State of New Jersey v. James E. Jones and Likisha

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3600-13T2
A-4230-13T1

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

Plaintiff-Respondent, June 15, 2016

v. APPELLATE DIVISION

JAMES E. JONES and LIKISHA JONES,

Defendants-Appellants,

and

GODFREY J. GIBSON,

Defendant.

Submitted February 24, 2016 – Decided June 15, 2016

Before Judges Alvarez, Haas, and Manahan.

On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 13-01-0049.

Christopher T. Campbell, attorney for
appellant Likisha Jones in A-3600-13.

Joseph E. Krakora, Public Defender, attorney
for appellant James E. Jones in A-4230-13
(Jason A. Coe, Assistant Deputy Public
Defender, of counsel and on the briefs).

John J. Hoffman, Acting Attorney General,
attorney for respondent State of New Jersey
in A-3600-13 (Daniel I. Bornstein, Deputy
Attorney General, of counsel and on the
brief).
 John J. Hoffman, Acting Attorney General,
attorney for respondent State of New Jersey
in A-4230-13 (Joseph A. Glyn, Deputy
Attorney General, of counsel and on the
brief).

The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

Co-defendants Likisha Jones1 and James E. Jones appeal2

their convictions, contending that the five-year statute of

limitations bars their prosecution. See N.J.S.A. 2C:1-6(b)(1).

The matters are consolidated for decision as they involve one

course of events, one indictment, and raise duplicate claims of

error. Each defendant entered a guilty plea to third-degree

conspiracy to hinder apprehension and/or obstruct the

administration of law, N.J.S.A. 2C:5-2, 2C:29-3, and/or 2C:29-1,

and third-degree hindering apprehension, N.J.S.A. 2C:29-3(a).

They were sentenced on February 28, 2014, to two years'

probation. The remaining counts of the indictment were

dismissed as to these defendants.3

1
We refer to members of the Jones family by their first names
for the sake of clarity.
2
Godfrey Gibson, the third co-defendant, is not involved in the
appeal.
3
Only Gibson was indicted in two counts of second-degree
hindering.

2 A-3600-13T2
 Defendants contend that the Law Division judge erred in his

application of the DNA exception to the statute of limitations.

See N.J.S.A. 2C:1-6(c). He denied their pre-plea motion to

dismiss the indictment on that basis. Although we agree with

this contention, we also conclude that defendants' conduct over

ten years made the conspiracy a continuing offense, and

therefore the statute of limitations did not bar the prosecution

of that crime.

We now reverse the denial of the motion to dismiss the

indictment as to the counts which charged fourth-degree

tampering with evidence, N.J.S.A. 2C:28-6(1), hindering, and

fourth-degree obstruction, N.J.S.A. 2C:29-1(a). We affirm the

denial of the motion, albeit for different reasons,4 as to the

conspiracy count.

Because a conspiracy to obstruct is a fourth-degree crime,

the conviction also becomes a fourth-degree offense. See

N.J.S.A. 2C:5-4(a). Because of this anomalous outcome, the

dismissal of only one of defendants' two convictions and the

reduction in the degree of the remaining offense, they have the

option of withdrawing from their guilty pleas; the prosecution

4
"[A] correct result predicated upon an incorrect basis does not
preclude an affirmance of [a] ruling." Velazquez v. Jiminez,
336 N.J. Super. 10, 43 (App. Div. 2000), aff'd, 172 N.J. 240
(2002).

3 A-3600-13T2
would then proceed solely on the conspiracy count. In any

event, the matter is remanded for resentencing just on the

conspiracy charge.

I.

Defendants do not dispute the grim, tragic facts

surrounding the death of Jon-Niece Jones detailed by the

investigating officer before the grand jury on December 17,

2012.5 His testimony essentially reiterated his interview with

Iyonna Jones, the victim's sister. He also repeated information

supplied by defendants. We recount those facts here.

As a result of Iyonna's disclosures and DNA testing of

herself and her father, the authorities were able to identify a

child's charred bones, discovered in 2005 in an isolated wooded

spot near the New Jersey Turnpike. The DNA sample obtained from

Jon-Niece's father was also a match; he was confirmed as the

father of the victim.

