Date: 02-01-2016

Case Style: STATE OF NEW JERSEY VS. GEORGE FERMISCO

Case Number: A-3875-13T1

Judge: Carmen Messano

Court: SUPERIOR COURT OF NEW JERSEY

Plaintiff's Attorney: Brian D. Gillet, Andrew C. Carey, Susan L. Berkow

Defendant's Attorney: Jonathan H. Lomurro

Description: Defendant George Fermisco was originally indicted in
Middlesex County Indictment No. 10-05-0779 (the first
indictment), which charged him and twenty-six others with
various conspiracies involving the possession and distribution
February 1, 2016
A-3875-13T1 2
of controlled dangerous substances (CDS), and substantive CDS
and weapons offenses. That indictment was dismissed by the
State, and defendant and six co-defendants were re-indicted by a
different grand jury in a superseding indictment that is the
subject of this appeal (Indictment No. 11-10-01490).
Defendant pleaded guilty to second-degree conspiracy to
possess a CDS with intent to distribute, N.J.S.A. 2C:5-2, 2C:35
5a(1), and 2C:35-5b(2). Pursuant to the plea agreement, the
remaining count of the indictment against defendant was
dismissed, and he was sentenced to a five-year term of
imprisonment. Defendant raises the following points for our
consideration on appeal:
POINT ONE
THE INDICTMENT SHOULD BE DISMISSED BECAUSE THE STATE'S PRESENTATION TO THE GRAND JURY WAS IMPROPER, PREJUDICIAL, AND UNFAIR.
A. [STATE V. TRIESTMAN, 416 N.J. SUPER. 195, 202 (APP. DIV. 2010)] WAS MISAPPLIED TO THE FACTS OF THE PRESENT MATTER.
B. THE STATE TRIVIALIZED AND DESECRATED THE GRAND JURY PROCESS, CIRCUMVENTED THE PROTECTIONS BUILT WITHIN OUR SYSTEM OF JUSTICE, AND CONFUSED THE JURORS REGARDING THE APPLICABLE LEGAL STANDARDS.

