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N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(2)(2) (Count One); second-degree aggravated assault against Rosa, contrary to N.J.S.A. 2C:12-1b(1) (Count Two); and third-degree riot, contrary to N.J.S.A. 2C:33-2a and N.J.S.A. 2C:33-1a(3) (Count Seven), on the basis that the assistant prosecutor (prosecutor) withheld from the grand jury clearly exculpatory evidence directly negating the guilt of defendant. We affirm. "> Original Wordprocessor Version

This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5647-04T55647-04T5 STATE OF NEW JERSEY, Plaintiff-Appellant, v. VINCENT CORTESE, Defendant-Respondent. ___________________________________________________________

Submitted May 1, 2006 - Decided June 23, 2006 Before Judges Cuff and Holston, Jr. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 213-02-05. Bruce J. Kaplan, Middlesex County Prosecutor, attorney for appellant (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief). Benedict and Altman, attorneys for respondent (Joseph J. Benedict and Philip Nettl, on the brief). PER CURIAM The State appeals the June 10, 2005, Law Division Order dismissing without prejudice Middlesex County Indictment No. 213-02-05 charging defendant, Vincent Cortese, with the first-degree attempted murder of Gabriel Rosa (Rosa), contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:33-2a and 144 N.J. 216 (1996), controlled the court's disposition of the motion. Generally, "'the decision whether to dismiss an indictment lies within the discretion of the trial court[.]'" State v. Mason, 355 N.J. Super. 296, 299 (App. Div. 2002) (quoting Hogan, supra, 144 N.J. at 229). In Mason, we stated that "in the absence of an abuse of that discretion, we will not disturb the determination of the trial court." Id.
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at 299. In Hogan, our Supreme Court noted: [I]n establishing its prima facie case against the accused, the State may not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a "half-truth." Although the grand jury is not the final adjudicator of guilt and innocence, the presence of the right to indictment in the State Constitution indicates that the grand jury was intended to be more than a rubber stamp of the prosecutor's office. 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. In order to perform that vital protective function, 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. If evidence of that character is withheld from the grand jury, the prosecutor, in essence, presents a distorted version of the facts and interferes with the grand jury's decision-making function. [Hogan, supra, 144 N.J. at 236 (citations omitted).] Accordingly, our Supreme Court held that a prosecutor has a limited duty to introduce such evidence if it "both directly negates the guilt of the accused and is clearly exculpatory." Id. at 237. We note that out of the twenty-two witnesses interviewed, only three expressed any knowledge of defendant's whereabouts or actions during the fight: (1) defendant himself; (2) J.Y.; and (3) Horskey. All three gave statements that, alone and in combination, exculpated defendant from the crimes of attempted murder, aggravated assault and riot. The trial court noted as much, and made specific findings that Horskey's and J.Y.'s second statement exculpated defendant. These were discretionary judgments as to the quality and character of the evidence in the State's possession at the time of the grand jury presentation. The judge determined that the "full picture should have been presented to the Grand Jury in fairness, fundamental fairness. . . ." The judge did not base his ruling on a finding that defendant's own exculpatory statement needed to be presented. Hogan indicates that a defendant's statements tend to be self-serving in general, and ordinarily need not be presented to a grand jury. Id. at 238. We are satisfied, therefore, that the judge correctly limited his decision to the exculpatory nature of Horskey's statement and J.Y.'s second statement. The judge concluded that J.Y.'s second statement should have been read to the grand jury in its entirety, because it exculpated defendant and because by failing to read it the grand jury was given an incomplete account of defendant's role in the assault of Rosa. Hogan informs that there are two factors to consider in evaluating exculpatory evidence. First, the evidence must directly negate guilt by refuting an element of the crime, and second, the evidence must be clearly
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exculpatory. Id. at 237. In his second version of events, J.Y. said the following: (1) defendant hit Rosa once as Rosa took a run at defendant; (2) Rosa then fell on the ground, where he was beaten by J.Y. (with a skateboard) and Anis (with a pipe or a bat); (3) defendant told J.Y. and Anis to stop, and told them that they had to get out of there; and (4) the three of them (defendant, J.Y. and Anis) ran and got into Horskey's Honda CRV. This version, if credible, contradicts J.Y.'s claim in his belated third version of events that defendant "stomped" or "kicked" Rosa. In his second statement, J.Y. precisely describes the beating of Rosa, detailing how he beat Rosa with a skateboard and Anis beat him with a pipe. He specifically recalled defendant being in the vicinity. But the only actions of defendant that J.Y. described were defendant yelling at Anis and him, "Come on, let's go!" That evidence, we are satisfied, directly contradicts J.Y.'s later allegation that defendant kicked Rosa in the head. The State's theory of attempted murder is that defendant kicked Rosa "with the purpose of causing [death] without further conduct on his part[.]" 330 N.J. Super. 395 (App. Div.), certif. denied, 165 N.J. 486 (2000), that even if Horskey's and J.Y.'s statements directly negated defendant's guilt, they were not clearly exculpatory. In Cook, however, there were three separate and independent witnesses who identified the defendant as the perpetrator in a murder. One witness tentatively identified someone other than defendant, a man named Hightower. Id. at 408. A final witness initially identified Hightower, but later identified the defendant. Ibid. The trial court denied the defendant's motion to dismiss the indictment on the ground that the prosecutor failed to present the competing identifications. Id. at 410. The defendant was subsequently convicted of murder and robbery by a petit jury. Id. at 411. We held that "the identifications . . . of Hightower were not 'clearly exculpatory' since they were contradicted by the testimony of three other witnesses who clearly identified defendant as the perpetrator of the murder and robbery." Id. at 410-11. We then affirmed the conviction, finding "no abuse of discretion by the trial judge in light of the strength of the State's case presented to the grand jury and the nature of the exculpatory evidence." Id. at 411. Furthermore, we held that "the finding of guilty beyond a reasonable doubt by the petit jury would render harmless any failure to present the alleged exculpatory evidence to the grand jury." Ibid. In Cook, the trial court exercised its discretion in denying the motion to dismiss the indictment. Here, the opposite happened: the trial court dismissed the indictment. Both decisions are entitled to great deference, and should only be disturbed upon a showing of abuse of discretion. Moreover, in Cook, any errors in the grand jury presentation were rendered harmless by the petit jury verdict. Here, that has not happened. The trial court dismissed the

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indictment, and the State appealed. The State's errors in their presentation have never been mitigated by either a subsequent presentation to the grand jury or a jury trial. Most significant, however, are the substantive differences between this case and Cook. In Cook, the State had three solid eyewitnesses to the defendant's guilt, whereas here, the State's case is more tenuous. The State has a single witness, J.Y., who did not inculpate defendant until the third time he had an opportunity to tell the police his story. Even if the State's theory is correct, it means that J.Y. lied to the police on two separate occasions. Moreover, no other witness has corroborated J.Y.'s third version of the events. The State had two independent witnesses to defendant's actions when Rosa was beaten. Both said defendant was not involved. That evidence directly negated defendant's guilt and was clearly exculpatory. Only one witness, J.Y., in his third version, testified to defendant striking Rosa. The State has a duty to present clearly exculpatory evidence to a grand jury. We are satisfied that the judge correctly exercised his discretion when he determined that the State was derelict in its duty in not presenting Horskey's statement and the full second version of J.Y.'s statement to the grand jury. Affirmed.

According to witness statements, Grogan never went to the EHS football field and remained in Horskey's mother's car. The State has not re-presented the case to the grand jury. (continued) (continued) 22 A-5647-04T5 June 23, 2006 0x01 graphic

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