Although Jon-Niece's birth was recorded, she never attended

school nor received medical or dental care. Over the course of

her life, her mother, Elisha Jones, neglected, physically

abused, and starved her.

5
The events are principally drawn from the grand jury
presentment.

4 A-3600-13T2
 On August 14, 2002, then nine-year-old Jon-Niece was

staying with her mother and then ten-year-old Iyonna at her

maternal aunt Likisha's home in New York City. Sometime that

day, Jon-Niece collapsed after being fed oatmeal and Elisha

returned her to a bedroom.

During the night, Iyonna remembers being awakened by

Elisha, who asked her for a garbage bag. Her mother then

disappeared into Jon-Niece's bedroom. The following morning

Elisha and Jon-Niece were gone.

Elisha left a note informing Likisha that Jon-Niece had

stopped breathing and that Elisha had gone back to her home in

Staten Island with the body. Iyonna remembered that after

Likisha found the note, she called James to come to the

apartment immediately. James is Likisha's brother, and Jon-

Niece and Iyonna's uncle.

Iyonna also remembered Likisha speaking to Elisha on the

phone, and that Elisha was frightened, "didn't know what to

do[,]" and stated that Jon-Niece "was sitting in a bucket [and]

bag, along with cement and gasoline." When Elisha said she

planned to burn down the building to get rid of the body,

Likisha told her to "hold off" and that "they" would go to

Staten Island. Iyonna recalled that Likisha, James, and

Likisha's husband Godfrey Gibson drove to Elisha's apartment.

5 A-3600-13T2
 James admitted that he was in the car when Gibson picked up

Elisha, who placed a green plastic bin in the back of Gibson's

vehicle. After travelling from Staten Island to a remote area

in New Jersey, James helped Elisha remove the bin —— which

smelled of gasoline —— from the car. He did not accompany her

into the woods, but while he was waiting, he saw a fire behind

the trees. James told the investigator that "the only thing

that kept him sane this entire time was that he did not see the

body."

A few days later, Likisha, Gibson, and James held a family

meeting at which they directed Iyonna to say Jon-Niece was with

her father if she was asked about her. Elisha died shortly

after Jon-Niece, in December 2002.

Iyonna remembered arguing with Likisha approximately four

years later and telling her that she was going to report Jon-

Niece's death. Likisha struck Iyonna, threatening that she too

would go to jail if she reported it.

When Iyonna was eighteen, James told her that Jon-Niece's

body had been burned and hidden in a dark area somewhere in New

Jersey. He said he had fallen asleep in the car and was unsure

of the exact location, but that "they" put the body in a bucket,

poured cement and water over it, and set it on fire.

6 A-3600-13T2
 Likisha's recollection was somewhat at variance with

Iyonna's. Likisha remembered that after Jon-Niece died during

the night, Elisha returned to her home in Staten Island. Elisha

left a note saying the child had stopped breathing, that she was

not coming back, and that she had used a laundry or shopping

cart to remove the body. When Likisha tried to contact Elisha,

she did not answer the phone.

Likisha recalled Elisha returning to the apartment in

Manhattan some time later, and that she spoke to Gibson outside.

Gibson, James, and Elisha took the car and were gone for several

hours. The men returned without her. When Likisha next talked

to her sister, Elisha told her to "stay out of her life."

After Elisha died, Likisha found another note, confirming

that Jon-Niece was dead. While in the process of cleaning out

Elisha's apartment, Likisha found a bag of cement and a shovel

in a closet.

In 2008, James watched an "America's Most Wanted" episode

titled "Baby Bones." As the program began, James phoned Likisha

to turn on her television. Both were upset, as the segment was

clearly about Jon-Niece. At that point, Likisha told James

about the letter Elisha had left behind.

On August 23, 2012, as the investigating officer who

testified before the grand jury arrived in Manhattan for his

7 A-3600-13T2
first meeting with Gibson and Likisha, Iyonna called him. She

said Gibson had just phoned and threatened to kill her if he

found out that she had spoken to the police.