A-3875-13T1 3
POINT TWO
THE CHARGES AGAINST DEFENDANT SHOULD BE DISMISSED BECAUSE HE WAS DENIED HIS RIGHT TO A SPEEDY TRIAL.1
We have considered these arguments in light of the record and
applicable legal standards.2 We affirm.
I.
The first indictment was returned on May 26, 2010, and it
is clear from the record that the sheer number of co-defendants
caused some delay. It suffices to say that defendant's attempts
to obtain complete discovery were arduous, with repeated status
conferences and correspondence dealing with the issue. On March
11, 2011, the judge ordered the State to turn over certain
discovery. These included log sheets and audio recordings from
wiretaps, which the judge required the State to produce before
1 We have omitted the sub-points of point two in defendant's brief.
2 Although not included in the appellate record, we requested copies of the transcript of defendant's guilty plea to determine whether the plea was entered conditionally, thereby preserving defendant's right to raise issues regarding the denial of certain pre-trial motions. R. 3:9-3(f). Although our examination of the transcript demonstrates a lack of strict compliance with the requirements of the Rule, the State has not asserted that defendant's guilty pleas were unconditional, thereby effectuating a waiver of his ability to raise these issues on appeal. See, e.g., State v. Knight, 183 N.J. 449, 471 (2005). We therefore consider the issues.
A-3875-13T1 4
conducting a Driver3 hearing as requested by defendant and
several co-defendants. In May 2011, defendant and others moved
to dismiss the indictment for failure to provide complete
discovery. The judge entered an order on June 24 compelling the
State to provide certain other discovery.
The State concedes without explanation that in July 2011,
it recognized a "deficiency in the grand jury presentment," and,
on August 19, it moved to dismiss the first indictment. That
motion was granted.4 In the interim, on March 30, 2011, co
defendant David Cruz, the person alleged to have been the center
point of the several different conspiracies charged in the first
indictment, pleaded guilty. In doing so, he specifically
admitted to conspiring with defendant to sell CDS.
Also, on July 6, 2011, another grand jury convened and was
provided with an initial orientation by the prosecutor,
including instructions on the law regarding the elements of
various CDS offenses. During that initial session, the State
produced "Lieutenant Scott," apparently the commander of the
3 State v. Driver, 38 N.J. 255 (1962). Driver "set forth the standard for the admissibility of a recording in a criminal trial." State v. Nantambu, 221 N.J. 390, 403 (2015). 4 Defendant agrees with this characterization. We do not have the transcript from the grand jury proceedings that led to the first indictment, and it is otherwise unclear what this "deficiency" was.
A-3875-13T1 5
prosecutor's office narcotics squad.5 Scott provided an
extensive, informal lesson on the various types of narcotics
prevalent in Middlesex County, as well as other background
information in the nature of expert testimony. Scott fielded
questions from the grand jurors.
On September 28, 2011, the State presented evidence to the
grand jury seeking a superseding indictment against defendant.
The sole witness was Steven Weitz, a sergeant with the
prosecutor's office narcotics task force who was assigned to the
Drug Enforcement Agency (DEA) task force during times relevant
to the investigation. Weitz testified as to evidence
implicating the seven individuals ultimately charged in
Indictment No. 11-10-01490, and their involvement with Cruz.
Before submitting the case to the grand jurors for a vote,
the prosecutor stated that he would not provide further
instructions on the law regarding possession, since the panel
had received those on July 6. Nevertheless, he proceeded to
instruct the grand jurors on the law of conspiracy and
distribution of, or possession with intent to distribute, CDS.
The prosecutor asked if the grand jurors would like to be re
charged on the law, but there was no response from the panel.
5 Scott's first name does not appear in the record. He was not placed under oath.
A-3875-13T1 6
On October 5, 2011, Indictment No. 11-10-01490 was returned,
charging defendant with the same two offenses as contained in
the first indictment, second-degree conspiracy with Cruz and
first-degree distribution of cocaine in a quantity of five
ounces or more, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1).
On February 15, 2012, defendant moved to dismiss the
indictment based upon alleged prosecutorial misconduct during
the July 6, 2011 orientation session and deficiencies in the
grand jury presentation of September 28, 2011. After hearing
oral argument on May 3, the judge issued a written decision and
entered a conforming order denying the motion on June 8.
Defendant moved for a severance, which was granted by order
dated June 19.
Defendant then sought leave to appeal the denial of his
motion to dismiss, which this court denied on July 27, 2012.
Defendant's petition for certification was denied by the Supreme
Court on October 5.
On December 14, 2012, the court wrote to all counsel
setting a date in April for "the motion regarding the remaining
minimization issue" and required the State to turn over
A-3875-13T1 7
minimization instructions6 "as soon as possible." In separate
correspondence to defense counsel and the prosecutor, the judge
