State v. Simon
25 A.3d 1133
N.J. Super. Ct. App. Div.2011Background
- Defendant Fabio Simon was found guilty by jury of eluding police, possession of marijuana, possession with intent to distribute marijuana, possession with intent to distribute near school property, and resisting arrest.
- The trial court sentenced Simon to an extended term of seven years on count one and to a ten-year aggregate term with parole ineligibility on counts four and merged counts two and three, with count six concurrent.
- On appeal, Simon challenges (1) the extended term, and (2) the indictment as fatally defective due to a law student intern presenting to the grand jury.
- The grand jury was presented by a Mercer County Prosecutor’s Office law student intern under supervision, raising questions about Rule 1:21-3(b) eligibility and grand jury secrecy.
- The trial judge assumed the intern should not have been in the grand jury room but found the guilty verdict harmless error.
- The appellate court held the grand jury presentation by the intern did not vitiate the indictment and affirmed the extended-term sentence based on a prior enumerated conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law student participation taints the indictment | State contends intern presentation complies with Rule 1:21-3(b). | Simon argues grand jury appearance by a non-lawyer intern is unauthorized and taints indictment. | Indictment not vitiated; law student under supervision permitted in approved program. |
| Whether the extended term for count four was proper given prior conviction timing | State argues mandatory extended term triggered by prior enumerated conviction. | Simon contends prior conviction remote enough to waive extended term. | Extended term properly imposed; prior conviction not extremely remote. |
Key Cases Cited
- State v. Hogan, 336 N.J. Super. 319 (App.Div. 2001) (grand jury functions and closeness of involvement in indictments)
- State v. Perry, 124 N.J. 128 (1991) (indictment should be disturbed only on clearest ground)
- State v. N.J. Trade Waste Ass'n, 96 N.J. 8 (1984) (standard for disturbing indictments)
- State v. Schamberg, 146 N.J. Super. 559 (App.Div. 1977) (extreme misconduct may lead to dismissal of indictment)
- State v. Hart, 139 N.J. Super. 565 (App.Div. 1976) (state may re-present matter to grand jury after quash)
- In re Grand Jury Appearance Request by Loigman, 183 N.J. 133 (2005) (private citizens not entitled to grand jury access; context for grand jury appearances)
- State v. Francis, 191 N.J. 571 (2007) (grand jury serves dual protective/accusatory functions)
- State v. Irrizary, 328 N.J. Super. 198 (App.Div. 2000) (definition of 'extremely remote' for extended-term waiver)
- Soper v. State, 731 P.2d 587 (Alaska Ct. App. 1987) (absence of unduly influence when intern present before grand jury (jurisdictional comparison))