When initially interviewed, James denied any involvement,

insisting Jon-Niece was with her father. When he eventually

acknowledged that the child was dead, he said Likisha was not in

the car when Jon-Niece's body was driven to New Jersey. Both he

and Likisha claimed that she stayed behind to watch the other

children in the home, including Iyonna.

II.

Likisha and James's pretrial motions to dismiss the

indictment were based on the five-year statute of limitations.

They argued that all the statutory elements of the crimes were

complete as of August 2002 and that therefore the indictment had

to be dismissed.

N.J.S.A. 2C:1-6(c), the DNA exception, provides that the

applicable statute of limitations

starts to run on the day after the offense
is committed, except that when the
prosecution is supported by physical
evidence that identifies the actor by means
of DNA testing or fingerprint analysis, time
does not start to run until the State is in
possession of both the physical evidence and
the DNA or fingerprint evidence necessary to
establish the identification of the actor by
means of comparison to the physical
evidence.

8 A-3600-13T2
 The Law Division judge agreed with the State's position

that the DNA match which identified the victim tolled the

running of the statute. He expanded the scope of the exception

to include "instances when the identification of a victim

through DNA analysis can be used to determine the identity of a

wrongdoer." Thus he opined that the statute of limitations did

not begin to run until 2012, when the remains were identified

and the indictment returned. The judge further observed that

"both parties acknowledge[d] that the 'continuing course of

conduct' exception [was] inapplicable to the alleged offenses."

Likisha's points on appeal are:

I. THE TRIAL COURT ERRED BY DENYING
DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT BECAUSE THE DNA EXCEPTION TO
THE STATUTE OF LIMITATIONS PURSUANT TO
N.J.S.A. 2C:1-6[(c)] IS NOT APPLICABLE
TO HER CASE.

a. The plain and unambiguous meaning
of N.J.S.A. 2C:1-6[(c)] is that
DNA from a suspect must match DNA
evidence found at the scene.

b. Assuming that the DNA exception to
N.J.S.A. 2C:1-6[(c)] is ambiguous
or subject to multiple
interpretations, the legislative
history reveals intent to require
a match of DNA samples from a
suspect.

c. Assuming the statute of
limitations does not require at
least one DNA sample to have come
from the defendant, the results of

9 A-3600-13T2
 the comparison of physical
evidence to DNA evidence was not
necessary to establish the
identity of Likisha Jones.

II. ASSUMING THE DEFENDANT'S PROSECUTION
WAS NOT BARRED BY THE STATUTE OF
LIMITATIONS, THE STATE FAILED TO
PRESENT A PRIMA FACIE CASE AGAINST
LIKISHA JONES TO THE GRAND JURY.

James's point on appeal is:

POINT I
THIS PROSECUTION WAS BARRED BY THE STATUTE
OF LIMITATIONS, AND THE DNA TOLLING
PROVISION IN N.J.S.A. 2C:1-6[(c)] DOES NOT
APPLY.

III.

Before any discussion of the issues, we must address the

State's "concession," made in its brief to the trial judge,

regarding whether any of the offenses were a continuing course

of conduct that by definition would fall outside the limitations

statute. For purposes of appellate review, that concession is

not binding. See State v. Josey, 290 N.J. Super. 17, 32 (App.

Div.) ("our judgments are precedents, and the proper

administration of criminal law cannot be left merely to the

stipulation of parties[.]") (quoting Young v. United States, 315

U.S. 257, 259, 62 S. Ct. 510, 511, 86 L. Ed. 832, 835 (1942)),

certif. denied, 146 N.J. 497 (1996); State v. Elysee, 159 N.J.

Super. 380, 384 (App. Div. 1978) ("Neither the State nor the

10 A-3600-13T2
court is bound by a stipulation of a matter of law which is

contrary to controlling law on the subject.").

IV.

Now turning to defendants' central argument, it is well-

established that an indictment should be dismissed "only on the

clearest and plainest ground," and "only when the indictment is

manifestly deficient or palpably defective." State v. Hogan,

144 N.J. 216, 228-29 (1996) (quoting State v. Perry 124 N.J.

128, 168 (1991)). Although we defer to the trial court's

"exercise of . . . discretionary power" in deciding whether to

dismiss an indictment, State v. Warmbrun, 277 N.J. Super, 51, 60

(App. Div. 1994), certif. denied, 140 N.J. 277 (1995), such

deference is not required when we are asked to review a "trial

court's interpretation of the law and the legal consequences

that flow from established facts[,]" Manalapan Realty, L.P. v.

Twp. Comm., 140 N.J. 366, 378 (1995). An indictment returned

after the expiration of the five-year statute of limitations

would clearly be "manifestly deficient or palpably defective."

The statute of limitations in a criminal case is "an

absolute bar to the prosecution of the offense." State v.

Cagno, 211 N.J. 488, 506 (2012) (quoting State v. Short, 131

N.J. 47, 55 (1993)), cert. denied, ___ U.S. ___, 133 S. Ct. 877,

184 L. Ed. 2d 687 (2013). It is designed to protect a defendant

11 A-3600-13T2
"from being put to his defense after memories have faded,

witnesses have died or disappeared, and evidence has been lost."

Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314, 65 S. Ct.

1137, 1142, 89 L. Ed. 1628, 1635 (1945); see also State v.

Diorio, 216 N.J. 598, 612 (2014) (statutes of limitations

"protect individuals from charges when the basic facts have

become obscured by time.").

On appeal, as they did in the Law Division, Likisha and

James contend the five-year limitation mandates dismissal of the

indictment because the DNA exception applies only to those cases

in which DNA matches the "actor." In contrast, in this case,

DNA from family members matched the victim. Nothing about those

results inherently suggested the identity of the perpetrators

whose conduct led to the child's death, or the destruction of

her remains.

Certainly the DNA comparison identified Jon-Niece,

corroborated Iyonna's story, and in those important respects

advanced the prosecution. But the language in the statute

creating an exception for DNA evidence does not encompass its

use in order to identify persons other than the actor, even if

the match may ultimately lead investigators to the perpetrator

of the crime. The dispositive question is whether the DNA

evidence itself identifies the perpetrator.

12 A-3600-13T2
 "[W]hen the prosecution is supported by physical evidence

that identifies the actor by means of DNA testing . . . time

does not start to run until the State is in possession of both

the physical evidence and the DNA . . . necessary to establish

the identification of the actor by means of comparison to the

physical evidence." N.J.S.A. 2C:1-6(c). Any grammatical,

logical construction of this language leads inescapably to the

conclusion that the DNA in question must be that of the person

or persons who committed the offense. See State v. Rangel, 213

N.J. 500, 509 (2013) (quoting DiProspero v. Penn, 183 N.J. 477,

492 (2005)) (statutory interpretation requires "looking at the

statute's plain language, giving words 'their ordinary meaning

and significance.'"). The statute employs the term "actor" to

mean the perpetrator of the crime. State v. Twiggs, ___ N.J.

Super. ___, ___ (App. Div. 2016) (slip op. at 9).

In Twiggs, Gary Twiggs and Dillon Tracy were charged with

an armed robbery committed on June 16, 2009. Id. at 2-3.

Despite DNA material having been timely sent to the State Police

laboratory for analysis, no match was found until July 2, 2014,

and it identified Tracy, but not Twiggs. Tracy later implicated

Twiggs in the crime. Id. at 3-4. On December 2, 2014, both men

were indicted, months after the statute of limitations had run.

13 A-3600-13T2
 In Twiggs, we observed that were the prosecution to go

forward based solely on the confession of another, it "would []

override the entire limitations period for any party accused of

a crime when any single defendant [directly identified through

DNA] names another party in a confession." Id. at 10. Unlike

when a perpetrator is identified by DNA evidence, a prosecution

based solely on the word of another who is identified by DNA

raises the precise jeopardy the statute is intended to avoid:

the difficulties in mounting a defense "when the basic facts

have become obscured by time." See Diorio, supra, 216 N.J. at

612.

Similarly, the use of DNA taken from innocent family

members to identify the victim does not distinguish the case

from one in which, years after a crime, a person who had

previously remained silent decides to come forward and make an

accusation. In this case, only non-DNA, purely circumstantial

evidence establishes the identity of the perpetrators.

Therefore, there is no meaningful distinction between this case

and any other in which disclosures are made after the statute

has expired that point the finger at an alleged perpetrator. To

suggest a distinction exists would eliminate in one stroke the

protection found in the statute of limitations. The use of a

14 A-3600-13T2
DNA match to someone other than the perpetrator does not come

within the exception.

V.

Next we consider whether the indictment survives under a

"continuing offense" analysis, assessing each count in turn.

Our Supreme Court has recently reiterated the distinction

between crimes that can be classified "as either a discrete act

or a continuing offense." Diorio, supra, 216 N.J. at 614. "'A

discrete act' is one that occurs at a single point in time

. . . . A continuing offense involves conduct spanning an

extended period of time and generates harm that continues

uninterrupted until the course of conduct ceases." Ibid. The

New Jersey Code of Criminal Justice includes a presumption

against continuous offenses; however, that presumption is

overcome if the statute defining the offense includes conduct

which persists over time. Id. at 615-16. If the scheme that

constitutes the offense is one which "play[s] out over the

course of many days, weeks, months, or even years[,]" then it is

a course of conduct. See id. at 618. The statute of

limitations is tolled until the time the last act occurs in the

series of events constituting the scheme. Id. at 613. The

statute of limitations applies, obviously, if the continuing

offense exception does not.

15 A-3600-13T2
 Likisha and James were charged with fourth-degree tampering

with physical evidence. See N.J.S.A. 2C:28-6. The indictment

alleges the offense occurred when defendants removed "the

deceased body of Jon-Niece Jones with purpose to impair its

verity or availability in . . . [an] investigation[.]" The

indictment tracks the statute which reads:

A person commits a crime of the fourth
degree if, believing that an official
proceeding or an investigation is pending or
about to be instituted, he:

(1) Alters, destroys, conceals or removed
any article, object . . . or other thing of
physical substance with purpose to impair
its verity or availability in such
proceeding or investigation. . . .

[N.J.S.A. 2C:28-6(1).]

The offense of tampering falls within the category of a

discrete offense. Defendants, "at a single point in time[,]"

assisted Elisha in destroying and concealing Jon-Niece's body.

See Diorio, supra, 216 N.J. at 614.

The statutory language defining the offense indicates that

the crime is the conduct necessary to destroy or conceal a

physical item so as to "impair" a prosecution. In this case,

after driving Elisha and her daughter's body to New Jersey,

nothing further was required. The elements of N.J.S.A.

2C:28-6(1) were completed in 2002. Because the crime occurred

16 A-3600-13T2
more than five years prior, the charge should have been

dismissed pursuant to the statute of limitations.

Defendants were also charged with hindering in that they

attempted to suppress the investigation, including by tampering

with a witness, Iyonna, "which might aid in the discovery or

apprehension of Elisha Jones or in the lodging of a charge

against her." N.J.S.A. 2C:29-3(a) provides that "[a] person

commits an offense if, with purpose to hinder the . . .

prosecution of another for an offense[,]" he or she tampers with

a witness. Elisha died in December 2002. Since no prosecution

against Elisha could proceed after her death, that element of

the statute could not be met and this charge should have also

been dismissed.

In the indictment, the State alleged that defendants

obstructed the administration of law by their intimidation of

Iyonna. The obstruction statute states:

a. A person commits an offense if he
purposely obstructs, impairs or perverts the
administration of law or other governmental
function or prevents or attempts to prevent
a public servant from lawfully performing an
official function by means of flight,
intimidation, force, violence, or physical
interference or obstacle, or by means of any
independently unlawful act.

[N.J.S.A. 2C:29-1(a).]

17 A-3600-13T2
 The first act of obstruction occurred in 2002 shortly after

Jon-Niece's death, when the adults told Iyonna to lie if she

were asked about her sister's whereabouts. Likisha arguably

committed a second act of obstruction in 2006, when Iyonna was

fourteen, when she again threatened her in order to keep her

quiet. James did nothing further after 2002.

Although Iyonna continued to be "intimidated," and in that

sense the harm continued, neither of these defendants took

action after 2006. Therefore the obstruction charges must also

be dismissed as barred by the five-year limitation term. The

focus under the obstruction statute is the conduct engaged in by

the actor, not merely the effect.

VI.

Finally, we turn to the charge of conspiracy. A person is

guilty of conspiracy if, with the purpose of "promoting or

facilitating its commission," he or she agrees with others to

engage in a crime, or agrees to aid in the planning, attempt, or

solicitation to commit a crime. N.J.S.A. 2C:5-2(a).

Conspiracy is "a continuing course of conduct which

terminates when the crime or crimes which are its object are

committed or the agreement that they be committed is abandoned

by the defendant and by those with whom he conspired[.]"

N.J.S.A. 2C:5-2(f)(1). "If the conspiracy is one that

18 A-3600-13T2
contemplates a continuity of purpose and a continued performance

of acts, it can be inferred to exist until there has been an

affirmative showing that it has terminated." Cannel, New Jersey

Criminal Code Annotated, comment 12 on N.J.S.A. 2C:5-2 (2015-

2016) (citing State v. Cagno, 211 N.J. 488, 511-12 (2012)); see

also State v. Savage, 172 N.J. 374, 403 (2002) ("a conspiracy

may continue beyond the actual commission of the object of the

conspiracy if it is shown that a conspirator enlisted false

alibi witnesses, concealed weapons, or fled in order to avoid

apprehension.").

In State v. Taccetta, in deciding whether N.J.R.E.

803(b)(5) authorized the admission of a co-conspirator's

statement, we said that just as "a defendant is liable for the

acts of co-conspirators even though defendant lacks knowledge of

those acts, the statements of co-conspirators must be admissible

against a defendant when they are in furtherance of the

conspiracy." 301 N.J. Super. 227, 253 (App. Div.), certif.

denied, 152 N.J. 187, 152 N.J. 188 (1997). Additionally, "once

the prosecution demonstrated the defendant's involvement in a

conspiracy, the defendant's continued involvement is presumed

until the defendant proves termination or withdrawal." Ibid.

This includes statements relating to past events where necessary

to "prompt one not a member of the conspiracy to respond in a

19 A-3600-13T2
way that furthers the goals of the conspiracy." Ibid. (citing

United States v. Flores, 63 F.3d 1342, 1377 (5th Cir. 1995)).

Therefore, as to the conspiracy, because the statute and

caselaw define it as a continuing offense, the question we must

answer is "when the last act . . . occurred." Diorio, supra,

216 N.J. at 613.

In relevant part, the indictment alleged that defendants

unlawfully agreed to commit the crimes "of . . . [o]bstructing

the [a]dministration of [l]aw[.]" The overt acts specified in

the indictment, however, focused on the tampering and hindering

conduct: the transportation of Jon-Niece's body from New York

to New Jersey, the destruction of her body, and the concealment

of her remains "in a secluded area nearby the New Jersey

Turnpike[.]"

But "the State may prove overt acts other than those

alleged in the indictment." State v. Klausner, 4 N.J. Super.

427, 431 (App. Div.) (citing State v. Ellenstein, 121 N.J.L.

304, 317 (Sup. Ct. 1938)), certif. denied, 3 N.J. 378 (1949);

see also United States v. Schurr, 794 F.2d 903, 907 n.4 (3rd

Cir. 1986) ("There would appear to be no reason that the

government could not satisfy its requisite showing under the

statute of limitations by means of an overt act not listed in

the indictment."); United States v. Norris, 753 F. Supp. 2d 492,

20 A-3600-13T2
519 (E.D. Pa. 2010) (alteration in original) ("It is well

settled that the government can prove overt acts not listed in

the indictment, so long as there is no prejudice to the

defendants thereby.") Pursuant to N.J.S.A. 2C:5-2(d), overt

acts keep a conspiracy alive so long as committed "by a person

with whom [the person charged] conspired."

