Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate and litigation topics.

He was awarded the NJ State State Bar Municipal Court Practitioner of the Year.

He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters.

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Monday, December 26, 2011

Conspiracy and Assault

Conspiracy and Assault

Brief to Dismiss Indictment Charge of Conspiracy and Assault The following is a draft of a Brief to Dismiss Indictment Charge of Conspiracy and Assault. Attorneys should revise this to pertain to the facts of their cases.

Conspiracy and Assault


The grand jury was presented with no evidence of a conspiracy.

It is a fundamental principle of constitutional law that no person shall be required to stand trial for a criminal offense absent proper presentment and indictment by a grand jury. N.J. CONST. art. I and U.S. CONST. amend V. The grand jury has historically acted as the citizens' shield from patently frivolous prosecutions. Stirone vs. United States, 361 U.S. 212, 80 S. CT. 270, 4 L.Ed.2d 252 (1960). It has been recognized that this salutary purpose is frustrated when a defendant is compelled to bear the expense and humiliation of a public trial based upon an improperly brought indictment. See, e.g. State vs. Donovan 129 N.J.L. 478 (Sup. Ct. 1943). The primary function of the grand jury is to hear evidence against a person accused of crimes and to make a determination, based on the evidence presented, as to whether or not the person so charged shall be required to stand trial on such charges. Rosetty vs. Hamilton Tp. Com., 82 N.J. Super. 340,348 (Law Div. 1964), aff'd o.b. 96 N.J. Super. 66 (App. Div. 1967). New Jersey courts may exercise its supervisory power to remedy perceived injustices in grand jury proceedings and dismiss indictments where the grand jury has acted on the basis of insufficient or incompetent evidence. State v. Hogan, 144 N.J 216, 227 (1996) (citing State vs. Murphy, 110 N.J. 20, 33 (1988) State vs. Del Fino, 100 N.J. 154 (1985); see, e.g. State vs. Chandler, 98 N.J. super 241 (Law Div. 1967). Although the dismissal of an indictment is an extraordinary remedy which a court should ordinarily not impose except on the clearest and plainest grounds, State vs. Ferrante, 111 N.J. Super. 299 (App. Div. 1970); State vs. Penta, 127 N.J. Super. 201 (Law Div. 1974), the right of an accused to move for dismissal on the ground of lack of evidence before the grand jury has long been recognized. See, e.g. State vs. Dayton, 23 N.J. L. (Sup. Ct. 1850); State vs. Brown, 188 N.J. Super. 656 (Law Div. 1983). A defendant with substantial grounds for having an indictment dismissed should not be compelled to go to trial to prove the insufficiency. State vs. Graziani, 60 N.J. Super. 1,22 (App. Div. 1959), aff'd o.b. 31 N.J. 538 (1960), cert. den. 363 U.S. 830 S. Ct. 1001,4 L.Ed.2d 15214 (1960). In order for a State's prima facie case to the grand jury to appear sufficient on its face, the State must present some evidence as to each element of the charged offenses. State vs. Schenklewski, 301 N.J. Super. 115, 137 (App. Div.), cert. den. 151 N.J. 77 (1977) and State vs. Bennett, 194 N.J. Super 231, 234 (App. Div. 1984). See also, State vs. Scherzer, 302 N.J. Super. 363, 428 (App. Div.), cert. den. 151 N.J. 466 (1997).

2C:5-2 defines conspiracy as follows:


The State has an obligation to see that the Grand Jury is properly instructed as to the law and here there was no instruction as to the elements of conspiracy. Regarding the obligation of a prosecutor to charge a Grand Jury as to the applicable law, it was held in State vs. Hogan, 336 N.J.S. 319, 343 (App. Div. 2001) cert. denied 167 N.J. 635 (2001) that "the rule... is only when the facts known to the prosecutor clearly indicate or clearly establish the appropriateness of an instruction that duty of the prosecutor arises". In describing the duties of a prosecutor before a Grand Jury, Judge Arnold, citing State vs. Laws 262 N.J.S. 55 (App. Div. 1993) and State vs. Ball 218 N.J.S. 72 (App. Div. 1993) wrote "The prosecutor should state the elements of each crime, although a mere reading of the statute would appear to suffice". Arnold, Criminal Practice and Procedure 10.27.

Here the prosecutor asked the Grand Jury to consider a charge of conspiracy but gave no legal guidance as to any of its elements.


The prosecute failed to advise the Grand Jury of the definitions of bodily injury, significant bodily injury or serious bodily injury and asked the Grand Jury solely to consider Aggravated Assault and Conspiracy to Commit Aggravated Assault. Simple Assault should be charged as a lesser included offense of Aggravated Assault whenever there is a rational basis to do so. State vs. Farrele 250 N.J.S. 386 (App. Div. 1991). Although Farrele dealt with petit jury instructions, the rational of Hogan, supra applies. Since Ms. Sheetz said she suffered only slight bruising, the prosecutor should have given a complete charge as to Aggravated Assault and its lesser included offense, Simple Assault.


The evidence before the Grand Jury does not support a charge of Aggravated Assault and therefore cannot support a charge of Conspiracy to Commit Aggravated Assault.


Prejudicial hearsay evidence of alleged other misconduct as to Defendant Joshua Lowles was introduced before the Grand Jury and no curative or limiting instruction was provided by the prosecutor.

As held in State vs. Hogan, supra, and State vs. Hart, 139 N.J.S. 565 (App. Div. 1976), a prosecutor must never attempt to influence a Grand Jury to return an indictment. The gratuitous introduction of a hearsay declaration as to other alleged joint misconduct by ----- "An indictment may not be dismissed because of non-constitutional errors in presenting the case to the grand jury unless such errors prejudiced the defendant. The inquiry regarding prejudice must focus on whether the errors had an effect on the grand jury's decision to influence the decision, or there is grave doubt that the decision to indict was free from such substantial influence, the errors cannot be deemed to be harmless and the indictment must be dismissed."

Arnold, Criminal Practice and Procedure (2004-2005) 10.48

It is suggested above that there was insufficient evidence presented to this Grand Jury to support the Aggravated Assault, let along a conspiracy to commit Aggravated Assault by others not involved in the assault. At a minimum there has to be grave doubt, to use Judge Arnold's phrase, that the conspiracy charge was indicted free from the prejudicial impact of the "other crime's" evidence.


For the reason set forth above, the Indictment against _____ should be dismissed.