STATE OF NEW JERSEY v. TODD DORN

We are called upon to determine whether defendant Todd

Dorn’s right to a grand jury presentment under the New Jersey

Constitution was violated when the trial court permitted the

State, on the eve of trial, to increase the charge in count two

of defendant’s indictment from a third-degree to a second-degree

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drug offense. We are also asked whether it was proper for the

trial court to admit into evidence a copy of a map showing that

defendant’s home was within 500 feet of public housing, a public

park, or public building.

Defendant was indicted for various drug-related offenses,

including two counts of second-degree possession of a controlled

dangerous substance (CDS) with the intent to distribute within

500 feet of public housing, a public park, or public building.

The first count related to defendant’s possession of heroin, a

second-degree offense, and the second count related to

defendant’s possession of seventy-five grams of marijuana,

listed in the indictment as a third-degree charge. The day

before the trial began, the trial court, over defendant’s

objection, permitted the State to amend the second count in

defendant’s indictment from a third-degree to a second-degree

charge, citing administrative error.

At trial, the State submitted -- and the trial court

admitted into evidence -- a copy of a map showing that

defendant’s home was within 500 feet of public housing, a public

park, or public building. Defendant objected to the admission

of the map on the ground that it was a copy without a raised

seal.

We conclude that the amendment to count two of defendant’s

indictment was a violation of defendant’s right to grand jury

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presentment under the New Jersey Constitution, and we remand the

conviction on count two to the trial court. We also find that

defendant waived his right to object to the map’s

authentication.

I.

The facts contained in the appellate record reveal that

Atlantic City Police Sergeant Richard Andrews was patrolling the

area of 615 Green Street, a public housing complex where

defendant lived. Andrews saw a Jeep parked in front of the home

and a person, later identified as Jamie Guth, walking toward the

front door. As Andrews drove past the Jeep in his marked police

car, the driver of the Jeep appeared nervous. The driver then

drove around the block and eventually returned to the Green

Street home where Guth re-entered the Jeep. The Jeep drove off,

and Andrews radioed other officers in the area who pulled the

Jeep over.

When Guth exited the Jeep, an officer saw a brick of heroin1

protruding from Guth’s bra. Officers arrested Guth and, in

addition to the heroin, found green glassine baggies stamped

with the word “Thriller.” Officers later interviewed Guth who

stated that she had purchased the heroin from a man she knew as



1 A brick of heroin is fifty bags.

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“Ty.” Guth identified a photograph of defendant as Ty, the man

from whom she had purchased the heroin.

Thereafter, police began surveillance of the Green Street

home. During the surveillance, police saw defendant and a woman

leave the home and drive away. They followed defendant and

eventually executed a stop of defendant’s vehicle and arrested

defendant for drug distribution.

The arresting officers told defendant that the officers

were in the process of applying for a search warrant for his

home. According to the officer, defendant responded that “there

was no need to do all that, that [defendant] just had a little

in the house and he would take [him] to it.” Defendant signed

two consent-to-search forms, one permitting police to enter and

search defendant’s home and one permitting police to search

defendant’s vehicle. Police found nothing during the subsequent

vehicle search, but they did find thirty-five glassine baggies

in the house with “Thriller” stamped on them; the baggies

contained “a white powdery substance believed to be heroin.”

Police also found 75.01 grams of marijuana2 in defendant’s home.



2 75.01 grams equals 2.65 ounces. N.J.S.A. 2C:35-7.1(a) provides that the possession of more than one ounce of marijuana with the intent to distribute within 500 feet of public housing, a public park, or public building is a second-degree offense, whereas the possession of less than one ounce of marijuana under the same circumstances is a third-degree offense.

5



An Atlantic County Grand Jury indicted defendant for

second-degree possession of heroin with the intent to distribute

within 500 feet of public housing, a public park, or public

building, contrary to N.J.S.A. 2C:35-7.1 (count one); third

degree possession of marijuana with the intent to distribute

within 500 feet of public housing, a public park, or public

building, contrary to N.J.S.A. 2C:35-7.1 (count two); third

degree distribution of CDS (heroin), contrary to N.J.S.A. 2C:35

5(a)(1) and (b)(3) (count three); third-degree possession of

heroin with the intent to distribute, contrary to N.J.S.A.

2C:35-5(a)(1) and (b)(3) (count four); third-degree possession

of one or more ounces of marijuana with the intent to

distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(11)

(count five); and fourth-degree possession of more than fifty

grams of marijuana, contrary to N.J.S.A. 2C:35-10(a)(3) (count

six).3

Defendant rejected the State’s pretrial plea offer of a

five-year term of imprisonment with a two-and-a-half year period

of parole ineligibility and instead chose to proceed to trial.

According to defendant, he rejected the State’s plea offer



3 The Appellate Division panel noted that, initially, the grand jury had indicted defendant on “various CDS offenses,” but that the grand jury had returned a superseding indictment thereafter. The charges laid out here reflect those included in the superseding indictment. The original indictment does not appear in the record.

6



because it was his understanding that his maximum sentencing

exposure was twenty years’ imprisonment with a ten-year period

of parole ineligibility.

One day before trial, the State moved under Rule 3:7-4 to

amend count two of the indictment from third-degree possession

of marijuana with the intent to distribute within 500 feet of

public housing, a public park, or public building, to a second

degree offense. The prosecutor claimed that:

if you take it in conjunction with the grand jury transcripts which I have where they talk about the quantity, and additionally count [five] of the indictment where it is clear the marijuana is over one ounce, the defendant is placed on notice, it is a second-degree offense. It is an error in form, not an error in substance. Defense counsel argued that elevating the charge to a second

degree offense was a substantive alteration, not merely an

alteration in form.

The trial court granted the State’s motion and amended

count two of the indictment from a third-degree offense to a

second-degree offense. The court stated,

They are not amending the substance of the charge at all. There is and I am satisfied a typographical error in that it is a seconddegree, and while it would have been preferable to include in the body of that count the amount of marijuana. From reading count [five], it’s clear that the grand jury had information that they believed to be credible, so that they returned count [five]

7



which specifically indicates the quantity of over one ounce.



During the presentation of the State’s case, the prosecutor

offered into evidence, through the testimony of an officer

involved in the investigation, a copy of a “zone map for drug[,]

DUI[,] and weapon free zones and public housing.” According to

the officer’s testimony, the map “designate[d] 500 square feet

around a public park, a public housing facility, a public

building,” and “recreational sites.” Defense counsel objected

to the map’s admission into evidence on the grounds that (1) the

map was a copy and (2) the State should have provided a copy of

the map with a raised seal. In response, the trial court

stated, “I personally don’t think it’s necessary to bring in the

city engineer. Having said that, since this is a copy, although

I think copies are allowable, if you insist, I’m not going to

object to that, I’ll just say, okay, you got to do it.” Defense

counsel did not accept the trial court’s offer to require the

State to produce the city engineer and merely renewed his

objection to the admission of the copy into evidence. The trial

court found that the document was “self-authenticating” and

admitted the map under N.J.R.E. 902.

At the close of the State’s case-in-chief, defendant moved

to dismiss counts one and two, charging defendant with

possession of heroin and marijuana with the intent to distribute

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within 500 feet of public housing, a public park, or public

building, arguing that the map should not have been admitted

because it did not bear a raised seal. The court denied the

motion, and the jury convicted defendant on all six counts in

the indictment, including the amended second-degree offense in

count two.

The Appellate Division affirmed defendant’s conviction,

finding that count five of the indictment put defendant on

notice that he stood accused of possessing more than one ounce

of marijuana, a second-degree offense, notwithstanding the

“administrative or clerical” error by which count two was

designated as a third-degree charge. Thus, the Appellate

Division found no error in permitting the amendment to count

two. The panel also rejected defendant’s claim that the map’s

admission into evidence violated his right to confrontation,

noting that the issue was raised for the first time on appeal

and that defendant failed to demonstrate that the map’s

admission was “clearly capable of producing an unjust result.”

The panel vacated defendant’s sentence on count one and

remanded the matter for resentencing and a determination as to

whether the sentences under counts one and two should be

concurrent or consecutive. On remand, the court sentenced

defendant to ten years’ imprisonment with a five-year term of

parole ineligibility on count one and a concurrent ten-year term

9



of imprisonment with a five-year ineligibility term for count

two. The court declined to impose a discretionary extended-term

sentence for count one.

This Court granted certification on two issues:

[(]1) whether the trial court erred in admitting into evidence a map identifying areas within 500 feet of public parks and buildings; and [(]2) whether defendant’s right to a grand jury indictment was violated when the trial court permitted the prosecutor to amend the indictment and expose defendant to greater criminal liability.



[229 N.J. 622 (2017).]



II.

A.

As to the admission of the map, defendant asserts that this

Court’s decision in State v. Wilson, 227 N.J. 534 (2017), should

apply here and that the State failed to provide any

authenticating testimony or evidence beyond the certification of

the map’s engineer, which was insufficient.