With the exception of the 1938 Ellenstein decision, the

cases we have cited above regarding the specification of overt

acts in an indictment consider the issue in the context of

conviction after trial rather than a motion for dismissal;

nonetheless, they provide guidance. That a jury may convict on

overt acts omitted from an indictment lends authority to the

notion that the State can withstand a motion to dismiss where

other overt acts may be proven that are not found in the

charging document itself.

The conspiracy count does not specifically identify the

2006 and 2012 threats as overt acts. Yet the grand jury found

the conspiracy extended beyond Gibson's 2012 threats, thus

putting defendants on notice of the timeframe they were expected

to defend and the conduct. They were not prejudiced at that

stage by the State's failure to allege the overt acts in

question. Additionally, a defendant facing an indictment which

he considers "not sufficiently specific to enable [him] to

21 A-3600-13T2
prepare a defense[]" has the right to move for a bill of

particulars pursuant to Rule 3:7-5.

Thus the overt acts which made this a continuing conspiracy

which obscured the crimes they committed by helping Elisha in

2002 when Jon-Niece died include: the family meeting in 2002

and the direction to Iyonna to lie if asked about the child's

whereabouts, Likisha's 2006 threats, James's discussion with

Iyonna in 2010 when he described the events,6 and Gibson's

threats.

James did not initially repudiate or abandon the

conspiracy. At first, he told investigators that Jon-Niece was

with her father, the explanation the parties agreed to ten years

before. This knowing misstatement of fact was also intended to

continue the conspiracy of silence which did not actually end

until, when pressed by the authorities, Likisha and James

finally admitted their involvement. See Cannel, New Jersey

Criminal Code Annotated, comment 12 on N.J.S.A. 2C:5-2 (2015-

2016) ("If the conspiracy is one that contemplates a continuity

of purpose and a continued performance of acts, it can be

6
We include this conversation, no doubt troubling to Iyonna,
because it would have prompted her to continue to lie and keep
quiet about her family's complicity although not a direct
threat. See Taccetta, supra, 301 N.J. Super. at 253.

22 A-3600-13T2
inferred to exist until there has been an affirmative showing

that it has terminated.").

So long as the co-conspirators kept quiet, and successfully

kept Iyonna from making any disclosures, everyone's wrongdoing

was hidden. Theirs was a continuing course of conduct, a true

conspiracy of silence that began in 2002, was reaffirmed over

the years, and did not stop until Likisha and James confessed.

Hence the last act occurred the year of the indictment. The

five-year statute of limitations does not compel dismissal of

this charge. It was not "manifestly deficient or palpably

defective[.]" Hogan, supra, 144 N.J. at 228-29 (quoting Perry,

supra, 124 N.J. at 168).

VII.

Likisha separately contends that the State failed to

establish a prima facie case against her before the grand jury.

This contention lacks merit given Likisha's pivotal role in

orchestrating the conspiracy the officer described during his

testimony before the grand jury.

Even if Likisha did not travel to New Jersey in 2002, she

participated in the family meeting afterwards when Iyonna was

told to lie about Jon-Niece's whereabouts. She threatened

Iyonna in 2006 that she too would be jailed if she made any

disclosures to the authorities. Hence, the grand jury was

23 A-3600-13T2
presented with enough circumstances to demonstrate a prima facie

case of conspiracy to obstruct.

VIII.

We affirm denial of the motion to dismiss the conspiracy

count and vacate the guilty pleas to the hindering charge.

Other than the conspiracy count, the motion to dismiss the

indictment as beyond the statute of limitations should have been

granted. Defendants may withdraw from their guilty pleas should

they wish to do so, and the prosecution move forward solely on

the charges of conspiracy. Should defendants elect to adhere to

the earlier agreement, they should be resentenced on the fourth-

degree conspiracy.

Affirmed in part; reversed in part.

24 A-3600-13T2