ordered the State to "inform defense counsel of all the tapes it
intends to play at trial no later than Friday, January 4, 2013."
The Driver hearing was set for February 22, 2013. On January
17, the prosecutor provided transcripts of phone calls and text
messages that the State would seek to introduce as evidence.
The judge held a Driver hearing solely as to defendant on
April 10, May 2 and May 14, 2013. Weitz was the only witness
called by the State. During cross-examination on May 2, Weitz
could not identify who was monitoring a specific intercept, but
asserted the information would be available from the DEA, which
employed a "Voice Box" technology to record the information.
Defense counsel stated that he had made a request in discovery
for all this information, yet it had not been furnished. At the
end of the hearing, the judge orally ruled that the intercepts
were audible and "are all appropriate and . . . admissible."
He set a September trial date.
Defense counsel noted his objection to executing a June 3,
2013 pre-trial memorandum because discovery was incomplete, but
he requested, and the judge granted, a brief adjournment to
6 "Minimization instructions" are those procedures utilized by the State during the pendency of the wiretap to comply with the minimization requirements of N.J.S.A. 2A:156A-12.
A-3875-13T1 8
further discuss a potential plea agreement. Two days later,
with no plea agreement having been reached, the judge reaffirmed
the September 16, 2013 trial date and denied defendant's pending
speedy trial motion.7
Discovery issues continued to plague the proceedings. In
July, the State forwarded the names of its anticipated expert
witnesses, as well as numerous, additional intercepts it
intended to use at trial. In August, the State sought an order
to secure a voice exemplar from defendant. By the time a
conference was held on August 12 to resolve all outstanding
discovery, defendant had again filed motions seeking to dismiss
based upon the failure to produce discovery and the lack of a
speedy trial. The judge denied the motions.
Defendant again sought leave to appeal. Motion practice
before this court ensued when defendant moved to strike the
State's letter-brief in opposition. The September 16, 2013
trial date was adjourned at defendant's request, and, on
September 30, we denied defendant's motion for leave to appeal,
preserving his "claim that he has been denied his right to a
7 Defendant's reference in his brief to this motion actually cites to another speedy trial motion filed in August 2013. We gather, however, from the judge's comments, that indeed a speedy trial motion was pending.
A-3875-13T1 9
speedy trial . . . for a future plenary appeal . . . ." We also
denied defendant's motion to strike.
In November, the State supplied the identity of the DEA
agent who would testify regarding the operation of the "Voice
Box." The judge set a December date to, in essence, re-open the
Driver hearing as to the additional intercepts and the
information obtained from the DEA. He noted that defense
counsel's illness required the trial date be adjourned to
January 2014.
On November 25, 2013, defendant served a three-page letter
request upon the prosecutor and the DEA for additional
discovery, all of which involved information regarding the
wiretap and the DEA's operation of the "Voice Box," including
specifications for the device and its software. The DEA refused
to furnish any information.
On December 12, 2013, the return date for the continued
Driver hearing, defense counsel advised that defendant reviewed
the additional intercepts, and "there is no audibility issue."
Counsel noted the State's transcripts of the intercepts were
"largely accurate." However, defense counsel also explained
that, based upon a conversation with the DEA, the prosecutor
could obtain the information from the DEA if the State made the
request. Apparently, the State produced two witnesses who
A-3875-13T1 10
testified at the continued Driver hearing, but we have not been
provided with any transcript of those proceedings.
On December 24, 2013, defendant entered his guilty plea.
II.
Defendant asserts it was error to deny his motion to
dismiss the indictment based upon improprieties before the grand
jury. Defendant first argues that the delay between the July
2011 orientation, where instructions were provided on various
CDS offenses, and the actual presentation of the case in
September 2011, was too long, and the instructions provided at
both sessions were confusing, or otherwise, inaccurate.
"The trial court's decision denying defendant's motion to
dismiss [his] indictment is reviewed for abuse of discretion."
State v. Saavedra, 222 N.J. 39, 55 (2015) (citing State v.
Hogan, 144 N.J. 216, 229 (1996)). "[B]ecause grand jury
proceedings are entitled to a presumption of validity,"
defendant bears the burden of demonstrating the prosecutor's
conduct requires dismissal of the indictment. State v. Francis,
191 N.J. 571, 587 (2007).
"A prosecutor must charge the grand jury 'as to the
elements of specific offenses.'" State v. Eldakroury, 439 N.J.
Super. 304, 309 (App. Div.) (quoting Triestman, supra, 416 N.J.
Super. at 205), certif. denied, 222 N.J. 16 (2015). "However,
A-3875-13T1 11
. . . nothing in the New Jersey Constitution demands 'a verbatim
reading of applicable statutes or a recitation of all legal
elements of each charge . . . .'" State v. Hogan, 336 N.J.
