State v. P.T., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 188 (September 10, 2010) - Order denying dismissal of indictment reversed, case remanded.
"Defendant first argues that his constitutional right to a grand jury was violated because the prosecutor failed to instruct the grand jury as to the law of criminal sexual contact.... When the prosecutor charged the grand jury on September 23, 2008, she read the definitions contained in N.J.S.A. 2C:14-1, including the definition of 'sexual contact'.... She also instructed the jury on criminal coercion under N.J.S.A. 2C:13-5, which is concededly not relevant here. Next, she instructed the grand jury on sexual-assault offenses under N.J.S.A. 2C:14-2.... The prosecutor then charged the grand jury with criminal sexual contact.... Needless to say, even had the prosecutor presented the case against defendant on September 23, 2008, the grand jury could not have applied the law to the facts. First, the prosecutor in the above-quoted passage should have referenced 'Section 2C:14-2c(1) through (4)', not 'Section 2C:14-2c through (4).' Second, the prosecutor never indicated that she was charging the jury on N.J.S.A. 2C:14-2c at all; she merely informed the jury that she was charging them on 'sexual assault.' Thus, although the jury knew it had been charged on offenses under N.J.S.A. 2C:14-2, it had no idea which portion of that charge contained the circumstances that would establish criminal sexual contact under N.J.S.A. 2C:14-3. The misleading effect of this charge was compounded by the passage of more than two months before the prosecutor presented this case. In the interim, the grand jury had considered a variety of sexual and other crimes. The average grand juror could not possibly be expected to recall and apply the elements of any crime, including criminal sexual contact, after such a hiatus. At the very least, the prosecutor on December 12, 2008, should have provided the jury with a written charge on the elements of criminal sexual contact, including relevant definitions and the pertinent portions of N.J.S.A. 2C:14-2c. As a result, the instructions given were so misleading that the indictment cannot stand."
