SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0373-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY F. BATES, a/k/a

RODNEY F. BATES, JR.,

Defendant-Appellant.

______________________________

Submitted December 19, 2018 – Decided June 10, 2019

Before Judges Nugent and Reisner.

On appeal from Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 15-12-3508.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Tamar Y. Lerer, Assistant Deputy Public 

Defender, of counsel and on the brief).

Mary Eva Colalillo, Camden County Prosecutor, 

attorney for respondent (Jason Magid, Assistant 

Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE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 

Defendant appeals from his conviction of the second-degree burglary of 

his sister's home and the third-degree aggravated assault of his niece. He also 

appeals his aggregate sentence of ten years in prison, eighty-five percent of 

which is to be served without parole eligibility, a requirement of the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2. He presents the following arguments 

for our consideration: 

POINT I

THE AMENDMENT OF THE INDICTMENT, THE 

MORNING TRIAL BEGAN AND OVER 

DEFENDANT’S OBJECTION, CHARGING 

DEFENDANT WITH A MORE SERIOUS OFFENSE

THAN THAT FOUND BY THE GRAND JURY 

CONTRAVENED HIS RIGHT TO INDICTMENT BY 

THE GRAND JURY AND DEPRIVED HIM OF 

NOTICE OF THE PENAL CONSEQUENCES OF 

THE CHARGES.

POINT II

THE JURY INSTRUCTION ON BURGLARY LEFT 

OPEN THE POSSIBILITY OF A NON-UNANIMOUS 

VERDICT AND WAS NOT SUFFICIENTLY 

TAILORED TO THE FACTS OF THE CASE. FOR 

BOTH REASONS, THE BURGLARY CONVICTION 

MUST BE REVERSED. (NOT RAISED BELOW)

A. The Jury Charge In This Case Was

Insufficient To Ensure a Unanimous

Verdict.

B. The Jury Instruction on Burglary Was
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Insufficient To Ensure That Defendant 

Was Properly Convicted Of Burglary.

POINT III

THE TRIAL COURT’S REFUSAL TO SANITIZE 

THE 9-1-1 CALL ALLOWED THE BACKDOOR 

ADMISSION OF THE OTHER-BAD-ACT 

EVIDENCE THAT THE COURT HAD RULED WAS 

INADMISSIBLE AT TRIAL. THE RESULTING

PREJUDICE NECESSITATES REVERSAL OF 

DEFENDANT'S CONVICTIONS.

POINT IV

THE TRIAL COURT FAILED TO ACCOUNT FOR

DEFENDANT’S AGE AND PHYSICAL 

INFIRMITIES WHEN SENTENCING DEFENDANT, 

RESULTING IN AN EXCESSIVE SENTENCE. 

THEREFORE, THE SENTENCE MUST BE 

VACATED AND THE CASE REMANDED FOR

RESENTENCING. 

In addition, in a pro se supplemental brief that has no point headings, 

defendant argues there was insufficient evidence that he did not have permission 

to enter his sister's home to visit his mother. He also argues: he did not receive 

discovery; the prosecutor withheld exculpatory evidence; the attorney who 

represented him before trial did not seek discovery of a police report containing 

exculpatory evidence; his attorney did not call as a witness the police officer 

who wrote the report containing the exculpatory evidence; and his original

attorney was replaced by an inexperienced attorney who did not seek to obtain 

important discovery and exculpatory evidence.
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Finding merit in defendant's first point, we remand for correction of the 

Judgment of Conviction to reflect that on the first count defendant was convicted 

on the offense charged in the indictment – third-degree burglary – and for 

resentencing on that count. Finding no merit in the remaining points, we reject 

defendant's request for a new trial. Concluding that the only possibly

meritorious points in defendant's pro se brief are, in essence, allegations that the 

attorneys who represented him did so ineffectively, we decline to consider them; 

they are better suited for disposition in the context of a petition for postconviction relief. 

I.

A.

A Camden County grand jury charged defendant in a four-count 

indictment with the following offenses: second-degree burglary, N.J.S.A. 

2C:18-2(a)(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(7) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 

2C:39-5(d) (count three); and third-degree possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4(d) (count four).