Super. 319, 340 (App. Div.) (quoting State v. Laws, 262 N.J.
Super. 551, 562 (App. Div.), certif. denied, 134 N.J. 475
(1993)), certif. denied, 167 N.J. 635 (2001). "Incomplete or
imprecise grand-jury instructions do not necessarily warrant
dismissal of an indictment; rather, the instructions must be
'blatantly wrong.'" Triestman, supra, 416 N.J. Super. at 205
(quoting Hogan, supra, 336 N.J. Super. at 344). "[A]n
indictment should not be dismissed unless the prosecutor's error
was clearly capable of producing an unjust result. This
standard can be satisfied by showing that the grand jury would
have reached a different result but for the prosecutor's error."
Hogan, supra, 336 N.J. Super. at 344.
Defendant relies extensively on Triestman, arguing that the
prosecutors here supplied incomplete or incorrect instructions,
which, together with the timespan between the July orientation
and the September 2011 vote, meant the grand jurors were misled
or confused about the law when they returned the indictment. We
reject this argument.
In Triestman, a panel of our colleagues concluded that the
prosecutor omitted certain information regarding criminal sexual
A-3875-13T1 12
contact in the initial instructions provided at orientation, and
the actual instructions provided at the time of the vote failed
to explicitly explain which provision of the statute was under
consideration. Triestman, supra, 416 N.J. Super. at 206-07.
Additionally, the panel noted that "[t]he misleading effect of
this charge was compounded by the passage of more than two
months before the prosecutor presented this case." Id. at 207.
The panel referred the matter to the Criminal Practice Committee
for further consideration. Ibid. n.4.8
We are skeptical that the minor deviations cited in
Triestman required dismissal of the indictment. As the above
cases demonstrate, it is not necessary that the prosecutor
reiterate complete instructions on the law before every vote.
The reality is that a grand jury, once empaneled, hears cases on
a regular basis. The grand jury in this case met every week.
We cannot say with certainty whether any particular instructions
were reiterated during the relevant time frame, but it is likely
they were.
More importantly, the criminal offenses considered by the
grand jury in this case – conspiracy to distribute, and
possession with intent to distribute, CDS — were not
8 We are unaware of any activity occasioned by the panel's referral.
A-3875-13T1 13
complicated. In Triestman, the grand jurors were considering
the charge of criminal sexual contact, a crime that the Code
defines in a variety of factual circumstances, and only by
reference to the definitions included in the offense of sexual
assault. See N.J.S.A. 2C:14-3 (criminal sexual contact);
N.J.S.A. 2C:14-2 (sexual assault). As the Triestman panel
noted, the prosecutor in that case made generic references to
"sexual assault," failing to specify which particular subsection
of the statute provided a basis for indicting the defendant for
criminal sexual contact. Id. at 207. In this case, unlike
Triestman, the average grand juror could fully recall and
understand the elements of the crimes he or she was considering,
particularly since the prosecutor provided specific instructions
on those particular crimes before the vote.
Lastly, the errors or omissions defendant points to in the
orientation instructions or the specific instructions provided
in September 2011 were insignificant. As noted above only
"blatantly wrong" mistakes that could "clearly [be] capable of
producing an unjust result" compel the granting of a motion to
dismiss the indictment based on faulty legal instructions.
Hogan, supra, 336 N.J. Super. at 344. Defendant has failed to
meet that burden.
A-3875-13T1 14
Secondly, defendant contends that prosecutorial misconduct
during the July 2011 orientation provides an independent basis
for dismissal. An indictment may be dismissed if the
prosecutor's misconduct "is extreme and clearly infringes upon
the [grand] jury's decision-making function[.]" State v.
Murphy, 110 N.J. 20, 35 (1988) (alteration in original)
(emphasis added). Only where the violation substantially
influenced the grand jury's decision to indict, or there is
grave doubt that the determination ultimately reached was
arrived at fairly and impartially, will an indictment be
dismissed. State v. Engel, 249 N.J. Super. 336, 360 (App.
Div.), certif. denied, 130 N.J. 393 (1991). Simply put, the
prosecutor may not subvert the grand jury process. Ibid.;
see, e.g., State v. Schamberg, 146 N.J. Super. 559, 564 (App.
Div.) (considering prosecutor's statement made to witness
testifying before the grand jury that prosecutor believed the
witness had just committed perjury), certif. denied, 75 N.J. 10
(1977); State v. Hart, 139 N.J. Super. 565, 568-69 (App. Div.
1976) (reviewing prosecutor's statement of personal belief that
grand jurors had erred in failing to indict defendant, resulting
in reconsideration and subsequent indictment).
Here, defendant points to comments made by the prosecutor
during the July 6, 2011 orientation session that "trivialized
A-3875-13T1 15
and desecrated the [g]rand [j]ury process," and denied him the
protections inherent in that process. See In re Loigman, 183
N.J. 133, 138-39 (2005) ("The grand jury has fulfilled its
'historic purpose [by] standing between the defendant and the
power of the State, protecting the defendant from unfounded