Regarding the amendment of count two, defendant argues that

the trial court bypassed the grand jury’s function under the New

Jersey Constitution when it permitted the State to amend the

indictment to reflect a higher degree of crime without first

consulting the grand jury. Defendant also contends that the

trial court’s decision in this case violates Rule 3:7-4, which

permits courts to modify indictments to correct errors in form

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as long as the defendant has adequate notice of the allegations

and defendant will not be prejudiced by the amendment.

Defendant asserts that he was entitled to know the full extent

of his penal exposure when he decided to proceed to trial.

Defendant therefore asks this Court to remand count two for new

proceedings or for entry of an amended judgment of conviction

for third-degree, rather than second-degree, possession with the

intent to distribute.

B.

The State argues that Wilson is not applicable and that the

State properly authenticated the map through an investigating

officer’s testimony under the pre-Wilson rule.

The State also claims that the indictment, taken as a

whole, put defendant on notice that the third-degree charge in

count two was a typographical error. The State reminds the

Court that count five charged defendant with having over two

ounces of marijuana in his possession, and count one charged

defendant with second-degree possession with the intent to

distribute under the same statute for the heroin found in his

home.

III.

We begin our discussion by dispensing with defendant’s

assertion, purportedly relying on Wilson, that the State failed

to provide any authenticating testimony or evidence beyond the

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certification of the map’s engineer, which was insufficient. In

Wilson, the State produced testimony by a detective from the

prosecutor’s office who was unable to testify to the map’s

accuracy. Id. at 540. The defendant objected, arguing that the

map was testimonial hearsay and that its admission violated his

confrontation rights because the State did not produce a witness

who had either prepared the map or could testify to its

accuracy. Id. at 541-42. This Court held that such maps are

not self-authenticating, id. at 553, and explained that

“[p]roper authentication of the map require[s] a witness who

[can] testify to its authenticity and be cross-examined on the

methodology of the map’s creation and its margin of error,”

ibid. (citing State v. Simbara, 175 N.J. 37, 47-48 (2002)).

Here, defendant failed to timely object to the map’s

authentication. When the State attempted to move the map into

evidence at trial, defense counsel objected only on the ground

that the map presented in court was a copy of the official map

and that the State should have to produce a copy with a raised

seal or the original. In response, the trial court stated that

although a copy is permissible, he could require the State to

produce the city engineer to testify. Defense counsel then

failed to accept the trial court’s offer to require that the

State produce the city engineer. Instead, defense counsel

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merely renewed his objection to the admission of the copy into

evidence.

Defense counsel never objected to the map as testimonial,

or claimed its admission without proper authentication violated

defendant’s right to confrontation. The objection put forth was

based only on admission of a copy rather than the original. We

conclude, therefore, that defendant failed to raise

authentication of the map under Wilson as an issue before the

trial court. Because defense counsel did not object on the same

ground on which he challenges the admission of the map before

this Court, we would ordinarily review the admission of the map

for plain error. See State v. Nunez, 436 N.J. Super. 70, 76

(App. Div. 2014).

We do not reach plain error review, however, because we

find that defendant waived any objection to the map’s

authenticity or to the fact that it is a copy when defense

counsel did not accept the trial court’s offer to require the

State to bring in the city engineer to testify, and instead

proceeded as if the offer had never been made. It is a

longstanding principle that litigants may waive objections

through inaction. See Agnew v. Campbell’s Adm’rs, 17 N.J.L.

291, 298 (Sup. Ct. 1839) (Dayton, J., concurring) (noting that

counsel could, “by their silence” and failure to call sealing

judge to testify, waive their objection to, and therefore their

13



right to test, authenticity of judicial seal placed on bill of

exceptions); accord State v. T.J.M., 220 N.J. 220, 231 (2015)

(finding objection waived where counsel raised “tepid complaint”

of prosecutorial misconduct before trial court and then, when

trial court “expressly” discussed issue with counsel, “dropped

the topic and began to argue another issue instead”).

Here, counsel’s objection was lacking as to the

authentication of the map, see Wilson, 227 N.J. at 534, and the

defense failed to avail itself of the opportunity to test the

authenticity of the map offered by the trial court. We

therefore find that counsel waived any objection as to the map’s

authentication.

IV.

A.

We now turn to whether defendant’s right to a grand jury

indictment was violated when the trial court permitted the

prosecutor to amend count two of the indictment.

The New Jersey Constitution provides that

[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases now prosecuted without indictment, or arising in the army or navy or in the militia, when in actual service in time of war or public danger.



[N.J. Const. art. I, ¶ 8.]

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This Court has stated that the right is satisfied where the

indictment “inform[s] the defendant of the offense charged

against him, so that he may adequately prepare his defense,”

State v. LeFurge, 101 N.J. 404, 415 (1986) (quoting State v.

Lefante, 12 N.J. 505, 509 (1953)), and is “sufficiently

specific” both “to enable the defendant to avoid a subsequent

prosecution for the same offense” and “‘to preclude the

substitution by a trial jury of an offense which the grand jury

did not in fact consider or charge,’” ibid. (quoting State v.

Boratto, 80 N.J. 506, 519 (1979)).

To meet those criteria, an “indictment must allege all the

essential facts of the crime.” Id. at 418 (quoting State v.

LaFera, 35 N.J. 75, 81 (1961)). Thus, “the State must present

proof of every element of an offense to the grand jury and

specify those elements in the indictment.” State v. Fortin, 178

N.J. 540, 633 (2004). Said another way, in determining the

sufficiency of an indictment under the New Jersey Constitution,

“[t]he fundamental inquiry is whether the indictment

substantially misleads or misinforms the accused as to the crime

charged. The key is intelligibility.” State v. Wein, 80 N.J.

491, 497 (1979). In making that determination, the court looks

to whether the indictment is sufficiently specific “to preclude

the substitution by a trial jury of an offense which the grand

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jury did not in fact consider or charge.” LeFurge, 101 N.J. at

415 (quoting Boratto, 80 N.J. at 519).

By court rule,

[t]he court may amend the indictment . . . to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense.



[R. 3:7-4.] An error relating to the substance or “essence” of an offense

cannot be amended by operation of that rule. See State v.

Middleton, 299 N.J. Super. 22, 34 (App. Div. 1997); Pressler &

Verniero, Current N.J. Court Rules, cmt. 1 on R. 3:7-4 (2018).

Courts may generally grant leave to amend a date in an

indictment, but the court may not do so where such an amendment

goes to the core of the offense or where it would prejudice a

defendant in presenting his or her defense. See Middleton, 299

N.J. Super. at 34. Likewise, a trial court may amend an

indictment charging a defendant with first-degree robbery to

change the type of weapon used because only the presence of a

weapon, not the type of weapon, is an essential element of

first-degree robbery. See State v. Lopez, 276 N.J. Super. 296,

307 (App. Div. 1994). Similarly, a court may amend an

indictment for aggravated sexual assault to change the body part

16



that the defendant is accused of touching because, as with the

weapon in Lopez, the particular intimate body part touched is

not an element of aggravated sexual assault. See State v. J.S.,

222 N.J. Super. 247, 257-58 (App. Div. 1988).

Under the circumstances reviewed in Lopez and J.S., there

was no prejudice to the defendants or lack of notice of the

charges against them. See Lopez, 276 N.J. Super. at 307; J.S.,

222 N.J. Super. at 257-58. However, the degree of a crime is an

essential element that must be included in the indictment. See,

e.g., State v. Catlow, 206 N.J. Super. 186, 194-95 (App. Div.

1985).

In Catlow, the defendant was charged with robbery in an

indictment that did not provide any degree of offense and, over

the defendant’s objection, the trial court instructed the jury

on first-degree robbery. Ibid. The Appellate Division reversed

because it “consider[ed] determination of the degree of a crime

to be an essential element of the grand jury function” and, even

though the State presented evidence that the grand jury heard

testimony relating to a first-degree offense, the robbery count

of the indictment provided no facts or statutory language

demonstrating that the State had provided to the grand jury

sufficient evidence of a first-degree charge. Ibid. The panel

went on to say that

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[t]he State’s reference to the distinction between first and second-degree robbery as being merely one of grading is to our view unrealistic in light of the importance of such distinction to a defendant. This distinction may be of far greater consequence to an accused than the obtaining of an acquittal on a crime of a lesser degree.



[Id. at 195.]

See also State v. Smith, 253 N.J. Super. 145, 148 n.2 (App. Div.

1992) (noting that factors relating to the degree of offense

should be treated “as elements of the offense to be decided by

the fact finder”); cf. State v. D’Amato, 218 N.J. Super. 595,

605-07 (App. Div. 1987) (recognizing that grading provisions are

elements of offense but finding no plain error when indictment

failed to specify that defendant was charged with third-degree

theft, because he testified that he had sold victim’s jewelry

for an amount that exceeded threshold amount for third-degree

offense).

Similarly, a “trial court may not amend an indictment to

charge a more serious offense,” State v. Orlando, 269 N.J.

Super. 116, 138 (App. Div. 1993), because the amendment would

subject the defendant to a charge of “an entirely different

character and magnitude,” thereby depriving him of the

opportunity to mount a meaningful defense, cf. State v. Koch,

161 N.J. Super. 63, 65-67 (App. Div. 1978). For example, the

State is required to enumerate the value of stolen goods in a

18



theft charge because that fact impacts the degree of the crime

charged and, therefore, the extent of a defendant’s penal

exposure; it is thus an element of the crime. See D’Amato, 218

N.J. Super. at 607.

In sum, the analysis as to whether an indictment was

sufficient and whether an amendment under Rule 3:7-4 was

appropriate hinges upon whether the defendant was provided with

adequate notice of the charges and whether an amendment would

prejudice defendant in the formulation of a defense. See

LeFurge, 101 N.J. at 415; Middleton, 299 N.J. Super. at 34;

Lopez, 276 N.J. Super. at 307; J.S., 222 N.J. Super. at 257-58;

Catlow, 206 N.J. Super. at 194-95; Koch, 161 N.J. Super. at 65

66.

B.

Applying those principles to the case before us, we first

reiterate that the degree of the charged crime is an essential

element of the crime that must be included in the indictment.

As the Appellate Division noted in Catlow, a change in the

degree of offense charged has the potential to significantly

alter a defendant’s penal exposure. See 206 N.J. Super. at 194

95. Thus, a degree determination is distinct from details such

as the weapon used in a robbery or the particular intimate body

part touched in an aggravated sexual assault because alterations

in those details do not heighten the liability a defendant

19



faces. See Lopez, 276 N.J. Super. at 307; J.S., 222 N.J. Super.

at 257-58; Catlow, 206 N.J. Super. at 194-95. Rather, the

degree determination is analogous to the requirement that the

State enumerate the value of stolen goods in a theft charge, a

fact that impacts the extent of a defendant’s exposure and is,

therefore, an element of the crime. See D’Amato, 218 N.J.

Super. at 605-07.

Here, the trial court and Appellate Division found that

count five put defendant on notice that he would be charged with

a second-degree offense in count two because count five

specifically charged that defendant possessed more than one

ounce of marijuana. According to the trial court and Appellate

Division, that fact -- in conjunction with the citation to

N.J.S.A. 2C:35-7.1 in count two -- put defendant on notice that

count two should have been a second-degree charge. The State

adds that count one provided further notice as to the degree of

count two.

We disagree that the other counts of the indictment put

defendant on notice that he would have to defend against a

higher-degree offense than the one charged. Although the count

five charge apprised defendant that he would defend against

allegations of third-degree possession of more than one ounce of

marijuana, nothing on the face of that count of the indictment

connected that fact to the count two charge. Similarly, while

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count one refers to N.J.S.A. 2C:35-7.1, it charges second-degree

possession with the intent to distribute heroin, not the

marijuana charged in count two. Thus, this case is analogous to

Catlow, where the Appellate Division correctly found that it was

error for the trial court to instruct the jury on a first-degree

offense because the count in the indictment did not contain

specific allegations going to an essential element of the

offense -- the degree. 206 N.J. Super. at 194-95.

To be sure, the State submitted evidence of defendant’s

possession of more than one ounce of marijuana to the grand

jury. However, the indictment makes no mention of the weight of

the marijuana in count two. Thus, even though the grand jury

heard evidence and returned an indictment to that effect in

count five, there is nothing in the record demonstrating that

the grand jury intended to charge defendant with possession of

more than one ounce of marijuana in count two or for the

defendant to face the heightened criminal liability associated

with the higher-degree charge.

Defendant alleges that he was told -- prior to the

amendment -- that he faced a maximum sentence of twenty years’

imprisonment, not the thirty years he faced as a result of the

eve-of-trial amendment. Defendant further claims that he

declined the State’s plea offer of five years and proceeded to

trial in light of that information.

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When determining how best to mount a defense against the

charges leveled against them, defendants regularly consider

whether to accept or reject a plea offer. We make no

determination as to whether defendant would, in fact, have

accepted the plea offer had he been aware that he would face up

to thirty years’ imprisonment. Nevertheless, defendant was

entitled to have that information in hand when deciding whether

to accept or reject the State’s plea offer. Therefore, failing

formally to apprise defendant of the State’s intent to seek

conviction on a second-degree offense in count two until the day

before trial began prejudiced defendant.

We conclude that the trial court improperly permitted the

State to amend count two of the indictment from a third-degree

to a second-degree offense because the amendment was substantive

and because defendant was prejudiced by the amendment. See R.

3:7-4. For that reason, the conviction as to count two must be

amended to reflect that defendant was convicted of the offense

on which he was indicted –- a third-degree offense -– and

defendant must be resentenced on that count.

For the reasons set forth above, we affirm in part and

reverse in part the judgment of the Appellate Division. We

remand to the trial court for further proceedings consistent

with this opinion.