SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2855-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAANDRE J. WADE,

Defendant-Appellant.

_______________________

Argued September 29, 2022 – Decided October 25, 2022

Before Judges Haas and Gooden Brown.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Middlesex County, 

Indictment No. 19-07-1173.

Simon Wiener, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Simon Wiener, of counsel 

and on the briefs).

Joie D. Piderit, Assistant Prosecutor, argued the cause 

for respondent (Yolanda Ciccone, Middlesex County 

Prosecutor, attorney; Joie D. Piderit, of counsel and on 

the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

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

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

By leave granted, defendant appeals from the May 3, 2022 Law Division 

order denying his motion to dismiss two unlawful gun possession counts charged 

in a three-count indictment. In a May 10, 2022 sua sponte order, we stayed the 

trial "until further order of this court." 

On appeal, in a single point, defendant presents the following arguments

for our consideration:

THE TRIAL COURT ERRED BY DENYING 

[DEFENDANT'S] MOTION TO DISMISS THE 

INDICTMENT AS TO COUNTS [ONE] AND [TWO]

BECAUSE THERE WAS NO EVIDENCE OF 

[DEFENDANT'S] GUILT UNDER THE 

ACCOMPLICE-LIABILITY THEORY THE STATE 

EXPLICITLY TOLD THE GRAND JURY TO APPLY 

AND BECAUSE THE PROSECUTOR'S 

VACILLATING EXPLANATIONS INTERFERED 

WITH THE GRAND JURY'S DECISION-MAKING 

PROCESS.

A. Because the State Must Abide by Its 

Own Explanation of the Applicable Law to 

the Grand Jury and Its Inclusion of 

Accomplice Liability in the Indictment, It 

Could Not Retreat from Its Choice to 

Instruct the Grand Jury to Consider Only a 

Theory of Accomplice Liability.

B. The State Provided No Evidence to the 

Grand Jury that Could Support Accomplice 

Liability, Warranting Dismissal of the 

Indictment.
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1. Generally, Accomplice Liability 

Is Conceptually Inconsistent with 

Possessory Weapons Offenses.

2. Even If Accomplice Liability 

Were Readily Applicable to 

Possessory Weapons Offenses, the 

State Presented No Evidence that 

[Defendant] Acted as 

[Codefendant's] Accomplice in This 

Case.

C. The Prosecutor's Vacillating Explanations of 

the Applicable Law Confused the Jury, 

Interfering with Its Decision-Making Process.

Because the prosecutor gave inaccurate and misleading legal instructions to the 

grand jury, we reverse.

Defendant and codefendant Malik Stringer were charged in a Middlesex 

County indictment with two counts of second-degree unlawful possession of a 

handgun, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:2-6 (counts one and two); and 

fourth-degree unlawful possession of prohibited devices, N.J.S.A. 2C:39-3(f) 

and N.J.S.A. 2C:2-6 (count three). The charges stemmed from a May 4, 2019 

motor vehicle stop based on an invalid temporary registration tag. Codefendant 

Stringer was driving the vehicle and defendant was the front seat passenger. The 

car belonged to Stringer's mother. Upon speaking with Stringer, police detected 

the odor of marijuana and ordered Stringer out of the car. Police also ordered 
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defendant out of the vehicle. An ensuing search of the vehicle uncovered a 

handgun in the center console and another handgun under the front passenger 

seat floor mat, as well as hollow point ammunition "in one of the magazines."

In addition, a small amount of marijuana was found on each defendant. Both 

defendants were arrested.

The prosecuting attorney began the grand jury presentation by reading the 

proposed indictment to the grand jurors as well as the applicable statutes, 

including accomplice liability, N.J.S.A. 2C:2-6, which provides in pertinent 

part:

a. A person is guilty of an offense if it is committed by 

his own conduct or by the conduct of another person for 

which he is legally accountable, or both.

b. A person is legally accountable for the conduct of 

another person when:

(1) Acting with the kind of culpability that 

is sufficient for the commission of the 

offense, he causes an innocent or 

irresponsible person to engage in such 

conduct;

(2) He is made accountable for the conduct 

of such other person by the code or by the 

law defining the offense;

(3) He is an accomplice of such other 

person in the commission of an offense; or
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(4) He is engaged in a conspiracy with such 

other person.

c. A person is an accomplice of another person in the 

commission of an offense if:

(1) With the purpose of promoting or 

facilitating the commission of the offense; 

he

(a) Solicits such other person to 

commit it;

(b) Aids or agrees or attempts to aid 

such other person in planning or 

committing it; or

(c) Having a legal duty to prevent the 

commission of the offense, fails to 

make proper effort so to do; or

(2) His conduct is expressly declared by 

law to establish his complicity.

New Brunswick Police Officer Michael Kerwin, who conducted the 

search of the vehicle, was the sole testifying witness before the grand jury. 

During the prosecutor's questioning, he recounted the May 4, 2019 encounter 

that led to defendants' arrests and responded to numerous questions posed by the 

grand jurors. Specifically, when a juror asked whether "the car actually 

belong[ed] to either [defendant,]" Kerwin responded that the car belonged to

Stringer's mother. Additionally, jurors asked whether "either [defendant] 
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A-2855-21

admit[ted] to owning either gun," whether either defendant had "a permit to 

carry a gun," and whether the guns were "registered to either [defendant]." 

Kerwin responded in the negative to all three questions and was excused from 

the witness stand.

At that point, the prosecutor reread the proposed indictment to the grand 

jurors and asked whether there were any questions. A juror asked whether both

defendants were being charged because "[police] couldn't tell who[se] gun it 

was." Referring to the prior reading of N.J.S.A. 2C:2-6, the prosecutor 

responded that "[t]hey're charged through accompli[ce] liability," and then left 

the room for the grand jurors to deliberate. Upon being informed that the grand 

jurors had additional questions for the officer, the prosecutor recalled Kerwin 

and continued the presentation.

Notably, a juror asked Kerwin how he "attribute[d]" or "tie[d]" the guns 

to defendants. Kerwin responded that "both guns were found in the vehicle that 

[defendants] were traveling in." After the prosecutor questioned Kerwin further 

about the location of the guns in relation to the location of each defendant in the 

vehicle, the jurors asked whether the police processed the guns for fingerprints

or determined whether the guns were stolen. Kerwin responded that, to his 

knowledge, no fingerprints were obtained, and a search revealed that the guns 
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were "not stolen." In response, a juror pointedly asked Kerwin, "[s]o who owns 

the gun[s]?" Kerwin responded he was "not aware of who owns the firearms."

At that point, in an attempt to clarify the applicable law, the prosecutor 

told the grand jurors:

There is a presumption -- not presumption, that's 

not the right word. There is case law or a statute, I can't 

remember, but there is law that says if there are multiple 

people in a car and the driver is not the registered owner 

it's presumed that the -- it's called constructive 

possession, so just because they didn't physically have 

it on their person at that time, they were still in 

constructive possession of the guns as they were the 

only two individuals in the car at the time the guns were 

there.

A juror then asked Kerwin whether he had observed either defendant "fumbling 

around" when he was approaching the vehicle. Kerwin responded he saw no 

movement in the car. 

At that juncture, a juror asked the prosecutor to read the constructive

possession statute, N.J.S.A. 2C:39-2(a), which provides in pertinent part:

When a firearm . . . is found in a vehicle, it is presumed 

to be in the possession of the occupant if there is but 

one. If there is more than one occupant in the vehicle, 

it shall be presumed to be in the possession of all, 

except under the following circumstances:

(1) When it is found upon the person of one 

of the occupants, it shall be presumed to be 

in the possession of that occupant alone;
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(2) When the vehicle is not a stolen one and 

the weapon or other instrument is found out 

of view in a glove compartment, trunk or 

other enclosed customary depository, it 

shall be presumed to be in the possession 

of the occupant or occupants who own or 

have authority to operate the vehicle.

The prosecutor then left the room to allow the grand jurors to continue 

their deliberations but returned when a juror requested clarification about the 

exceptions to the presumption of possession under N.J.S.A. 2C:39-2(a) when 

more than one occupant was in the vehicle. Specifically, the juror asked whether 

possession "can only be attributed to the owner or driver of said car" if "one of 

these handguns was found in a compartment," like a "glove compartment or 

something like that." In response, the prosecutor reread the pertinent provision 

of N.J.S.A. 2C:39-2(a) and then defined "customary depository" as referring to 

"somewhere where you typically put a gun." 

Following up on the prosecutor's response, a juror commented:

Maybe we can sum it up with this and I don't know if 

that clarifies things. 

We're trying to figure out whether the gun in the 

glove compartment can only be attributed to the driver 

and not the passenger, because what you're saying is if 

there's two or more people if it's in the passenger's side 

then yes, it's attributed to everybody in the car, but if 

it's any of these compartments . . .
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. . . .

. . . it's only the owner of said car. 

The following colloquy then ensued between the prosecutor and a juror:

[PROSECUTOR]: It's the State's theory that it is in 

possession of both of them[, N.J.S.A. 2C:]2-6, which is 

the one I read to you earlier about accompli[ce] 

liability.

. . . .

. . . It's an individual who . . . aids or agrees to 

attempt to aid another person in planning or committing 

of a crime.

[GRAND JUROR]: Okay. So that[] supersedes 

anything that was just said basically.

. . . . 

[PROSECUTOR]: Well that's what our theory is under.

. . . . 

. . . Not under [N.J.S.A. 2C:]39-2. Understand?

[GRAND JUROR]: Now we understand. 

Shortly thereafter, the grand jury returned a true bill on all three counts.

Defendant moved to dismiss the indictment, arguing the prosecutor's 

statements showed the State was proceeding under a theory of accomplice 

liability, as opposed to constructive possession, but the State had not presented 
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sufficient evidence to support an accomplice liability theory. In an order entered 

May 3, 2022, the judge denied the motion as to counts one and two but, for 

different reasons than those advanced by defendant, granted the motion with 

respect to count three. The ruling on count three is not challenged on appeal.

As to counts one and two, in an oral opinion following oral argument, the 

judge acknowledged that the prosecutor's "discussion on the law was inartful" 

and "inaccurate." Nonetheless, because the grand jury was instructed on 

constructive possession, the judge determined "[t]he [g]rand [j]ury was entitled 

to rely on the law of constructive possession and find that there was [a] prima[] 

facie case established as to the possession of a weapon . . . based on the portion 

of the law that wasn't misconstrued or mischaracterized by the prosecutor." 

The judge considered State v. Cook, 300 N.J. Super. 476 (App. Div. 

1996), where we questioned "[w]hether accomplice liability even applie[d] to a 

possessory weapons offense" but held that "the giving of an erroneous 

accomplice charge" to a petit jury in a trial where "multiple participants 

engage[d] in a violent attack" that resulted in the victim's death was, "at most, 

harmless." Id. at 486, 489, 490. In support, we relied on the fact that the jury 

was correctly instructed on the principle that "two or more persons may jointly 

share actual or constructive possession of a weapon." Id. at 490.
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Relying on Cook and the legal principles governing motions to dismiss an 

indictment, the judge concluded:

I find . . . that the prosecutor did present a prima facie 

case that both [codefendant] and [defendant] possessed 

two handguns in that vehicle. I don't find here that the 

indictment is manifestly deficient or palpably 

defective. . . . [T]here's a presumption . . . that a [g]rand 

[j]ury proceeding is valid. And unless I'm 

convinced . . . that it's palpably defective on the 

clearest and plainest grounds, then my obligation is to 

not disturb the [g]rand [j]ury indictment.

The . . . defense here concedes some evidence 

was presented to the [g]rand [j]ury, although . . . not 

sufficient evidence. But the quantum of evidence 

doesn't have to be great . . . .

So . . . I find here that there is sufficient 

evidence . . . which is just some evidence required on 

both counts of the indictment that remain. And that as 

to the law they were given all the elements of the 

statute. They were explained constructive possession 

and joint possession. They were also given some 

confusing language on accomplice liability. . . . But as 

th[e c]ourt said in State [v.] Cook that's harmless error. 

And in my estimation if it's harmless error before a petit 

jury, it's certainly harmless error before a [g]rand 

[j]ury. 

This appeal followed.

"A trial court's denial of a motion to dismiss an indictment is reviewed for 

abuse of discretion." State v. Twiggs, 233 N.J. 513, 544 (2018). Under that 

standard, "[w]e will not disturb the denial of such a motion 'unless [the judge's 
12 A-2855-21

discretionary authority] has been clearly abused.'" State v. Saavedra, 433 N.J. 

Super. 501, 514 (App. Div. 2013) (second alteration in original) (quoting State 

v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994)). "[A]n abuse of 

discretion 'arises when a decision is "made without a rational explanation, 

inexplicably departed from established policies, or rested on an impermissible 

basis."'" State v. R.Y., 242 N.J. 48, 65 (2020) (quoting Flagg v. Essex Cnty.

Prosecutor, 171 N.J. 561, 571 (2002)). "[W]e review the trial court's legal 

conclusions de novo." State v. Nicolas, 461 N.J. Super. 207, 211 (App. Div. 

2019) (citing State v. Nash, 212 N.J. 518, 540-41 (2013)).

"An indictment is presumed valid[,]" State v. Feliciano, 224 N.J. 351, 380 

(2016), and "'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. 216, 228-29 (1996) (citations omitted) (quoting State v. 

Perry, 124 N.J. 128, 168 (1991)). At the grand jury stage, "[a]s 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." Feliciano, 224 

N.J. at 380 (quoting State v. Saavedra, 222 N.J. 39, 57 (2015)). 

Still, during the grand jury presentation, "the prosecutor must clearly and 

accurately explain the law to the grand jurors and not leave purely legal issues 
13 A-2855-21

open to speculation by lay people who are simply performing their civic duty." 

State v. Brady, 452 N.J. Super. 143, 166 (App. Div. 2017). When that does not 

occur, an indictment may be challenged. However, "a prosecutor's decision on 

how to instruct a grand jury will constitute grounds for challenging an 

indictment only in exceptional cases," and "defendants bear the burden of 

proving prosecutorial error." State v. Triestman, 416 N.J. Super. 195, 202, 204 

(App. Div. 2010) (citing State v. Francis, 191 N.J. 571, 587 (2007)). 

Although "incomplete or imprecise instructions by a prosecutor will not 

ordinarily warrant dismissal of the indictment," there is nevertheless "a 

difference between instructions that are merely imprecise or incomplete and 

those that are blatantly wrong." State v. Hogan, 336 N.J. Super. 319, 344 (App.

Div. 2001). In that regard, "an indictment will fail where a prosecutor's 

instructions to the grand jury were misleading or an incorrect statement of law." 

Triestman, 416 N.J. Super. at 205. Nonetheless, an "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." Hogan, 

336 N.J. Super. at 344.
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Here, defendant argues that because "the prosecutor ordered the jury to 

disregard [constructive possession]" and apply a "theory of accomplice 

liability," which is "categorically inapplicable to possessory offenses and 

specifically ill-suited to the gun[]possession counts here," the indictment is 

"doom[ed]." Defendant asserts "[t]he dearth of evidence supporting the [S]tate's 

theory and the confusing instructions' effect on the deliberation process require 

dismissal of the indictment."

As the judge observed, the prosecutor's instruction to the grand jury to 

disregard constructive possession and rely exclusively on a theory of accomplice 

liability to establish a prima facie case of unlawful possession of a handgun was 

"inartful" and "inaccurate." See Cook, 300 N.J. Super. at 489 ("Whether 

accomplice liability even applies to a possessory weapons offense is doubtful.").

Nonetheless, the judge determined the prosecutor's error was "harmless." 

However, this was not a case where the grand jurors were allowed to rely on two 

theories of liability, one correct and one incorrect. On the contrary, the grand 

jurors were expressly instructed by the prosecutor to disregard the principles of 

constructive possession, which was the correct theory of liability for the 

possessory weapons offenses.
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"[D]ismissal of an indictment is warranted . . . if the prosecutor's conduct 

'impinge[s] on a grand jury's independence and improperly influence[s] its 

determination.'" State v. Bell, 241 N.J. 552, 561 (2020) (alterations in original) 

(quoting Francis, 191 N.J. at 587). Here, because the instructions given were 

inaccurate and misleading, the indictment cannot stand. Given the questions 

posed by the grand jurors, particularly their uncertainty about the application of 

the exceptions to the presumption of possession under N.J.S.A. 2C:39-2(a) when 

more than one occupant was in the vehicle, we are persuaded the grand jurors 

would have reached a different result but for the prosecutor's error. Thus, we 

reverse the May 3, 2022 order denying the motion to dismiss counts one and two 

of the indictment, but "add that nothing in this opinion precludes the State from 

re-presenting this matter to another grand jury." State v. Tucker, 473 N.J. Super. 

329, 349 (App. Div. 2022). We also vacate the stay.

Reversed and remanded for entry of an appropriate order. We do not 

retain jurisdiction.