The Indictment's first count provided in pertinent part: 

The Grand Jurors of the State of New Jersey, for the 

County of Camden, upon their oaths present that, on or 

about the 10th day of September, 2015, in the Borough 
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of Somerdale, County of Camden, aforesaid, and within 

the jurisdiction of this Court, 

RODNEY F BATES

did unlawfully enter the structure of [his niece] at [her 

address] with the purpose to commit an offense therein; 

contrary to the provisions of N.J.S. 2C:18-2a(1), and 

against the peace of this State, the Government and 

dignity of the same. 

2C:18-2a(1) Burglary – Second Degree[1]

Defendant's jury trial took place in March 2017. On the morning 

testimony was to begin, after giving the impaneled jury preliminary instructions 

but before the attorneys gave opening statements, the court heard defendant's 

motion to dismiss the indictment's first count. The court listened to a recording 

of the grand jury presentment and then heard the attorneys' arguments. During 

argument, after implicitly acknowledging that count one as drafted did not state 

the elements of a second-degree offense, the prosecutor "move[d] to amend the 

body to support or reflect exactly what was said in the grand jury proceedings." 

 

1

 Contrary to the suggestion flowing from the "Second Degree" following the 

statutory reference, N.J.S.A. 2C:18-2(a)(1) is not a second-degree crime; it is a 

third-degree crime. N.J.S.A. 2C:18-2(b) (providing that with two exceptions

involving the infliction or attempt to inflict bodily injury, or the display of what 

appear to be explosives or a deadly weapon, "burglary is a crime of the third 

degree"). 
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The court granted the prosecutor's motion. In granting the prosecutor's 

oral motion to amend the indictment, the court noted:

In the body of the indictment on count one it does not 

have the language that bumps it to a second-degree, 

which would mean that in the course of committing the 

offense the actor - - and I'm citing from [N.J.S.A. 

2C:18-2(b)(1) and (2)] - - "purposely, knowingly or 

recklessly inflicts, attempts to inflict, or threatens to 

inflict bodily injury on anyone or is armed with or 

displays what appears to be explosives or a deadly 

weapon." 

The court nonetheless determined the testimony the State elicited from a

police officer before the grand jury "fits the definition, at least a prima facie 

definition of a prima facie case, of second-degree." The court reiterated the 

officer's testimony "sets forth a prima facie case and enough evidence to 

formally charge the defendant with second-degree." In addition, the court noted 

that the prosecutor, when asking the grand jury "to rule on or make a vote on 

what the indictment would be, . . . said 'that's actually a second-degree offense.'" 

The court disposed of three other motions, none of which are at issue on 

this appeal. The jury convicted defendant on the indictment's first two counts 

and acquitted him of the third and fourth counts. At sentencing, the judge 
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merged the third-degree assault into the second-degree burglary and sentenced 

defendant to a ten-year prison term subject to NERA.2 

B.

The parties presented the following proofs at trial. Defendant's elderly 

mother lived in Somerdale with her daughter, who was defendant's sister; and

her granddaughter, who was defendant's niece. Defendant's mother had deeded 

the home to defendant's sister in July 2004. His sister and niece cared for his 

mother. Defendant was not permitted to enter the home unless his sister was 

present. 

His sister was not at home on September 10, 2015. She was working a 

twelve-hour shift. Defendant's niece was caring for his mother that day. His 

niece testified that she had moved into the Somerdale home to help her mother 

care for her grandmother, who had fallen ill. She described defendant as, among 

other things, "a little bit of a bully to everybody in the family including [his 

mother]." 

Defendant's niece explained that defendant was not permitted to come to 

the house unless he first made an appointment. He was allowed to use the 

 

2

 The Judgment of Conviction specifies the statutory offense of third-degree 

aggravated assault as 2C:12-1(a)(1), not 2C:12-1(b)(7), the offense charged in 

the indictment of which defendant was found guilty.
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detached garage, where he stored some of his belongings. Defendant's niece 

also testified that defendant never came to the home when she was alone with 

her grandmother, because she felt uncomfortable around him. 

Defendant's niece was up early on September 10, 2015. She was alone 

with her grandmother in the home when she heard the trash trucks and realized 

she had forgotten to take out the trash. She ran out to take out the trash, and 

while doing so, defendant pulled up in her grandmother's Cadillac and began to 

ridicule her. He got out of the car and began "gunning" for the door. She 

pleaded with him not to go in, saying he was not allowed, her grandmother was 

not well, and her grandmother was sleeping. 

According to defendant's niece, defendant entered the home. She ran 

behind him and grabbed the door knob. He reached for the slide lock and she 

"ripped" open the door and was able to stand in front of the door, her body 

between the door and defendant, so that he would not lock her out of the house. 

He pushed his body into hers, and hers in turn was propelled against the door 

and shattered the glass. Defendant picked up a piece of triangular-shaped glass

and held it near his niece.

Defendant's niece testified that she and defendant struggled. During the 

struggle, he managed to get a fistful of her hair at the top of her head. As the 
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struggle continued, defendant's niece fell to the ground and he jumped on top of 

her and pinned her down with his hands. She cried and screamed, and she 

eventually stood up. She was able to re-enter the house, grab her cell phone, 

and call 9-1-1. Defendant went to her grandmother's room.

Defendant's niece heard defendant talking to her grandmother and 

attempting to blame her for the broken door. He came out while she was 

speaking to the dispatcher, grabbed her by the neck, pinned her against the wall, 

and punched her in the face twice. Her grandmother came out with her walker. 

Defendant's niece called 9-1-1 again, having been disconnected during the first 

call. Defendant left. 

Recordings of the two 9-1-1 telephone calls where played for the jury. In 

the first call, defendant's niece told the dispatcher her uncle had broken the glass 

in a door and broken into the house. "My uncle just broke into the house. We 

were just wrestling outside. He broke the glass. . . . he's coming after me right 

now. He just punched me." When defendant's niece called 9-1-1 the second 

time, she said her uncle "had me pinned under the chair pounding me in the 

face." In the second call, in response to the dispatcher's question, "what's going 

on there," defendant's niece responded: "I have an abusive, crazy uncle who 

stops by from time to time. Today he decided to break the glass on my 
10 A-0373-17T3

grandmother's porch, break in and then proceeded to punch me in the face and 

pull my hair."

Defendant's niece explained during her testimony that when defendant 

arrived at the house, the door was unlocked because she was taking out the trash. 

She normally locked the doors. She locked the doors to keep defendant out, 

because when he came in, he would refuse to leave or display a "bully kind of 

mentality." Defendant's niece also explained that defendant had locked her out 

of the house on previous occasions.

Clumps of defendant's niece's hair had fallen out after he pulled it. The 

State presented photographic evidence of her hair as well as her two black eyes. 

The State also presented photographic evidence of the area where the struggle 

occurred, including a photograph of the shattered door. 

Defendant testified to a different version of the events. He said he was 

unaware of any understanding among his mother, sister, and niece that he was 

not allowed to enter the house unless his sister was present. According to him, 

the opposite was true; his mother wanted him there. He had no idea his mother 

had deeded the home to his sister until he saw the deed a couple of days before 

trial when he and his attorney were reviewing discovery. Neither his mother nor
11 A-0373-17T3

his sister had ever told him that title of the house had been transferred to his 

sister. 

Turning to the events of September 10, 2015, defendant said he drove to 

his mother's home that morning to visit her. He drove into the driveway, passed 

his niece, who was taking out the trash, and walked toward the door. He thought 

he heard his niece say something but he told her did not have time and continued 

to walk toward the door. 

Defendant said that as he began to open the door to enter the home to see 

his mother, his niece came from behind him, slipped under his arm, and got 

between him and the door. According to defendant, her hair got caught in the 

latch and lock and she thought he was pulling it. She stomped on his foot three 

times and broke his toe. In pain, he lifted his foot, and she pushed him to the 

ground. 

As he lay on the ground he watched his niece rip her hair out from the 

lock, screaming "ouch" as she did so. She then came at defendant with her foot 

and tried to kick him again. 

Defendant had to hop into the house to see his mother, because his foot 

was severely injured. He told his mother his niece was starting something and 

asked his mother to come out and intercede. His mother came out. It appeared 
12 A-0373-17T3

to him that his niece was getting a knife out of a kitchen drawer, so he told his 

mother he was leaving and he left, wanting to get away from his attacker. 

Defendant repeated that he had gone to the home for no other reason than 

to visit his mother. He explained that he lives in Florida during the winter, and 

when summer is over, he returns there. He knew his mother's health was failing 

and wanted to visit her before returning to Florida for the winter.

During cross-examination defendant was confronted with photographs of 

his niece's injuries. He denied inflicting them. He said the photographs of her 

face looked "like all smeared makeup." As to her other injuries, he testified: "I 

feel as though she inflicted them upon herself by attacking me from behind and 

putting her head in a position where her hair was caught and the way she ripped 

her hair out." Defendant insisted he was "not responsible for her actions. She 

was the aggressor, not [him]." He claimed he never touched her. 

The jury rejected defendant's version of the events and convicted him of 

burglary and aggravated assault. 

II.

A.

In his first point, defendant argues that by permitting the State to amend 

the indictment immediately before the parties presented their opening statements 

to the jury, the trial court deprived him of his constitutional right to indictment 
13 A-0373-17T3

by grand jury. Defendant adds that the last-minute amendment deprived him of 

his right to fair notice of the charges against him and resulted in his conviction 

on a charge for which he had not been indicted.

The State responds that the first count's deficiency is nothing more than a 

clerical error. The State emphasizes defendant could not have been prejudiced 

because during the pretrial conferences and the pretrial plea negotiations 

defendant heard the trial court and the prosecutor discuss the charges against 

him, including the crime of second-degree burglary. The State also points out 

that in all of the plea negotiations, including those for which there were on-therecord discussions, defendant was informed of the penalty for second-degree 

burglary. Consequently, defendant could not have been prejudiced by the 

clerical error in the indictment.

B.

The New Jersey Constitution guarantees that 

[n]o person shall be held to answer for a criminal 

offense, unless on the presentment or indictment of a 

grand jury, except in cases of impeachment, or in cases 

now prosecuted without indictment, or arising in the 

army or navy or in the militia, when in actual service in 

time of war or public danger.

[N.J. Const. art. I, ¶ 8.]
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"That constitutional provision requires that the State present to the grand 

jury proof to support every element of the offense before the return of an 

indictment and that every element must be alleged in the indictment." State v. 

Fortin, 178 N.J. 540, 633 (2004) (citing State v. Hogan, 144 N.J. 216, 227 

(1996)). Moreover, "under the Due Process Clause of the Fifth Amendment and 

the notice and jury trial guarantees of the Sixth Amendment, any fact (other than 

prior conviction) that increases the maximum penalty for a crime must be 

charged in an indictment, submitted to a jury, and proven beyond a reasonable 

doubt." Apprendi v. New Jersey, 530 U.S. 466, 476 (2000) (quoting Jones v. 

United States, 526 U.S. 227, 243, n.6 (1999). 

Our Supreme Court has explained that a defendant's right to a grand jury 

indictment is satisfied if the indictment informs the defendant of the offense 

charged so that he can adequately prepare his defense, "and is 'sufficiently 

specific' both 'to enable the defendant to avoid a subsequent prosecution for the 

same offense' and 'to preclude the substitution by a trial jury of an offense which 

the grand jury did not in fact consider or charge.'" State v. Dorn, 233 N.J. 81, 

93 (2018) (quoting State v. LeFurge, 101 N.J. 404, 415 (1986)). The Supreme 

Court has further explained that "[t]o meet those criteria, an 'indictment must 

allege all the essential facts of the crime.'" Ibid. (quoting LeFurge, 101 N.J. at 
15 A-0373-17T3

418). "Thus, 'the State must present proof of every element of an offense to the 

grand jury and specify those elements in the indictment.'" Id. at 93-94 (quoting 

Fortin, 178 N.J. at 633).

A court "may amend the indictment . . . to correct an error in form or the 

description of the crime intended to be charged or to charge a lesser included 

offense provided that the amendment does not charge another or different 

offense from that alleged and the defendant will not be prejudiced thereby in his 

or her defense." R. 3:7-4. The Supreme Court has cautioned that "[a]n error 

relating to the substance or 'essence' of an offense cannot be amended by 

operation of that rule." Dorn, 233 N.J. at 94 (citing State v. Middleton, 299 N.J. 

Super. 22, 34 (App. Div. 1997)). Thus, "a 'trial court may not amend an 

indictment to charge a more serious offense,' State v. Orlando, 269 N.J. Super. 

116, 138 (App. Div. 1993), because the amendment would subject the defendant 

to a charge of 'an entirely different character and magnitude,' thereby depriving 

him of the opportunity to mount a meaningful defense, cf. State v. Koch, 161 

N.J. Super. 63, 65-67 (App. Div. 1978)." Id. at 96. 

C.

These principles should have precluded the amendment of the indictment. 

The amendment did not merely "correct an error in form or the description of 
16 A-0373-17T3

the crime intended to be charged," but rather "charge[d] another or different 

offense from that alleged." R. 3:7-4. The amendment related to the substance 

or essence of the offense, and therefore was precluded by the rule. Dorn, 233

N.J. at 94.

The State argues that because the evidence presented to the grand jury 

established second-degree burglary, because the grand jury was asked to 

consider returning an indictment for second-degree burglary, and because the 

plea negotiations during many pretrial proceedings centered around a plea to 

second-degree burglary and included a judge explaining to defendant the 

maximum exposure he would face for that crime if he proceeded to trial, there 

was no prejudice to defendant. We disagree that such circumstances, even if 

true, can substitute for a proper grand jury indictment.

We have previously concluded, in the context of a robbery indictment, 

that the indictment was inadequate, notwithstanding that the presentation to the 

grand jury supported it:

In the absence of the inclusion of either facts or 

statutory language constituting a first-degree robbery, 

there can be no determination by a reviewing court as 

to whether or not the grand jury, although hearing 

sufficient evidence to constitute a first degree robbery, 

accepted or rejected such evidence. The indictment in 

question does not demonstrate a grand jury 
17 A-0373-17T3

determination that it was satisfied that a first-degree 

crime had occurred. 

[State v. Catlow, 206 N.J. Super. 186, 195 (App. Div. 

1985).] 

Prejudice is certainly a consideration. Rule 3:7-4 provides that an 

indictment may be amended "to correct an error in form or the description of the 

crime intended to be charged . . . provided that the amendment does not charge 

another or different offense from that alleged and the defendant will not be 

prejudiced thereby in his or her defense." The terms of this rule are conjunctive, 

not disjunctive; the amendment must not charge another or different offense, 

and must not prejudice the defendant. Thus, if the indictment charges a different 

offense – as is the case here – it may not be amended under the rule, even in the 

absence of prejudice. 

We thus reverse the conviction for second-degree burglary. Because the 

trial court's charge to the jury clearly encompassed the lesser-included offense 

of third-degree burglary, we remand this matter to the trial court to re-sentence 

defendant and to amend the Judgment of Conviction accordingly.

III.

In the second argument in his first brief, defendant contends the jury 

instruction on burglary left open the possibility of a non-unanimous verdict and 
18 A-0373-17T3

was not sufficiently tailored to the facts of the case. Noting the State's theory 

was that he "entered the home with the intent to commit the offense of 

harassment," defendant asserts the court's charge on burglary was confusing and 

"created a risk of a non-unanimous verdict because it presented the jury with 

two different potential victims of the alleged harassment and three different 

theories of harassment without telling the jury it had to unanimously agree on 

both the victim and the crime." 

Defendant did not object to the trial court's instructions to the jury on 

burglary. We find the argument he raises for the first time on appeal to be 

without sufficient merit to warrant discussion. R. 2:11-3(e)(2). 

We reach the same conclusion as to defendant's third argument: the trial 

court's failure to redact the niece's reference to defendant as "an abusive, crazy 

uncle who stops by from time to time" requires a new trial. Defendant's niece 

testified, without objection, that she kept the doors locked in her mother's home 

specifically to keep defendant out, because, among other things, of his bullying 

tactics. The niece's testimony about why she kept the doors locked, as well as 

her testimony describing what defendant did when he assaulted her, render 

relatively innocuous – harmless error in legal terminology, R. 2:10-2 – the 
19 A-0373-17T3

comments she made to the dispatcher while in a state of emotional turmoil. This 

argument warrants no further discussion. R. 2:11-3(e)(2). 

IV.

In his pro se brief, defendant raises numerous instances in which he claims 

that both the first attorney who represented him and the attorney who 

represented him at trial were ineffective. We generally decline to consider 

ineffective-assistance-of-counsel claims on direct appeal, "because such claims 

involve allegations and evidence that lie outside the trial record." State v. 

Preciose, 129 N.J. 451, 460 (1992). Defendant's allegations concerning the 

attorneys who represented him are based on numerous assertions in his pro se 

brief for which there is no support in the record. Accordingly, we decline to 

hear them without prejudice to defendant's right to file a petition for postconviction relief. 

We have considered defendant's remaining arguments and find them to be 

without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). 

Affirmed in part, reversed in part, and remanded for further proceedings 

consistent with this opinion. We do not retain jurisdiction.