RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2045-20

 A-2087-20

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Plaintiff-Appellant,

v.

KEVIN J. MICUCCI,

Defendant-Appellant/

Defendant-Respondent.

_________________________

Argued (A-2045-20) and Submitted (A-2087-20) 

October 20, 2021 – Decided November 23, 2021

Before Judges Hoffman, Geiger and Susswein. 

On appeal from the Superior Court of New Jersey, Law 

Division, Warren County, Indictment No. 19-08-0276.

Thomas S. Ferguson argued the cause for Kevin J. 

Micucci as appellant in A-2045-20 and as respondent in 

A-2087-20.

Naya A. Tsang, Assistant Prosecutor, argued the cause 

for the State of New Jersey as respondent in A-2045-20 

and as appellant in A-2087-20 (James L. Pfeiffer, 

NOT FOR PUBLICATION WITHOUT THE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-2045-20

Warren County Prosecutor, attorney; Dit Mosco, 

Assistant Prosecutor, of counsel and on the briefs). 

PER CURIAM

The State appeals the trial court's order dismissing without prejudice the 

indictment charging defendant with sexual abuse of his girlfriend's eight-yearold daughter (the child). Defendant also appeals that order, contending the 

indictment should have been dismissed with prejudice.1 We calendared the 

appeals back-to-back and now consolidate them for the purpose of issuing a 

single opinion. 

The prosecution alleges that on multiple occasions, defendant caused the 

child to touch him inappropriately while they were alone before he took her to 

school. The child was unable to specify the dates on which the sexual abuse 

occurred, or when the recurring sexual abuse began or ended. Both appeals 

focus on the specificity of the relevant time frame. The indictment alleges that 

the sexual abuse occurred "on or about between the dates of September 4, 2018 

and May 3, 2019." September 4, 2018, is the first day of the school year in 

which the child attended second grade (the 2018-2019 school year). May 3, 

1

 Both parties moved for reconsideration of the trial court's order to dismiss the 

indictment without prejudice. The trial court denied both reconsideration 

motions, rendering a written opinion, whereupon both parties filed separate 

appeals. 
3

A-2045-20

2019, is the day the child first reported the sexual abuse to her grandmother. 

That day falls within the 2018-2019 school year. 

Defendant moved to dismiss the indictment with prejudice, arguing that it 

failed to provide adequate notice as to the time frame of the alleged sexual abuse. 

He also argued that the prosecutor committed misconduct in presenting the case 

to the grand jury by (1) failing to introduce one of the two videorecorded 

interviews of the child, and (2) eliciting testimony from the lead detective that 

misled the grand jury by mischaracterizing and overstating the specificity of the 

child's statements as to when the alleged sexual abuse occurred. 

The trial court rejected defendant's due process argument that the 

indictment failed to provide adequate notice. The court determined, however, 

that the assistant prosecutor presenting the matter to the grand jury intentionally 

misled the grand jury with respect to statements the child made during two 

interviews conducted by a Warren County Prosecutor's Office detective. The 

trial court found that during the grand jury presentation, the assistant prosecutor 

posed confusing questions to the detective that were designed to make it appear 

that the child had provided a definitive and specific time frame as to when the 

sexual abuse occurred. The court also found that the assistant prosecutor 

compounded the false impression created by the detective's testimony by 
4

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choosing not to present a videorecording of the second interview of the child. 

The trial court reasoned that viewing the second recording would have shown 

the grand jury the child's inability to provide detailed information about when 

the recurring sexual abuse started and ended. The trial court concluded that 

these two decisions—to pose misleading questions to the detective on the 

witness stand and to omit the recording of the second interview from the 

evidence presented to the jury—together amounted to prosecutorial misconduct. 

The court concluded this misconduct infringed upon the grand jury's decisionmaking function and warranted dismissal of the indictment without prejudice, 

thereby requiring the State to re-present the case to another grand jury. 

After carefully reviewing the record in light of the arguments of the parties 

and the governing principles of law, we reverse and vacate the trial court's 

decision to dismiss the indictment. Although the court issued a commendably 

thorough written opinion, it did not view the evidence presented to the grand 

jury in the light most favorable to the State. The child consistently stated that 

the criminal sexual contact incidents happened repeatedly after her mother left 

the house with the other children and before defendant took her to school. That 

testimony supported an inference that the unlawful acts occurred on school days. 

While the child repeatedly told the detective the alleged sexual abuse began 
5

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sometime before the start of the 2018-2019 school year, her statements do not 

indicate that the ongoing and repetitive alleged sexual misconduct did not 

continue during that school year. 

During the second interview, moreover, the detective asked the child: "But 

it happened during this school year [referring to the ongoing 2018-2019 school 

year]?" The child answered: "Yeah and I think it's probe [sic] uh I'm pretty sure 

it was more than that." This answer provides an adequate foundation upon 

which the detective could testify that the child stated that inappropriate touching 

occurred during the 2018-2019 school year. Although other answers the child 

gave in both the first and second interviews do not specifically link the recurring 

sexual abuse to that particular school year, she at no time stated definitively that 

acts constituting sexual abuse did not occur during the 2018-2019 school year. 

In these circumstances, we do not believe the indictment was palpably 

deficient in narrowing the time frame of the alleged criminal acts. Because we 

hold that there was no basis upon which to dismiss the indictment without 

prejudice, we necessarily reject defendant's contention that the indictment 

should have been dismissed with prejudice. 
6

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I.

We briefly summarize the pertinent facts and procedural history. On May 

3, 2019, the child and her younger sister were playing after school while their 

maternal grandmother babysat. The grandmother overheard the two girls talking 

about "rubbing daddy's leg." The grandmother asked the child to repeat what 

she had said. The child revealed that defendant had been causing her to "rub his 

legs" and "touch his 'thing'" when she was alone with him in the morning before 

school. The grandmother apprised the child's mother when she arrived home. 

The mother and the child's biological father immediately took the child to the 

police station to make a report. Interviews were scheduled for the following 

Monday, May 6, 2019. On that date, a Warren County Prosecutor's Office

detective interviewed the child, her mother, the grandmother, and the younger 

sister. 

During the May 6 interview (first interview), which was electronically 

recorded and presented to the grand jury, the child was unable to recall the dates 

when the alleged sexual abuse began and ended. She was, however, consistent 

in stating that the incidents happened on school days during the time between 

when her mother left the house with the other children and when defendant took 

her to school.
7

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On May 9, 2019, the detective conducted a second recorded interview of 

the child (second interview or follow-up interview) in an attempt to narrow the 

time frame during which the alleged sexual abuse occurred. Although the child 

was once again clear about the specific time of day of the alleged acts of sexual 

abuse, she was unable to remember anything that linked a particular incident of 

sexual contact to a specific calendar event.2 The child again was unable to 

specify when the alleged sexual abuse began or ended. However, as we have 

noted, the child affirmatively responded to the detective's question pertaining to 

whether the sexual abuse "happened during this school year." 3 

2

 During the second interview, the detective attempted to narrow the timeline of 

the abuse by asking the child if she remembered whether any of the incidents 

happened: 1) during that school year; 2) between September and May; 3) in the 

summer; 4) around the child's sister's birthday in April; 5) while the child was 

eight years old; and 6) since the child had turned eight years old in January. The 

detective's questions were unsuccessful in narrowing the relevant timeline. We 

note that, although the child could not tie any particular sexual contact incident 

to an event or a specific date, she did link all the alleged acts of sexual abuse to 

her school morning routine. 

3

 During the second interview, the following exchange occurred: 

Detective: Was all right so we talked about um this 

happening during this school year

Child: Mmhmm

Detective: You said it might have been a little longer 

maybe in the summer

Child: It might have been a lot longer a little bit 

longer
8

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On May 9, 2019, defendant was arrested at his workplace and charged by 

complaint with two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) 

and one count of second-degree endangering the welfare of a child, N.J.S.A. 

2C:24-a(1). 

The matter was presented to the grand jury on August 19, 2019. The State 

presented only one live witness: the Warren County Prosecutor's Office

detective who was the lead investigator and who had conducted both interviews 

of the child. The State also introduced into evidence the May 6, 2019,

videorecorded interview of the child. Although the grand jury was informed 

that a second interview had been conducted, jurors were not shown the 

videorecording of the May 9, 2019, follow-up interview. The grand jurors posed 

no questions about the second interview and did not request the prosecutor to 

play the recording for them. 

During the grand jury presentation, the following exchange occurred 

between the assistant prosecutor and detective: 

Prosecutor: Did you learn as part of the investigation 

what grade the victim...was in?

Detective: When I interviewed her she was in the 

[second] grade.

Prosecutor: Okay. So she was in her second grade 

school year, from September 2018 to May [3], 2019?
9

A-2045-20

Detective: Correct

Prosecutor: Okay. And she indicated in her interview 

with you that this [referring to sexual acts] had been 

going on during that school year, correct?"

Detective: Correct. 

The grand jury returned a three-count indictment charging defendant with 

two counts of sexual assault of a child less than thirteen years of age, N.J.S.A. 

2C:14-2(b), and one count of endangering the welfare of a child, N.J.S.A. 2C:24-

4a(1). All three counts were alleged to have occurred "on or about between the 

dates of September 4, 2018 and May 3, 2019."

Defendant filed a motion to dismiss the indictment with prejudice. He 

argued that the time frame presented by the prosecution afforded inadequate 

notice to allow him to prepare a defense, and thus violated his due process rights. 

He also argued that the prosecutor committed misconduct by failing to play the 

recording of the second interview to the grand jury. Defendant further asserted 

that the child's inability to specify the start and end dates of the alleged sexual 

abuse was clearly exculpatory. He also argued that the confusing questions the 

assistant prosecutor posed to the detective misled the grand jury into believing 

that the child said the abuse happened during her second-grade school year when 

in fact, according to defendant, she made no such definitive statement. 
10 A-2045-20

On January 6, 2021, the trial court heard oral argument on defendant's 

motion to dismiss after which the court rendered a ruling on the record. The 

trial court concluded, "It is clear to the [c]ourt that the State lacks any form of a 

definitive timeline as it relates to the alleged offenses." The trial court 

nonetheless recognized that "[such lack of a definitive timeline] by itself is not 

sufficient to dismiss an indictment." 

While acknowledging that leading questions are permitted in the grand 

jury, the trial court found that the questions posed by the assistant prosecutor to 

the detective were "clearly...intentionally confusing" and that the detective's 

simple affirmative answers were misleading in suggesting that the child had

specified that sexual contact incidents occurred within the 2018-2019 school 

year.

Specifically, the court explained, 

By asking questions in this manner... the Grand Jury 

was intentionally misled, rendering the Indictment 

palpably defective due to the misleading nature of the 

questions and subsequent answers. The Victim only 

ever indicated that the alleged offenses occurred in the 

morning before school from which perhaps an inference 

could be drawn that it happened during a school year, 

however, she could not say it was during the current 

schoolyear, or a prior school year, and she never said 

that it happened during this second grade school year as 

was presented to the Grand Jury by way of the 

Detective's 'Yes' answer. 
11 A-2045-20

The court also questioned the prosecutor's decision not to play the 

recording of the second interview to the grand jury and the motive for that 

decision. The court noted that while it "is the State's right to decide which 

evidence to present[,]" they "also have a duty to present clearly exculpatory 

evidence that directly negates an element of the crime." The court did not find, 

however, that the statements the child made at the second interview were clearly 

exculpatory. Rather, the court remarked that the second interview was 

"borderline exculpatory."4 The trial court also found that the second interview 

was "full of contradictory responses by the Victim, with no single statement 

indicating that the alleged abuse occurred during the school year that started in 

September 2018. If any conclusions could be drawn, it [was] that the Victim 

was uncertain when the alleged abuse began, when it ended, or when it occurred 

last." 

The court concluded:

the State chose to bolster its argument for an indictment 

using an interview of the Victim, while choosing not to 

show the recording to the Grand Jury based only upon 

the testimony of [the detective]. A recording, that if 

nothing else, raises questions and contradictions which 

very possibly could have swayed the Grand Jury to 

4

 As we have already noted on multiple occasions, it was during the second 

interview that the child made what we refer to as the "yeah" response, indicating 

to the detective that the sexual abuse "happened during this school year." 
12 A-2045-20

decide not to indict based upon the contradictory 

statements and the overall lack of timeline. While these 

statements in the second interview may not directly 

negate an element of a crime, [they are] at the very least 

borderline exculpatory based on their very nature. The 

[c]ourt finds that by suggesting to the Grand Jury by the 

Detective's testimony that the interview, which the 

State chose not to show, clarified the statement of the 

Victim from the first interview, which it clearly did not, 

is intentionally misleading and therefore, necessitates 

the granting of the Defendant's Motion to Dismiss the 

Indictment. The [c]ourt finds that by the State 

attempting to walk a fine line in its presentation to the 

Grand Jury they intentionally misled the Grand Jury 

and usurped their decision-making authority. 

The court thereupon granted defendant's motion to dismiss the indictment 

but did so without prejudice. 

Both defendant and the State filed motions for reconsideration. The court 

denied both motions on February 23, 2021,5rendering a lengthy written opinion. 

The written opinion repeats and amplifies the same reasoning as the court had 

stated in its oral ruling. 

With respect to the State's argument regarding when the alleged sexual 

abuse occurred, the trial court in its written opinion noted:

5 The court initially issued its order denying the State's motion for 

reconsideration on February 23, 2021. The caption of that order failed to 

indicate that the court also was denying defendant's motion for reconsideration. 

A corrected order was issued on March 29, 2021. 
13 A-2045-20

This matter was presented to the Grand Jury and, 

despite the inability of the Victim to give a direct and 

definitive answer stating that the alleged abuse 

occurred during her second-grade school year, [the 

detective] affirmed to the Grand Jury that the Victim 

stated that the incidents occurred during [her second

grade] school year. Thus, the [c]ourt finds that the State 

has failed to demonstrate that this [c]ourt based its 

opinion upon a palpably incorrect or irrational basis, or 

a failure to consider or appreciate the significance of 

the probative, competent evidence. 

The court's written opinion also addressed defendant's motion for 

reconsideration. Defendant "assert[ed] that there was no fair notice given by the 

State of the time period in which the alleged offense occurred." Citing State in 

the Interest of K.A.W., 104 N.J. 112 (1986), defendant argued "that the 

transcripts failed to establish or prove which dates the alleged sexual abuse 

occurred with any specificity."

The trial court rejected defendant's argument:

The Defendant conflates the inability to prove the 

specific instances with failing to give the Defendant fair 

notice of the timeframe of the accusation. [Ibid.]

(remanding the case to proceed within the fair notice 

standard where the State could charge, "'four or five 

occurrences' within a 20-month period."). The [c]ourt, 

in discussing the Indictment and denying the motion for 

reconsideration before it, refrains from ruling on the 

fair notice issue raised by Defendant because it is moot.
14 A-2045-20

II.

Our review of the dismissal of an indictment is guided by well-established 

legal principles. In State v. Campione, 462 N.J. Super. 466 (App Div. 2020), 

we recently summarized those principles, explaining:

An indictment is presumed valid and should only 

be dismissed if it is manifestly deficient or palpably 

defective. A motion to dismiss is addressed to the 

discretion of the trial court and that discretion should 

not be exercised except for the clearest and plainest 

ground.

At the grand jury stage, the State is not required 

to present enough evidence to sustain a conviction. As 

long as the State presents some evidence establishing 

each element of the crime to make out a prima facie 

case, a trial court should not dismiss an indictment. In 

a nutshell, a court examining a grand jury record should 

determine whether, viewing the evidence and the 

rational inferences drawn from that evidence in the 

light most favorable to the State, a grand jury could 

reasonably believe that a crime occurred and that the 

defendant committed it. 

[Id. at 492 (citing State v. Feliciano, 224 N.J. 351, 380–

81 (2016)).]

Our Supreme Court has also provided instruction on when an indictment 

may be dismissed based on prosecutorial misconduct. In State v. Murphy, the 

Court stressed, "An indictment should be dismissed only on 'the clearest and 

plainest ground.'" 110 N.J. 20, 35 (1988) (quoting State v. N.J. Trade Waste 
15 A-2045-20

Ass'n, 96 N.J. 8, 18 (1984)). The Court added, "'Unless the prosecutor's 

misconduct . . . is extreme and clearly infringes upon the [grand] jury's decisionmaking function, it should not be utilized . . . to dismiss[] an indictment.'" Ibid.

(alterations in original) (quoting State v. Schamberg, 146 N.J. Super. 559, 564 

(App. Div. 1977)). 

That standard is consistent with the notion that dismissal of an indictment 

is an extraordinary remedy. See State v. Williams, 441 N.J. Super. 266, 271-72 

(App. Div. 2015). "[A]n indictment should not be dismissed unless the 

prosecutor's error was clearly capable of producing an unjust result. This 

standard can be satisfied by showing that the grand jury would have reached a 

different result but for the prosecutor's error." State v. Majewski, 450 N.J. 

Super. 353, 365-66 (App. Div. 2017) (citing State v. Hogan, 336 N.J. Super. 

319, 344 (App. Div. 2001)).

We add that the prosecution "may not deceive the grand jury or present its 

evidence in a way that is tantamount to telling the grand jury a 'half-truth.'" State 

v. Hogan, 144 N.J. 216, 236 (1996). The Court in Hogan explained, "the grand 

jury cannot be denied access to evidence that is credible, material, and so clearly 

exculpatory as to induce a rational grand juror to conclude that the State has not 

made out a prima facie case against the accused." Ibid. The grand jury thus 
16 A-2045-20

must be presented with evidence whose absence would cause "a distorted 

version of the facts... and interfere[] with the grand jury's decision-making 

function." Ibid. (internal citations omitted). This standard, however, "is 

intended to be applied only in the exceptional case in which a prosecutor's file 

includes not only evidence of guilt but also evidence negating guilt that is 

genuinely exculpatory." Id. at 237. "Moreover, courts should dismiss 

indictments on this ground only after giving due regard to the prosecutor's own 

evaluation of whether the evidence in question is 'clearly exculpatory.'" Id. at 

238. "The prosecutor's duty [to present exculpatory evidence] arises only if the 

evidence satisfies two requirements: it must directly negate guilt and must also 

be clearly exculpatory." Id. at 237.

III.

We next apply these general principles to the present case. At the risk of 

undue repetition, we reiterate that the record shows that at one point during the 

second interview, the child expressly—albeit cursorily—acknowledged that 

sexual abuse occurred during the 2018-2019 school year. We repeat verbatim 

that critical exchange during the second interview:

Detective: But it [referring to the alleged sexual 

contact] happened during this school year?
17 A-2045-20

Child: Yeah and I think it's probe [sic] uh I'm pretty 

sure it was more than that.

We interpret "yeah" as an affirmative response to the detective's question. 

There is no doubt that the detective's reference to "this school year" means the 

school year that was ongoing at the time of the interview, that is, the 2018-2019 

school year. And while the child added that "I'm pretty sure it was more than 

that," indicating the sexual abuse occurred before the then-current school year, 

the clear implication is that the abuse occurred both before and during the 2018-

2019 school year. 

It is true, as the trial court emphasized, this was the only time during either 

interview that the child indicated the abuse continued into the 2018-2019 school 

year. She never repeated this affirmative response with respect to a particular 

school year. Nor did she rescind it, expressly or implicitly. Her brief but 

unambiguous "yeah" response provides a foundation upon which to support the 

detective's grand jury testimony that the child had stated that sexual abuse 

occurred at some time during the course of that school year. That testimony, 

viewed in the light most favorable to the State, see Campione, 462 N.J. Super. 

at 492, provides an adequate evidential basis for the time frame specified in the 

indictment. 
18 A-2045-20

We do not disagree with the trial court's finding that throughout both 

interviews, the child was confused and thought the detective was asking about 

when the sexual abuse first began. Her other responses in that sense could fairly 

be characterized as inconsistent with the "yeah" response in that they did not 

directly and expressly state that acts of sexual contact occurred during the 2018-

2019 school year. We do not agree, however, that the child ever "contradicted" 

her "yeah" response. The interview transcripts make clear that the child could 

not recall in either interview when the sexual abuse started or ended. But she 

never definitively stated that no act of sexual abuse occurred during the 2018-

2019 school year. She never stated, for example, that the abuse stopped before 

the start of that school year. Indeed, she never indicated when the alleged sexual 

abuse last occurred. 

We do not dispute that the child's apparent confusion, inability to recall 

details about the time frame, and repeated equivocations, undermine confidence 

in her recollection as to the timing of events. Her uncertainty and confusion 

expressed during both interviews will no doubt be highlighted at trial and closely 

scrutinized during cross-examination. But the prosecution was not required to 

present the grand jury with enough evidence to sustain a conviction. See
19 A-2045-20

Feliciano, 224 N.J. at 380-81 (noting "some evidence establishing each element 

of the crime" is sufficient to protect an indictment from dismissal). 

That conclusion does not end our review of the grand jury presentation. 

By all accounts, the compound leading questions the assistant prosecutor posed 

to the detective were confusing. We must decide whether those questions were 

intentionally designed to mislead the jury as to what the child stated during her 

interviews, and whether any such misconduct was sufficiently extreme as to 

infringe upon the grand jury's decision-making function and thus warrant 

dismissal of the indictment. See Murphy, 110 N.J. at 35. 

We note that while the recording of the second video was not played, the 

jury was aware that there had been a second interview. They were told, 

moreover, that the follow-up interview was conducted for the purpose of 

clarifying the timeline. See note 2, supra. We focus on the following exchange 

during the grand jury presentation:

Prosecutor: And was that [second interview] for the purpose to –

clarify a timeframe with regards to [the child's] disclosure?"

Detective: Yes. 

...

Prosecutor: And that — again that timeframe that you discussed 

with her in the second interview was that it occurred during her 
20 A-2045-20

school year that started in September of 2018 and she was still in 

the school year it was that 2nd grade, correct?

Detective: Yes 

The trial court found this testimony to be misleading, asserting that at no 

point did the child "definitively affirm that the alleged abuse occurred during 

her second-grade school year." Rather, the trial court stressed that she repeated 

the alleged abuse began sometime before the 2018-2019 school year. We 

disagree that the child had not sufficiently affirmed that the sexual abuse also 

occurred during the school year while she was in second grade. 

We acknowledge that the grand jurors had the benefit of watching the 

recording of the first interview and could decide for themselves whether and to 

what extent the child equivocated as to the timeline of the abuse. The grand jury 

did not have the same opportunity with respect to the second interview.6 

The trial court acknowledged that nothing in that follow-up interview was 

clearly exculpatory within the meaning of the rule announced in Hogan, 144 N.J. 

at 237. As the trial court correctly noted, the second interview did not negate 

an element of the crime. The court characterized the video as being "borderline 

6

 We note again that the grand jury had the opportunity to ask questions 

pertaining to the second interview, or to request that it be played, but did not do 

so.
21 A-2045-20

exculpatory." We certainly agree the recording of the second interview was not 

clearly exculpatory and thus need not have been presented to the grand jury. See

Hogan, 144 N.J. at 237. Although the second interview does reveal the child's 

confusion, and is arguably helpful to the defense, we emphasize that this 

recording also includes the child's "yeah" response. Therefore, if the second 

interview was introduced to the grand jury, as well as viewed in the light most 

favorable to the State, it would have provided direct evidentiary support for the 

time frame specified in the indictment. We do not interpret her repeated 

statements that the alleged sexual abuse started before the 2018-2019 school 

year to mean the abuse stopped before the start of said school year. Indeed, as 

we have noted, the record makes clear that the child could not recall when the 

alleged sexual abuse ended.

While it is unclear to us why the prosecutor chose not to introduce the 

recording of the second interview, we discern no stratagem to intentionally 

mislead the grand jury. Nor do we view the assistant's prosecutor's questions to 

the detective as constituting intentional misconduct. Although the detective's 

testimony may have oversimplified, and thus overstated the clarity of the child's 

statements regarding the relevant time frame, we are satisfied that the 

prosecutor's questions to the detective did not rise to the level of "extreme 
22 A-2045-20

prosecutorial interference with the grand jury's decision-making process," nor 

constitute an "intentional subversion of the grand jury process." Murphy, 110 

N.J. at 35.

We are also not convinced that the grand jury "would have reached a 

different result but for the prosecutor's error." Majewski, 450 N.J. Super. at 

355–56. Had the prosecutor played the recording of the second interview, the 

jury would have learned that the child remained uncertain as to when the alleged 

sexual abuse began and ended. But nothing in the second interview eviscerated 

the reasonable inference that at least some alleged acts of sexual conduct 

occurred during the course of the 2018-2019 school year, especially in light of 

her repeated statements that the incidents of sexual contact occurred during her 

morning routine on school days. Whether the State may have difficulty 

ultimately proving at trial when the alleged sexual contact occurred does not 

mean that the prosecutor intentionally misled the grand jury or that the 

indictment is palpably deficient. 

We also deem it important, for purposes of assessing defendant's 

prosecutorial misconduct claim, that the prosecutor sought to limit, not expand, 

the time frame of the recurring acts of alleged sexual abuse. In K.A.W., the 

Court noted that, "[t]he aim is to narrow the time frame of the occurrence as 
23 A-2045-20

complained of—if not to the extent of an exact date or dates, then possibly in 

respect of seasons of the year." 104 N.J. at 122–23. We believe the prosecutor's 

effort to narrow the time frame comports with the goal expressed in K.A.W. 

IV.

We turn next to defendant's challenge to the trial court's order to dismiss 

the indictment without prejudice. Defendant raises the following contentions 

for our consideration: 

POINT I. 

THE SWORN TESTIMONY OF J.B. BLATANTLY 

CONTRADICTS THE STATE'S INDICTMENT

(Raised below)

POINT II.

THE STATE'S COMPLAINT AND INDICTMENT 

ARE NOT SPECIFIC [AS] THEY CONTRADICT 

THE EXPRESS LANGUAGE OF THE 

INDICTMENT. THAT REQUIRES A REVIEW OF 

BOTH THE MAY 6, 2019 STATEMENT AND THE 

MAY 9, 2019 STATEMENT OF THE ALLEGED 

VICTIM

(Raised below)

POINT III.

THE TRIAL COURT WAS CORRECT IN DENYING 

THE STATE'S MOTION FOR RECONSIDERATION

(Not raised below)

A. CRIMINAL COURTS ONLY PERMIT TO FILE A 

MOTION FOR RECONSIDERATION IN LIMITED 

CONTEXTS
24 A-2045-20

B. IF THE COURT FINDS THE MOTION FOR 

RECONSIDERATION IS PROPER, THE STATE'S 

APPLICATION MUST STILL BE DENIED

C. THE COURT'S DETERMINATION THAT J.B.'S 

STATEMENT CONTAINED CONTRADICTIONS 

CANNOT BE OVERTURNED BY A MOTION FOR 

RECONSIDERATION

(Raised below)

D. THE COURT PROPERLY DETERMINED J.B. 

SPECIFICALLY DENIED THE SEXUAL ABUSE 

OCCURRED WHEN SHE WAS EIGHT (8) YEARS 

OLD

(Raised below)

E. AS A PRELIMINARY MATTER, THE COURT 

MUST DETERMINE JURISDICTION UNDER RULE

1:7-4(B) 

(Raised below)

POINT IV. 

COUNT 3 OF THE INDICTMENT REQUIRES 

DISMISSAL BECAUSE THE VICTIM DENIED IT 

HAPPENED AND CANNOT INDICATE WHEN IT 

HAPPENED 

(Not raised below)

POINT V. 

THE TRIAL COURT FAILED IN BOTH INSTANCES 

TO MAKE FINDINGS OF LAW PURSUANT TO 

RULE 1:7-4 

(Not raised below)

Defendant also raises the following points in his reply brief in A-2045-20:

N.J. LAW REQUIRES ACCURATE "TIME" 

INFORMATION SET FORTH IN A COMPLAINT AS 
25 A-2045-20

INFORMED BY THE DETAILS DISCLOSED IN 

THE STATE'S INVESTIGATION

(Raised below)

THE TIME INFORMATION IN THE INTERVIEW 

OF J.B. OF MAY 6, 2019 AND MAY 9, 2019

THE TRIAL COURT FAILED TO APPLY THE 

BALANCING TEST OF K.A.W. AS TO CHARGING 

DECISIONS

(Raised below)

THE DEFENDANT RELIES ON THE LEGAL 

ANALYSIS OF THE [TRIAL COURT,] FOUND IN 

HIS ORDER AND OPINION DATED AUGUST 21, 

2020

(Raised below)

Defendant additionally raises the following points in his reply brief in A2087-20:

THE INDICTMENT SHOULD BE DISMISSED WITH 

PREJUDICE IN THAT THE STATE CANNOT 

ESTABLISH A TIMELINE

(Raised below)

THE ARGUMENT OF THE STATE THAT THE 

TESTIMONY OF J.B. IS CLEAR AND CONCISE AS 

TO SATISFY THE LAW UNDER K.A.W. IS 

WITHOUT MERIT

(Raised below)

THE TRIAL COURT CONCLUDED THAT THE 

STATE LACKS ANY FORM OF A TIMELINE

(Raised below)
26 A-2045-20

THE TRIAL COURT CORRECTLY DISMISSED 

THE INDICTMENT BECAUSE IT WAS BASED ON 

BLATANT MISREPRESENTATIONS BY THE 

STATE TO THE GRAND JURY

(Raised below)

THE STATE'S ARGUMENT THAT THE MAY 9, 

2019 INTERVIEW WAS GIVEN TO THE GRAND 

JURY IS FRIVOLOUS

(Raised below)

We have already addressed most of defendant's contentions in our 

discussion of the State's challenge to the dismissal of the indictment without 

prejudice. For the most part, defendant's arguments are subsumed in our 

decision to vacate the trial court's order to dismiss the indictment without 

prejudice. If there is no basis to dismiss the indictment without prejudice, which 

would allow the prosecutor to re-present that matter to another grand jury, there

could be no basis to dismiss the indictment with prejudice, thereby precluding 

another indictment and effectively affording defendant transactional immunity 

for the alleged sexual abuse of the child. 

We focus on defendant's contention that the eight-month time frame 

specified in the indictment provides inadequate notice to enable defendant to 

prepare a defense. We affirm the trial court's ruling that the indictment does not 

violate defendant's due process rights. We do so substantially for the reasons 
27 A-2045-20

expressed by the trial court in its oral decision and subsequent written opinion 

denying defendant's motion for reconsideration. We add the following: 

Our Supreme Court spelled out the analytical framework for addressing 

this constitutional issue in K.A.W., 104 N.J. at 112. The Court specifically 

addressed 

whether a complaint in a juvenile delinquency action, 

charging sexual assault on a victim younger than 

thirteen years of age, must specify an exact date of 

occurrence. The answer to that question is "no." For 

constitutional due process purposes, the adequacy of a 

charge set forth in a juvenile delinquency complaint, as 

in a criminal indictment, turns on whether the notice 

contained in the complaint sufficiently apprises the 

accused of the offense with which he [or she] is charged 

to enable him [or her] to prepare a defense.

[Id. at 113–14.] 

The Court rejected the Appellate Division holding that a complaint must 

set forth a specific date or dates of the offense, concluding instead that "'fair 

notice' in this context is not concerned exclusively with the specificity of a date 

of offense." Id. at 114. 

In that case, the juvenile complaint originally alleged that the acts of 

sexual assault occurred "in midyear 1984," but was amended to allege that the 

sexual assaults occurred "on divers dates from January 1983 through August 

1984." Id. at 115. The juvenile argued that this time frame left him unable to 
28 A-2045-20

construct a defense, prejudicing him because he had visited his mother in 

Virginia for a good portion of that time period and thus had a potential alibi for 

at least part of the time period during which the divers dates fell. Id. at 116. 

The Court recognized the need to balance the State's interest in the 

vigorous prosecution of child abusers against the accused's interest in receiving 

adequate notice of the offense to permit him or her to prepare a defense. Id. at 

119. The victim was seven years old when the sexual assaults allegedly took 

place. The Court recognized that a victim may be "so young as to make it wellnigh impossible to state the exact time of that offense." Id. at 118 (emphasis in 

original). The Court explained "our concern is with the specificity required, in 

the interest of fairness, at the charging stage of the proceeding." Ibid. The Court 

added:

In gauging that fairness we need no battery of experts 

to convince us that a child of the age of five to seven 

years . . . cannot recall precise dates or even 

approximate times the way a normal adult can. 

Children of that age do not think in terms of dates or 

time spans. Unlike adults, their lives are not controlled 

by the clock or the calendar—at least not as rigidly and 

surely not as consciously. 

[Ibid.]

The Court went on to provide an analytical paradigm to balance the 

competing interests. First, the Court focused on whether the State had disclosed 
29 A-2045-20

all the information it possessed about when the acts of sexual abuse occurred. 

In that case, as in the one presently before us, there was full disclosure. Ibid. 

The Court made clear, however, that full disclosure was not enough to avoid 

dismissal. The Court recognized there could be no fixed, precise standards to 

guide the resolution of the issue. The Court instead presented "some general 

criteria to aid a court in its review of the adequacy of 'time' information set forth 

in a complaint, as informed by the details disclosed in the State's investigation." 

Id. at 121-22. 

The Court then provided an illustrative list of relevant factors, including 

"the length of the alleged period of time in relation to the number of individual 

criminal acts" and "the ability of the victim or complaining witness to 

particularize the date and time of the alleged transaction or offense." Id. at 122 

(quoting People v. Morris, 61 N.Y.2d 290, 296 (1984)). The list also includes 

"the age and intelligence of the victim, the extent and thoroughness of the 

prosecutor's investigative efforts to narrow the time frame of the alleged offense, 

and whether there was a continuous course of conduct." Ibid. Importantly for 

purposes of the present appeal, the Court emphasized that, 

[t]he aim is to narrow the time frame of the occurrence 

as complained of—if not to the extent of an exact date

or dates, then possibly in respect of seasons of the year, 

or incidents in the victim's life such as a death in the 
30 A-2045-20

family, or a change in a family member's job routine, or 

the beginning of the school year or of vacation time or 

of extracurricular activities. 

[Id. at 122-23.]

The Court further stressed that "to the extent the juvenile or criminal 

defendant makes known his [or her] defense—here, non-involvement, 

supplemented by an alibi for a brief period during the [twenty]-month span—

that too may be placed in the scales." Id. at 123. The Court added 

that an alibi defense might suffer in the face of an 

extended time frame does not constitute a sufficient 

basis for dismissal of a complaint in this context, where 

a 'number of occasions' of misconduct are alleged. It 

may be pertinent in this regard that whereas the 

opportunity to victimize an infant is enhanced by a 

degree of family relationship or sharing of living 

quarters or frequency of contact, by the same token the 

likelihood of the victim being able to recount a specific 

time of the offenses is reduced. The events blur.

[Ibid.] 

Applying these factors to the present case, we are satisfied the prosecutor 

made considerable investigative efforts to narrow the time frame. 

We note also that in the matter before us, defendant has not suggested that 

he intends to rely on an alibi defense. Nor does such a defense seem plausible 

given the nature of the allegations. We surmise that the defense in this case will 

not be that defendant was not home alone with the child before he took her to 
31 A-2045-20

school. Rather, we expect the gravamen of the defense to be that the child was 

not telling the truth, or at least was mistaken, in describing the touching alleged 

by the State to constitute "sexual contact" as defined in N.J.S.A. 2C:14-1(d). 

The lack of specificity of the timeline does not prevent defendant from preparing 

to mount that defense. 

In sum, we agree with the trial court that the time frame specified in the 

indictment affords defendant sufficient notice to permit him to prepare a defense 

to the charge of repeated acts of sexual abuse. Given the allegation of repeated 

incidents of sexual abuse on mornings before defendant took the child to school, 

we believe that requiring an eight-year-old child in these circumstances to be 

more specific "would effectively preclude prosecution of those who have 

sexually abused children who are unable to specify a date." Id. at 12. Of course, 

defendant at trial will be free to highlight the child's inability to recall aspects 

of the alleged sexual abuse. But the indictment provides sufficient notice to 

allow defendant to prepare his defense and to cross-examine the child. 

To the extent we have not specifically addressed them, any remaining 

arguments raised by defendant lack sufficient merit to warrant discussion in this 

opinion. R. 2:11-3(e)(2).
32 A-2045-20

Affirmed in part and reversed in part.