prosecutions.'") (quoting State v. Fortin, 178 N.J. 540, 638
(2004)).
During the July 6, 2011 orientation, the prosecutor began
by explaining the role of the grand jury, and how it differed
from a petit jury. She described the "levels of screening"
within the prosecutor's office, saying, "I don't want you guys
to think that there haven't been 107 hands on the files before
you hear about them." In explaining the different burden of
proof required at trial, she said, "you guys are just here
basically to decide whether or not there's enough evidence that
this person committed a crime. You know, enough evidence to
basically inconvenience him enough to have to come to court and
answer to it." Anticipating the afternoon's narcotics
orientation, the prosecutor told the grand jurors it would be
presented by one of her office's "experienced narcotics officers
. . . who have done major buys, like kilos and kilos of cocaine
and really have great experience." She explained it would be
"fun."
A-3875-13T1 16
The prosecutor's unique role before the grand jury compels
certain professional obligations. Francis, supra, 191 N.J. at
586-87. We do not condone, therefore, these flippant and
irreverent remarks. We cannot conclude, however, that defendant
suffered prejudice as a result, or that the judge mistakenly
exercised his discretion by denying defendant's motion to
dismiss on this ground. Any harmful effects from the
prosecutor's comments in July were ameliorated by the
presentation in September, when the grand jury specifically
considered the evidence against defendant on the two charges for
which he was indicted.
Moreover, the errors that defendant points to in the
prosecutor's legal instructions during the orientation session
were minor, as were any errors in the instructions provided in
September. We find no basis to reverse.
III.
Defendant argues the judge erred in denying his motions to
dismiss the indictment for violation of his right to a speedy
trial. Recently, in State v. Cahill, 213 N.J. 253, 258 (2013),
the Court reiterated "that the four-factor balancing analysis of
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972), remains the governing standard to evaluate claims of a
denial of the federal and state constitutional right to a speedy
A-3875-13T1 17
trial[.]" Those four factors are: "length of the delay, reason
for the delay, assertion of the right by a defendant, and
prejudice to the defendant." Id. at 264 (citing Barker, supra,
407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). "None
of the Barker factors is determinative, and the absence of one
or some of the factors is not conclusive of the ultimate
determination of whether the right has been violated." Id. at
267 (citing Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2193,
33 L. Ed. 2d at 118).
"[T]he factors are interrelated, and each must be
considered in light of the relevant circumstances of each
particular case." State v. Tsetsekas, 411 N.J. Super. 1, 10
(App. Div. 2009) (citing Barker, supra, 407 U.S. at 533, 92
S. Ct. at 2193, 33 L. Ed. 2d at 118). Thus, "[i]n reviewing the
Law Division's findings, we reverse only if the court's
determination is clearly erroneous." Ibid. (citing State v.
Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977)).
We agree with defendant that the "length of delay" factor
is calculated from the filing of the initial charges, not the
return of the superseding indictment. See State v. Szima, 70
N.J. 196, 199-200 (1976) ("[I]t is clear that the protection of
the Sixth Amendment attaches upon arrest on a criminal charge
and need not await indictment or information."). Nevertheless,
A-3875-13T1 18
the nature of the prosecution is a necessary component of the
calculus in evaluating the length of any delay. See Barker,
supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117
("To take but one example, the delay that can be tolerated for
an ordinary street crime is considerably less than for a
serious, complex conspiracy charge.").
Here, the investigation leading to defendant's arrest and
indictment was complicated and involved multiple jurisdictions
and law enforcement agencies, including the federal government.
More than two dozen people were charged in the first indictment.
The judge addressed these factors when considering the
"[c]losely related" second Barker factor, i.e., the reasons for
the delay. Ibid. The judge found the case was complex
"involv[ing] wiretaps, conversations, various municipalities,
prosecutors' investigators." The judge specifically found that
there was no delay attributable to the State "for [the] purpose
of some strategic advantage."
There can be no question that defendant promptly asserted
his right to a speedy trial, did so consistently and attempted
to vindicate that right through interlocutory appellate review.
Certainly, however, that strategic choice exacerbated the delay.
Nevertheless, on balance, the third Barker factor weighs heavily
in defendant's favor. However, in addressing the fourth factor,
A-3875-13T1 19
the judge found minimal personal prejudice and no actual
prejudice to defendant as a result of the delays.

Outcome: In sum, the judge fairly considered the Barker factors and
fairly applied the balancing test required. We find no reason
to disturb the judge's conclusion that defendant's right to a
speedy trial had not been violated so as to warrant dismissal of
the indictment.
Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: