chart the limits on 

successive grand jury resubmissions to conclude there was no 

basis shown here to warrant dismissal of the indictment. Only 

one successive grand jury was required to secure an indictment. 

After the court dismissed that indictment (mistakenly, we 

conclude, for reasons discussed below), the State presented 

additional evidence, and a third grand jury voted a second 
3 A-2058-15T3

indictment. The evidence supporting the State's case was 

strong. There is no proof of prosecutorial vindictiveness or an 

abusive exercise of prosecutorial discretion. Nor did defendant 

show that resubmission was unduly burdensome, or that it 

deprived him of fundamental fairness. Furthermore, the passing 

reference to defendant's criminal history did not deprive him of 

a fair grand jury presentation. 

Also, the trial court correctly denied the motion to 

suppress. Lastly, although the sentence was not excessive, we 

remand for reconsideration of the parole ineligibility term.

I.

Upper Saddle River Police Officer Emmett McDowell performed 

a traffic stop in Saddle River after defendant and his father, 

co-defendant Jerome Shaw, Sr. (Senior), were backing a truck out 

of a driveway onto West Saddle River Road into McDowell's path. 

Senior was behind the wheel. McDowell said he had to slam on 

his brakes to avoid "t-bon[ing]" the truck. 

After he approached defendant's truck, McDowell began to 

suspect something more than a traffic violation was afoot. The 

two men were dressed almost head to toe in black, including 

black shoes and coveralls; they appeared nervous. Senior had a 

New York driver's license, but the truck had North Carolina 

plates and was registered to a woman. A rifle case – the sort 
4 A-2058-15T3

used to carry assault rifles – was visible on the rear seat. 

Asked what was in the case, Senior said it contained 

construction tools, and invited McDowell to look for himself. 

Saddle River Police Officer Edward Riedel arrived to assist 

McDowell. After Senior was asked to exit the truck, Riedel 

questioned defendant about the rifle case's contents. As did 

his father, defendant invited the officer to look for himself. 

Riedel removed the rifle case and opened it. It contained 

several pry bars, a large mallet, some pipe wrenches, several 

zip ties of various sizes, knee pads, and cutting instruments. 

Some of the tools were brand new, with their price tags still 

attached. The two men claimed to be on construction jobs, 

although it was after 1:00 a.m. and they were in a residential 

area. They could not say where they were working. They gave 

contradictory explanations of the nature of the work they did, 

and the kind of properties they worked on. Riedel saw black ski 

masks and gloves on the floor of the truck, although it was a 

mild October evening. They also claimed to be lost and looking 

for Route 17, but there was a GPS device in the vehicle. Riedel 

suspected the two men were planning to commit a burglary, or 

already had committed one.

Once Riedel asked defendant to step out of the truck, 

defendant could produce no identification. He was acting 
5 A-2058-15T3

nervously. He disclosed he had previously been arrested for 

weapons offenses. Riedel then patted defendant down, and seized 

a small flashlight. Defendant and Senior were arrested and 

searched incident to arrest. The officers seized from defendant 

a list of six residences in Saddle River and Mendham. They 

seized from Senior a flashlight and a tennis-ball-sized rock. 

Aside from the rifle case's contents, the other items in the 

truck were seized pursuant to a search warrant. 

The first grand jury, which heard Riedel generally recount 

these facts, declined to indict. A month later, the State represented the case through Riedel's testimony to a second grand 

jury, which returned an indictment. However, the presiding 

criminal judge dismissed the indictment on her own motion. She 

did so after the clerk informed her that the second indictment 

involved the same complaint-warrant and the same witness as the 

first presentment.1 The judge later explained that she was 

enforcing what she called "the multiple presentation rule," 

which, she said, provides "you can't go to the grand jury more 

than once on the same facts." 

Shortly thereafter, the State presented the case to a third 

grand jury. Of relevance to one of defendant's points on 

 

1 The record does not include the transcript of the grand jury's 

return of the indictment to the court, nor does it include the 

court's order of dismissal. 
6 A-2058-15T3

appeal, Riedel softened defendant's admission that he had 

weapons arrests. Explaining his decision to pat down defendant, 

Riedel testified, "Eventually he admitted to some prior criminal 

history that raised my suspicion . . . ." 

In addition to Riedel, the State for the first time called 

Captain Timothy Condon of the Bergen County Prosecutor's Office, 

as an expert in burglary investigations. Condon supplemented 

Riedel's opinion that the circumstances indicated that defendant 

and Senior were planning to commit burglary. Condon highlighted 

that burglars often use new tools, to avoid preserving evidence 

on the tools of previous burglaries. By contrast, people 

actually involved in construction usually have well-worn tools. 

He opined the zip ties were likely intended for restraining 

occupants of a home. The rocks were to be used to break 

windows. The black attire was designed to avoid detection. He 

viewed defendant's list of addresses as a "hit list." He also 

noted that defendant possessed a hand truck, which he could have 

used to remove a safe. 

The third grand jury returned an indictment, which, in 

addition to the conspiracy count to which defendant later 

pleaded guilty, charged six counts of third-degree attempted 

burglary, N.J.S.A. 2C:5-1, N.J.S.A. 2C:18-2 – for each residence 

on defendant's list – as well as three counts of third-degree 
7 A-2058-15T3

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

4(d), characterizing a sledgehammer, mallet, and prybar as 

weapons.

In support of his motion to dismiss the indictment, 

defendant's counsel argued that the State abused the grand jury 

process by resubmitting the case without judicial approval, and 

without presenting materially different evidence. Defendant 

also objected to the reference to defendant's criminal history. 

The court denied the motion, finding that Condon offered new and 

additional evidence. The court did not address the point about 

defendant's criminal history. 

The court thereafter conducted an evidentiary hearing on 

defendant's motion to suppress the evidence seized as a result 

of the traffic stop, and subsequent searches. McDowell and 

Riedel testified, generally recounting the facts summarized 

above. The court denied the motion. The court held that the 

initial stop was justified, because defendant blocked traffic. 

Other circumstances – the time, the out-of-state plates, the 

black attire, and the rifle case – warranted further 

investigation. The court held that the warrantless search of 

the rifle case was justified based on consent and the plain view 

doctrine. The gloves, masks, goggles, and GPS unit were also in 

plain view, although police awaited a warrant before seizing 
8 A-2058-15T3

them. The pat-down of defendant and seizure of the flashlight 

were justified by a reasonable safety concern; and the seizure 

of other items on defendant's and Senior's persons was properly 

based on searches incident to arrest.

Following denial of his pre-trial motions, defendant 

entered his guilty plea before a different judge. The plea 

agreement with the State called for a five-year term, with a 

two-year parole bar, but the judge promised to impose a twentymonth parole bar. The sentence was to be concurrent to a North 

Carolina sentence defendant was already serving. 

At the sentencing hearing, the judge noted defendant, then 

thirty-five years old, had an extensive, multi-state criminal 

record, which supported finding aggravating factors three, 

N.J.S.A. 2C:44-1(a)(3) (risk of re-offense); six, N.J.S.A. 

2C:44-1(a)(6) (extent of prior criminal record and seriousness 

of offenses); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter 

defendant and others). Those factors substantially outweighed 

mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment 

would be excessive hardship on dependents). Defendant had a 

young child. 

Although he stated he would honor the plea agreement, the 

judge imposed a parole bar of two years instead of twenty months 
9 A-2058-15T3

on the five-year term. The ensuing judgment of conviction did 

not reflect any parole bar. 

On appeal, defendant raises the following points for our 

consideration:

POINT ONE

THE INDICTMENT AGAINST DEFENDANT SHOULD HAVE 

BEEN DISMISSED DUE TO THE INHERENT PREJUDICE 

OF THE GRAND JURY BEING TOLD DEFENDANT HAD A 

PRIOR CRIMINAL HISTORY AND BECAUSE THE STATE 

PRESENTED THE SAME EVIDENCE TO THREE 

SEPARATE GRAND JURIES BEFORE IT FINALLY 

OBTAINED AN INDICTMENT.

POINT TWO

THE TRIAL COURT ERRED WHEN IT DENIED 

DEFENDANT'S MOTION TO SUPPRESS EVIDENCE 

SEIZED AS A RESULT OF A WARRANTLESS SEARCH 

BECAUSE THE POLICE OFFICERS CONDUCTED AN 

IMPROPER INVESTIGATORY DETENTION, FOLLOWED 

BY AN ILLEGAL WARRANTLESS SEARCH OF THE 

RIFLE CASE THEY REMOVED FROM DEFENDANT'S 

VEHICLE. THE SUBSEQUENT WARRANTLESS 

SEARCHES, AND THE SEARCH WARRANT OBTAINED 

THEREAFTER, WERE THE "FRUIT" OF THAT ILLEGAL 

SEARCH, CONTRARY TO THE UNITED STATES AND 

NEW JERSEY CONSTITUTIONS.

POINT THREE

DEFENDANT'S SENTENCE WAS EXCESSIVE AND 

CONSTITUTED AN ABUSE OF DISCRETION, 

REQUIRING HIS SENTENCE BE VACATED AND THE 

CASE RETURNED TO THE TRIAL COURT FOR A NEW 

SENTENCE HEARING.

POINT FOUR

THE DISCREPANCY BETWEEN THE PLEA AGREEMENT, 

SENTENCING TRANSCRIPT, AND JUDGMENT OF 

CONVICTION MUST BE CLARIFIED.
10 A-2058-15T3

II.

Defendant contends the grand jury proceedings were 

defective because: (1) the State resubmitted the matter to 

multiple grand juries, and presented the same evidence, despite 

offering a new witness at its third presentation; and (2) 

elicited information that defendant had a criminal history. In 

response, the State contends, without qualification, "[a] 

prosecutor may resubmit a previously no-billed case to any grand 

jury at any time within the statute of limitations . . . ." 

Although an abuse of discretion standard generally governs 

our review of a trial court's decision on a motion to dismiss an 

indictment, we review de novo a decision that "relies on a 

purely legal question . . . ." State v. Twiggs, ___ N.J. ___, 

___ (2018) (slip op. at 20). In reviewing the "decision of a 

trial court to dismiss [or not dismiss] an indictment with 

prejudice[, we] must ensure that the correct standard was 

employed by the trial court." State v. Abbati, 99 N.J. 418, 436 

(1985). We are also free to affirm a trial court's decision on 

grounds other than those the trial court relied upon. Hayes v. 

Delamotte, 231 N.J. 373, 386-87 (2018); State v. Heisler, 422 

N.J. Super. 399, 416 (App. Div. 2011).
11 A-2058-15T3

A.

To address defendant's resubmission argument, we first 

consider basic principles pertaining to the grand jury, the 

prosecutor's charging discretion, and the court's authority to 

assure fundamental fairness. "No person shall be held to answer 

for a criminal offense, unless on the presentment or indictment 

of a grand jury . . . ." N.J. Const. art. I, ¶ 8. A defendant 

is entitled to a "fundamentally fair grand jury presentation." 

State v. Grant, 361 N.J. Super. 349, 356 (App. Div. 2003). "The 

purposes of the grand jury extend beyond bringing the guilty to 

trial. Equally significant is its responsibility to 'protect[] 

the innocent from unfounded prosecution.'" State v. Hogan, 144 

N.J. 216, 228 (1996) (quoting State v. Murphy, 110 N.J. 20, 29 

(1988)). "The grand jury serves an important and historic 

purpose in standing between the defendant and the power of the 

State, protecting the defendant from unfounded prosecutions." 

State v. Fortin, 178 N.J. 540, 638 (2004). 

Noting that many other states have dispensed with the grand 

jury entirely, our Court observed, "In New Jersey, the grand 

jury remains a constitutional bulwark against hasty and illfounded prosecutions and continues to lend legitimacy to our 

system of justice by infusing it with a democratic ethos." 

Ibid. "[T]he right to indictment in the State Constitution 
12 A-2058-15T3

indicates that the grand jury was intended to be more than a 

rubber stamp of the prosecutor's office." Hogan, 144 N.J. at 

236. "Our State Constitution envisions a grand jury that 

protects persons who are victims of personal animus,

partisanship, or inappropriate zeal on the part of a 

prosecutor." Ibid. 

Yet, an indictment should not be dismissed "except on 'the 

clearest and plainest ground' and an indictment should stand 

'unless it is palpably defective.'" State v. N.J. Trade Waste 

Ass'n, 96 N.J. 8, 18-19 (1984) (quoting State v. Weleck, 10 N.J. 

355, 364 (1952)). Our Supreme Court has declared the general 

principle that "[a] trial court . . . 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). 

Before the grand jury may exercise its power, the 

prosecutor must make the discretionary decision to present the 

case. The prosecutor's "duty is not merely to prosecute the 

guilty but to protect the innocent as well." Abbati, 99 N.J. at 

434. Our Court has recognized that the prosecutor's charging 

power is broad, but not boundless. Upon clear and convincing 

proof of a patent and gross abuse of discretion, a court may set 

aside a refusal to admit a defendant to pre-trial intervention. 
13 A-2058-15T3

See State v. K.S., 220 N.J. 190, 200 (2015) (noting "[t]his 

discretion arises out of 'the fundamental responsibility of 

prosecutors for deciding whom to prosecute'") (quoting State v. 

Dalglish, 86 N.J. 503, 509 (1981)); State v. Leonardis, 73 N.J. 

360, 382 (1977) (recognizing the "patent and gross abuse of 

discretion" standard); State v. Childs, 242 N.J. Super. 121, 129 

(App. Div. 1990) (stating that the prosecutor's broad 

discretion, while "not boundless, . . . may only 'be reviewed 

for arbitrariness or abuse'") (quoting In re Investigation 

Regarding Ringwood Fact Finding Comm., 65 N.J. 512, 516 (1974)).

Separate from the court's authority to review prosecutorial 

discretion, see Abbati, 99 N.J. at 433-34 (noting that the 

prosecutor's office "has never been regarded as free from 

judicial supervision and control"), is the court's inherent 

authority to dismiss an indictment with prejudice to assure 

fundamental fairness. "Thus, the prosecutor's decision to 

reprosecute [after successive mistrials] is not immune from 

judicial supercession even absent a finding of abuse of 

prosecutorial discretion." Id. at 434. "The anxiety, vexation, 

embarrassment and expenses to the defendant of continual 

reprosecution where no new evidence exists is a proper subject 

for the application of traditional notions of fundamental 

fairness and substantial justice." Id. at 430. The Supreme 
14 A-2058-15T3

Court held that "a trial court [after considering multiple 

factors] 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." Id. at 435.2 

The Court invoked Abbati in stating that it "would reflect 

an appropriate exercise" of the court's inherent authority to 

dismiss an indictment where the grand jury process was tainted 

by an unconstitutional criminal investigation. State v. Sugar,

 

2 In deciding whether to dismiss an indictment with prejudice 

after successive mistrials, a trial court must consider: 

(1) the number of prior mistrials and the 

outcome of the juries' 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 the defendant in 

terms of untoward hardship and unfairness.

[Abbati, 99 N.J. at 435.]
15 A-2058-15T3

100 N.J. 214, 245 n.4 (1985) (citing Abbati, 99 N.J. at 418).3

We therefore surmise that the grand jury process is subject to 

review based on the judiciary's inherent authority to assure 

fundamental fairness.

B.

Turning to the issue of resubmission of cases to successive 

grand juries, we are aware of no New Jersey statute or common 

law precedent — and defendant points to none — that 

categorically bars a prosecutor from choosing to resubmit a case 

to a new grand jury after one has previously voted a no bill, or 

requires the State to present new evidence as a condition of 

resubmission. Consequently, we find no basis for the trial 

court's pronouncement of the "multiple presentation rule" that 

conditions resubmission on the presentation of new evidence. 

The Attorney General has not established any standard 

limiting resubmission. The manual promulgated by the Attorney 

General and the County Prosecutors Association provides:

Nor does the fact that a grand jury has 

considered the matter and voted a no-bill 

legally bar re-presentation of the matter to 

the grand jury, because the return of a nobill reflects nothing more than the fact 

that a particular grand jury at a particular 

time found that the proofs presented to it 

 

3 In Sugar, the Court suggested that the State could "proceed 

anew" with evidence "unsullied by the constitutional violations 

that occurred." 100 N.J. at 245 n.4. 
16 A-2058-15T3

were insufficient to establish the 

commission of a crime or the participation 

in a crime of a particular accused. 

[New Jersey Grand Jury Manual 95 (Dep't of 

Law & Pub. Safety et al. eds., 4th ed. 

1993).]4

 

A trial court addressed the issue of resubmission in a 

civil case. Rosetty v. Twp. Comm. of Hamilton Twp., 82 N.J. 

Super. 340, 349 (Law Div. 1964), aff'd o.b., 96 N.J. Super. 66 

(App. Div. 1967). In holding that a no bill was not proof of a 

person's innocence, the trial court noted, "[T]he same grand 

jury, or its successor, might properly, within the period of the 

statute of limitations, review and reconsider the charges and 

return an indictment against an accused." Ibid. However, the 

statement in Rosetty is not the end of our analysis, because the 

statement was not essential to the court's decision, and the 

court did not address whether there are limitations on 

resubmission. 

The prevailing view in other jurisdictions is that there is 

no general limitation on a prosecutor's power to resubmit 

matters to a second grand jury after failing to secure an 

indictment from the first. See Wayne R. LaFave et al., Criminal 

 

4 By contrast, the United States Attorney's Manual, "suggests 

that representment not occur 'in the absence of additional or 

newly discovered evidence or a clear circumstance of a 

miscarriage of justice.'" United States. v. Pabian, 704 F.2d 

1533, 1538 (11th Cir. 1983).
17 A-2058-15T3

Procedure, § 15.2(h) (4th ed. 2015); Sara Sun Beale et al., 

Grand Jury Law & Practice, § 8:6 at 8-56 to 8-65 (2d ed. 2015). 

In particular, "[t]he longstanding federal rule is that 

resubmissions are permissible, without court approval, even when 

the prosecutor presents no additional evidence to the second 

grand jury." LaFave, § 15.2(h) at 535. 

The United States Supreme Court has declared, "[T]he power 

and duty of the grand jury . . . is not exhausted or limited by 

adverse action taken by a previous grand jury, and . . . a 

United States district attorney may present, without leave of 

court, charges which a previous grand jury has ignored." Ex 

parte United States, 287 U.S. 241, 250-51 (1932); see also

United States v. Thompson, 251 U.S. 407, 413-15 (1920) 

(rejecting the argument that the prosecutor needed judicial 

approval to resubmit charges to a new grand jury upon virtually 

the same evidence that failed to persuade a prior grand jury); 

United States v. Claiborne, 765 F.2d 784, 794 (9th Cir. 1985) 

(holding "that the prosecution's presentation of evidence to 

three grand juries . . . violated no procedural rule or 

judicially-imposed limits on a grand jury's investigatory role," 

where the third grand jury voted to indict after the first two 

did not). "The Double Jeopardy Clause of the Fifth Amendment 

does not bar a grand jury from returning an indictment when a 
18 A-2058-15T3

prior grand jury has refused to do so." United States v. 

Williams, 504 U.S. 36, 49 (1992) (first citing Ex parte United

States, 287 U.S. at 250-51; then citing Thompson, 251 U.S. at 

413-15). 

Statutes in a minority of states require judicial approval 

of a second presentment. LaFave, § 15.2(h) at 536; see also

Beale, § 8:6 at 8-56 n.1, 8-60 n.10 (listing states that 

restrict submission by statute or court rule). Typically, those 

courts have required a showing of newly discovered evidence. 

LaFave, § 15.2(h) at 536-37. For example, in People v. Ladsen, 

444 N.Y.S.2d 362, 364-66 (Sup. Ct. 1981), a New York trial court 

applied N.Y. Crim. Proc. Law § 190.75 (1977), which states that 

a dismissed charge may not be resubmitted to a grand jury 

"unless the court in its discretion authorizes or directs the 

people to resubmit such charge to the same or another grand 

jury." The court held that the presentation of new evidence 

justified the resubmission. Ladsen, 444 N.Y.S.2d at 365-66. 

Alternatively, at least one state – Georgia – has statutorily 

imposed a fixed limit of two presentations, except newly 

discovered evidence or fraud by the defendant may justify a 

third. See Ga. Code Ann. § 17-7-53 (2018). However, New Jersey 

has not adopted a statutory restriction on resubmission.
19 A-2058-15T3

The underlying rationale of the federal approach is that 

"the power and duty of the grand jury to investigate . . . is 

continuous and is therefore not exhausted or limited by adverse 

action [previously] taken by a grand jury or by its failure to 

act." LaFave, §15.2(h) at 536 (quoting Thompson, 251 U.S. at 

413). Requiring judicial approval of resubmission would 

undermine "the power of grand juries, and the right of the 

Government to initiate prosecutions for crime . . . ." 

Thompson, 251 U.S. at 415.

Also, completely denying a prosecutor the right to resubmit 

would deprive the prosecutor of the benefit of a continuing 

investigation that produces additional evidence of guilt. See

Beale, § 8:6 at 8-57. A failure to secure an indictment because 

of insufficient evidence may occur "because the prosecutor for 

strategic reasons decided not to reveal the evidence it had 

already gathered." Andrew Leipold, Why Grand Juries Do Not (and 

Cannot) Protect the Accused, 80 Cornell L. Rev. 260, 291 (1995); 

see also Beale, § 8:6 at 8-57 (noting that barring resubmission 

would penalize the government for presenting "an abbreviated 

version of [its] case for the sake of efficiency and 

convenience"). Preventing a prosecutor from resubmitting would 

also deny a means of correcting a grand jury's "erroneous 
20 A-2058-15T3

refusal" to indict, which "is not subject to judicial review." 

Ibid.5

On the other hand, "allowing re-submissions prevents the 

grand jury from acting as an effective check on the prosecutor," 

and disincentivizes the prosecution from presenting its most 

complete case in what would be its first and only chance for an 

indictment. Ric Simmons, Re-examining the Grand Jury: Is There 

Room for Democracy in the Criminal Justice System?, 82 B.U. L. 

Rev. 1, 19 (2002). Commentators have noted how infrequently 

grand juries actually screen out charges in the first place. 

See, e.g., Leipold, 80 Cornell L. Rev. at 271-72. To permit a 

prosecutor to resubmit charges, even in those rare instances, at 

least absent new and materially different evidence, may dilute 

the grand jury's fundamental role, as stated in Hogan, 144 N.J. 

at 228 (quoting Murphy, 110 N.J. at 29), "to 'protect[] the 

innocent from unfounded prosecution.'"

 

5 For example, if the target of a grand jury presentment enjoys

broad public support, it may be difficult to secure an 

indictment although the State's evidence is strong. See

Leipold, 80 Cornell L. Rev. at 309 (noting that "a refusal to 

indict may also be based on prejudice against the crime victim, 

bias in favor of the target, or other illegitimate reasons").

Preserving discretion to resubmit enables the prosecution to 

combat such grand jury predisposition. Cf. People v. Dykes, 449 

N.Y.S.2d 284, 288 (App. Div. 1982) (stating although 

resubmission should occur sparingly, it is appropriate when a 

grand jury "fail[s] to give a case a complete and impartial 

investigation"). 
21 A-2058-15T3

Just as "repeated attempts to convict an individual . . . 

enhanc[es] the possibility that even though innocent he may be 

found guilty," Abbati, 99 N.J. at 430 (quoting Green v. United 

States, 355 U.S. 184, 187-88 (1957)), repeated resubmissions to 

a grand jury enhances the possibility that an innocent person 

will be indicted. See Niki Kuckes, The Useful, Dangerous 

Fiction of Grand Jury Independence, 41 Am. Crim. L. Rev. 1, 49 

(2004) (contending that the prosecutor's power, rather than the 

grand jury's, is enhanced by the rule that "[t]he prosecutor is 

not bound by one grand jury panel's decision to reject an 

indictment, but can simply seek the same indictment from another 

grand jury panel").

Some courts have indicated that, even in the absence of 

statutory limitations, the power to resubmit is not boundless 

nor immune from judicial control. In Commonwealth v. McCravy, 

the Massachusetts Supreme Judicial Court stated it "would bear 

consideration" whether "submission of the same evidence to 

multiple grand juries would be inconsistent" with the purpose of 

grand juries "to shield 'the innocent against hasty, malicious 

and oppressive public prosecutions.'" 723 N.E.2d 517, 522 

(Mass. 2000) (quoting Jones v. Robbins, 74 Mass. 329, 344 

(1857)). However, the court held that "[r]esubmission of the 

same evidence to two grand juries present[ed] no such 
22 A-2058-15T3

difficulty." Ibid. The court in In re United States, 441 F.3d 

44, 63 (1st Cir. 2006), declined to "decide whether there can be 

some form of impermissible grand jury shopping which would 

warrant court inquiry."

Our Supreme Court has parted with the United States Supreme 

Court's more limiting view of judicial oversight of grand jury 

proceedings. See Hogan, 144 N.J. at 231, 236-37 (rejecting the 

view in Williams, 504 U.S. at 55, and holding that the 

prosecutor is obliged to present clearly exculpatory evidence to 

a grand jury). Consistent with that independent view, as well 

as the principles enunciated in Hogan, Leonardis, and Abbati, we 

are confident our Court would place some limits on successive 

resubmissions, in order to respect the grand jury's screening 

function to shield the innocent; control the abusive exercise of 

prosecutorial discretion; and assure defendants fundamental 

fairness. 

C.

However, we need not map the boundaries of those limits in 

this case. Mindful of the respective roles of the grand jury, 

prosecutor, and court, we conclude the trial court did not err 

in refusing to dismiss the indictment returned by the third 

grand jury. We are satisfied that the State presented new and 

material evidence to that third panel. Notably, the Court in 
23 A-2058-15T3

Abbati addressed the court's exercise of inherent authority to 

dismiss an indictment with prejudice to prevent retrials "where 

no new evidence exists." 99 N.J. at 430. Condon's opinion 

testimony not only corroborated Riedel's testimony, but in some 

respects supplemented it, by providing greater details as to the 

significance of the tools and equipment that defendant and his 

father possessed. 

Moreover, each panel fulfilled a fundamental purpose of the 

grand jury. The first protected defendant from what fewer than 

twelve grand jurors concluded was a well-founded prosecution, 

although the second grand jury found sufficient evidence to 

indict. See R. 3:6-8 (requiring concurrence of twelve or more 

jurors in return of indictment); R. 3:6-1 (requiring grand 

juries not exceeding twenty-three members). The third grand 

jury, based on expanded evidence, brought to trial someone there 

was probable cause to believe committed a crime. 

Also, defendant presents no evidence of an abuse of 

prosecutorial discretion. He exaggerates the record in 

asserting "the prosecutor kept presenting the same evidence to 

different grand juries until a grand jury produced a true bill." 

The State obtained an indictment upon just the second 

presentment. The trial court dismissed the indictment on its 

own motion, based on its understanding that the State was 
24 A-2058-15T3

obliged to present new evidence. The State submitted the matter 

to a third grand jury, adding a witness, evidently to comply 

with the judge's view of the law. Two out of three grand juries 

found, based on the evidence presented, there was probable cause 

defendant committed the crimes charged. This is not a situation 

in which a prosecutor "grand jury shopped" a weak case to 

multiple grand juries until, finally, a compliant panel was 

found. 

Given the substantial weight of the State's evidence, and 

the significance of the crimes alleged, we discern no abuse of 

the prosecutor's broad discretion, let alone a patent and gross 

abuse of discretion, in persisting to seek an indictment against 

defendant after the first, and only the first, grand jury 

declined to return one. See Leonardis, 73 N.J. at 382; Childs, 

242 N.J. Super. at 129. In light of the circumstances, that 

conclusion would apply, even absent the new evidence presented 

to the third grand jury.

The strength of the State's case, and presentation of new 

evidence, would also negate finding that resubmission deprived 

defendant of fundamental fairness. See Abbati, 99 N.J. at 435 

(predicating dismissal of indictment with prejudice after 

successive mistrials "when [the court] determines that the 

chance of the State's obtaining a conviction upon further 
25 A-2058-15T3

retrial is highly unlikely"). Defendant also has not proved 

that the resubmissions here caused him undue "anxiety, vexation, 

embarrassment and expense. . . ." Id. at 430.6 

Finally, defendant does not expressly allege that the 

prosecutor's persistence was motivated by actual vindictiveness. 

Certainly, no presumption of vindictiveness is appropriate. The 

presumption applies when the State seeks superseding enhanced 

charges apparently to retaliate against a defendant who 

successfully exercised his or her appellate rights. See

Blackledge v. Perry, 417 U.S. 21, 27-28 (1974). "The essence of 

the concept of prosecutorial vindictiveness is a violation of 

due process by retaliating against a defendant for exercising a 

legal right." State v. Gomez, 341 N.J. Super. 560, 571 (App. 

Div. 2001). "[N]o presumption of vindictiveness arises in the 

pretrial stage." Id. at 573. Although a due process violation 

can be established by "affirmative proof of actual 

vindictiveness," id. at 578, no such proof was offered here. 

In sum, we reject defendant's argument that resubmission in 

this case warrants dismissal.

 

6 We need not tailor the Abbati factors, see supra note 2, for 

application to this case, and we leave it to other courts to 

determine whether and how they should apply the factors to 

future cases. Given the presentation of new evidence, the 

strength of the State's case, and the lack of apparent negative 

impact on defendant, we discern no deprivation of fundamental 

fairness.
26 A-2058-15T3

D.

We also reject defendant's contention that Riedel's passing 

reference to defendant's admission of "some prior criminal 

history" tainted the grand jury. Riedel explained what prompted 

him to pat down defendant for weapons. He softened defendant's 

actual admissions of prior weapons-related arrests. 

No doubt, trial testimony of such prior bad acts would be 

problematic, even if only offered to demonstrate why Riedel 

patted down defendant, and not to prove defendant's disposition 

to commit crimes, and conforming conduct. See N.J.R.E. 404(b); 

State v. Cofield, 127 N.J. 328, 338 (1992) (establishing test 

for admissibility of prior bad act evidence).7 However, "we have 

upheld the validity of indictments by grand juries presented 

with a variety of evidence that would have been inadmissible at 

trial." Grant, 361 N.J. Super. at 357. That includes prior bad 

act evidence. See State v. Scherzer, 301 N.J. Super. 363, 428-

29 (App. Div. 1997); State v. Engel, 249 N.J. Super. 336, 361 

(App. Div. 1991). Riedel's testimony did not deprive defendant 

of a fundamentally fair grand jury proceeding. 

 

7 A court would need to weigh the prejudice of disclosure of a 

prior criminal history with its probative value. However, 

N.J.R.E. 404(b) does not apply in the grand jury. See In re 

Grand Jury Subpoena Issued to Galasso, 389 N.J. Super. 281, 292 

(App. Div. 2006) (stating the grand jury functions "free from 

the constraints of the rules of evidence and procedure"). 
27 A-2058-15T3

III.

We discern no basis to disturb the trial court's denial of 

defendant's motion to suppress. We defer to the trial court's 

factual findings on a motion to suppress, unless they were 

"'clearly mistaken' or 'so wide of the mark' that the interests 

of justice require[] appellate intervention." State v. Elders, 

192 N.J. 224, 245 (2007). However, we exercise plenary review 

of a trial court's application of the law to the facts. State 

v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999). Applying 

that standard of review, we affirm the trial court's denial of 

the motion to suppress.

First, we shall not disturb the trial court's finding that 

McDowell credibly testified that the truck defendant and his 

father occupied blocked traffic.8 On that basis, the stop was 

lawful. See State v. Locurto, 157 N.J. 463, 470 (1999) (stating 

"a police officer is justified in stopping a motor vehicle when 

he has an articulable and reasonable suspicion that the driver 

has committed a motor vehicle offense") (quoting State v. Smith, 

 

8 Defendant contends that the officer's motor vehicle recorder 

showed that the truck did not cross the fog line into the lane 

of traffic. However, he failed to provide the recording in the 

record on appeal. See Cmty. Hosp. Grp. v. Blume Goldfaden, 381 

N.J. Super. 119, 127 (App. Div. 2005) (stating an appellate 

court is not "obliged to attempt review of an issue when the 

relevant portions of the record are not included"). In any 

event, the officer testified that the truck was depicted inside

the fog line after Senior pulled into the driveway.
28 A-2058-15T3

306 N.J. Super. 370, 380 (App. Div. 1997)); see also N.J.S.A. 

39:4-127 (stating "[n]o vehicle shall back or make a turn in a 

street, if by doing so it interferes with other vehicles"). 

After interacting with defendant and Senior, McDowell and 

Riedel both formed a reasonable and articulable suspicion of a 

plan to commit burglary based on the totality of the 

circumstances. See State v. Gamble, 218 N.J. 412, 432 (2014) 

(stating that a court must determine "whether the totality of 

the circumstances provided the officer with an articulable and 

particularized suspicion that the individual was involved in 

criminal activity, within the context of the officer's relative 

experience and knowledge"). Those circumstances included: 

defendant's and his father's implausible and inconsistent 

responses to permissible, "ordinary inquiries incident to [the 

traffic] stop," see State v. Dunbar, 229 N.J. 521, 533 (2017) 

(quoting Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 

1609, 1615 (2015)); their demeanor; the hour of the day; the 

out-of-state plates and driver's license; their all-black 

attire; and other items in plain view – including the rifle 

case. 

Based on those circumstances, the officers were authorized 

to expand their inquiries, and extend the investigatory stop 

beyond the enforcement of traffic laws. State v. Dickey, 152 
29 A-2058-15T3

N.J. 468, 479-80 (1998). That is so, notwithstanding the 

absence of any other observed criminal behavior, and 

notwithstanding that there may have been an innocent explanation 

for the officers' observations. See State v. Citarella, 154 

N.J. 272, 279-80 (1998) ("The fact that purely innocent 

connotations can be ascribed to a person's actions does not mean 

that an officer cannot base a finding of reasonable suspicion on 

those actions as long as 'a reasonable person would find the 

actions consistent with guilt.'") (quoting State v. Arthur, 149 

N.J. 1, 11 (1997)). Contrary to defendant's assertions, the 

investigatory stop was not "more intrusive than necessary" nor 

was it a "de facto arrest." See Dickey, 152 N.J. 478-79. 

Turning to the warrantless search of the truck's back seat 

and the rifle case, we reject defendant's argument that, because 

Officer Riedel did not inform him of his right to refuse, the 

State failed to establish his consent was knowing and voluntary. 

The State bears the burden to establish knowing and voluntary 

consent; in other words, "that the individual giving consent 

knew that he or she had a choice in the matter." State v. 

Hagans, 233 N.J. 30, 39 (2018) (quoting State v. Carty, 170 N.J. 

632, 639 (2002)). "The lynchpin to voluntary consent 'is 

whether a person has knowingly waived [his or her] right to 
30 A-2058-15T3

refuse to consent to the search.'" Ibid. (quoting State v. 

Domicz, 188 N.J. 285, 308 (2006)).

Consent is "a factual question to be determined from the 

relevant circumstances." State v. Koedatich, 112 N.J. 225, 264 

(1988). Factors that may indicate voluntariness include 

circumstances in which "consent was given where the accused had 

reason to believe that the police would find no contraband," and 

where "the defendant affirmatively assisted police officers." 

Hagans, 233 N.J. at 39 (quoting State v. King, 44 N.J. 346, 353 

(1965)). In Koedatich, the Supreme Court recognized that 

knowing and voluntary consent may be implied by a person's 

conduct during his or her encounter with police. 112 N.J. at 

262-65. That conduct includes a defendant's adoption of a 

"cooperative posture in the mistaken belief that he [or she] 

could thereby divert or prevent police suspicion . . . ." Id.

at 262 (quoting People v. Engle, 164 Cal. Rptr. 454, 463 (Ct. 

App. 1980)). 

Here, defendant undoubtedly wanted to reassure the officer 

that the rifle case did not contain a firearm. Knowing the case 

contained only tools, defendant likely hoped that consenting to 

the search would dispel police suspicion of him. He 

affirmatively invited Riedel to look inside of the case. The 

officer opened the truck's backdoor, removed the case, opened 
31 A-2058-15T3

it, and observed the tools. The warrantless searches of the 

case and the truck ended there. We are satisfied defendant 

knowingly and voluntarily consented to the limited intrusion 

into the truck, and the opening of the rifle case. 

Furthermore, we are satisfied that even absent consent, the 

officers were authorized to perform a search of the rifle case 

under the plain view doctrine. See State v. Johnson, 171 N.J. 

192, 205-07 (2002) (describing the doctrine). Consistent with 

the three elements of the doctrine, the officers were authorized 

to seize and search the case because: (1) they were lawfully 

present in the viewing area, having stopped the vehicle for a 

traffic violation; (2) they inadvertently discovered the case in 

plain view, meaning they did not in advance know they would 

discover it, or intend to seize it;9 and (3) they had probable 

cause to associate the case with criminal activity. See id. at 

206-08 (setting forth the three elements); see also State v. 

Earls, 214 N.J. 564, 592 (2013). We have previously held that 

an officer who saw firearms cases in a vehicle could open the 

door and seize them under the plain view doctrine. State v. 

Reininger, 430 N.J. Super. 517, 535-36 (App. Div. 2013); see 

also State v. Mann, 203 N.J. 328, 340-41 (2010) (approving 

 

9 The inadvertence prong applies to this case, although the Court 

eliminated it prospectively in State v. Gonzales, 227 N.J. 77, 

101 (2016).
32 A-2058-15T3

seizure of drugs in plain view on the back seat of the 

defendant's vehicle).

In light of the foregoing analysis, we need not address the 

State's argument that the search and seizure of the rifle case 

was justified by the protective sweep doctrine. We are 

satisfied the trial court properly denied defendant's motion to 

suppress. To the extent not addressed, his remaining arguments 

on this point lack sufficient merit to warrant discussion. R.

2:11-3(e)(2).

IV.

We are also satisfied that the sentence is not manifestly 

excessive or unduly punitive; the court correctly applied the 

aggravating and mitigating factors; and the sentence does not 

constitute an abuse of discretion. See State v. Cassady, 198 

N.J. 165, 179-81 (2009); State v. Roth, 95 N.J. 334, 364-66 

(1984).

However, as the State concedes, the trial court imposed a 

parole ineligibility period longer than it promised defendant in 

the plea agreement. Furthermore, the court failed to review the 

aggravating and mitigating factors anew, as required, before 

imposing a parole ineligibility period. See State v. Kirk, 145 

N.J. 159, 178-79 (1996); State v. Towey, 114 N.J. 69, 81-82 

(1989). The judgment of conviction also omitted mention of any 
33 A-2058-15T3

parole ineligibility period. Since "the sentencing transcript 

is 'the true source of the sentence,'" State v. Walker, 322 N.J. 

Super. 535, 556 (App. Div. 1999) (quoting State v. Pohlabel, 40 

N.J. Super. 416, 423 (App. Div. 1956)), we presume the JOC's 

omission was an oversight, unless the court expressly states a 

contrary intent. We therefore remand for reconsideration of the 

parole ineligibility period. 

V.

Affirmed as to the conviction. Remanded for reconsideration 

of the minimum period of parole ineligibility. We do not retain 

jurisdiction.