STATE OF NEW JERSEY VS. VICTORIA L. MAJEWSKI(15-07-0573, CAPE MAY COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2032-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. June 12, 2017

APPELLATE DIVISION
VICTORIA L. MAJEWSKI,

Defendant-Appellant.
___________________________________________

Submitted April 4, 2017 – Decided June 12, 2017

Before Judges Messano, Espinosa and Suter.

On appeal from the Superior Court of New
Jersey, Law Division, Cape May County,
Indictment No. 15-07-0573.

Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel S. Rockoff, Assistant
Deputy Public Defender, of counsel and on
the brief).

Robert L. Taylor, Cape May County Prosecutor,
attorney for respondent (Gretchen A.
Pickering, Assistant Prosecutor, of counsel
and on the brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

Following the denial of her motion to dismiss Cape May

County Indictment No. 15-07-0573, defendant Victoria L. Majewski

pled guilty to the single count of that indictment, charging her
with fourth-degree aggravated assault, throwing bodily fluids at

certain law enforcement officers, N.J.S.A. 2C:12-13 (the

Statute). In accordance with the negotiated plea agreement

defendant reached with the State, the judge imposed a one-year

term of imprisonment, consecutive to the term of imprisonment

defendant was then serving.

Defendant raises the following points on appeal:

POINT I

THE COURT ERRED BY DENYING MAJEWSKI'S MOTION
TO DISMISS THE INDICTMENT.

(A) The Indictment Was Palpably Defective
Because The Prosecutor Misrepresented The
Criminal Statute To The Grand Jury.1

(B) The Indictment Was Palpably Defective
Because The Prosecutor Did Not Tell The Jury
About Exculpatory Evidence That Majewski
Lacked The Required Purposeful Intent.

POINT II

THE COURT ERRED BY ACCEPTING MAJEWSKI'S
GUILTY PLEA, WHICH WAS INSUFFICIENT AS TO
BOTH THE MENTAL STATE AND THE BAD ACT. (Not
Raised Below).

(A) The Admissions Made By Majewski During
Her Plea Did Not Satisfy The Mens Rea
Requirements Of N.J.S.A. 2C:12-13, A
Specific Intent Offense That Requires Proof
Of Purpose For Every Element Alleged.

(B) The Admissions Made By Majewski During
Her Plea Did Not Satisfy The Actus Reus

1
We have omitted the sub-sub-points of defendant's brief.

2 A-2032-15T2
 Alleged In The Indictment, Because The
Prosecutor Failed To Instruct The Grand Jury
On The Critical Statutory Clause.

We conclude the judge should have granted defendant's motion to

dismiss the indictment. We therefore vacate defendant's

judgment of conviction and dismiss the indictment without

prejudice to the State's ability to present the matter to the

grand jury anew.

I.

The Statute provides:

A person who throws a bodily fluid at a
. . . law enforcement officer while in the
performance of his duties or otherwise
purposely subjects such employee to contact
with a bodily fluid commits an aggravated
assault. If the victim suffers bodily
injury, this shall be a crime of the third
degree. Otherwise, this shall be a crime of
the fourth degree. A term of imprisonment
imposed for this offense shall run
consecutively to any term of imprisonment
currently being served and to any other term
imposed for another offense committed at the
time of the assault. Nothing herein shall
be deemed to preclude, if the evidence so
warrants, an indictment and conviction for a
violation or attempted violation of chapter
11 of Title 2C . . . or subsection b. of
[N.J.S.A.] 2C:12-1 or any other provision of
the criminal laws.

[(Emphasis added).]

"'Bodily fluid' means saliva, blood, urine, feces, seminal fluid

or any other bodily fluid." N.J.S.A. 2C:12-12.

3 A-2032-15T2
 In this case, the prosecutor provided the grand jurors with

preliminary instructions "on some new law"2 by reading the

following:

A person who throws a bodily fluid at a
Department of Corrections employee, county
corrections officer, juvenile corrections
officer, State juvenile facility, juvenile
detention staff member, probation officer,
any sheriff, undersheriff or sheriff's
officer or any municipal, county or State
law enforcement officer while in the
performance of their duties is guilty of a
crime of the fourth degree.

The prosecutor then appropriately defined the term "bodily

fluid."

The evidence before the grand jury was limited to the brief

testimony of an investigator with the Cape May County Sheriff's

office. She testified that on June 14, 2015, defendant was an

inmate in the county jail. "[D]uring a routine move" of another

inmate near defendant's cell, defendant "spit in the face" of

one of the corrections officers. Another officer witnessed

this. The prosecutor then read the proposed indictment,

specifically, that defendant "did throw bodily fluids at [the

corrections officer] . . . [while the] said[] [o]fficer . . .

was acting in the performance of her duties while in uniform or

2
The transcript of the grand jury proceedings starts in mid-
sentence. We assume the prosecutor had provided instructions to
the grand jurors on other criminal offenses before presenting
this case.

4 A-2032-15T2
exhibiting evidence of her authority[,] contrary to" N.J.S.A.

2C:12-13. The actual indictment contains the language we have

quoted without reference to the culpability element of the

offense.

Defendant moved to dismiss the indictment, arguing the

Statute required the State prove she "intended to hit [the

officer] with a bodily fluid." She noted the State's discovery

acknowledged her intention was to spit on another inmate, not

the officer. Citing State ex rel S.B., 333 N.J. Super. 236

(App. Div. 2000), defendant argued the Statute did not permit a

theory of "transferred intent" to elevate spitting at someone,

even if it was an offense, into an aggravated assault simply

because the fluid unintentionally hit a corrections officer.

Defendant also argued the judge should dismiss the

indictment because the State failed to present exculpatory

evidence to the grand jury. Specifically, the investigating

sheriff's officer, who interviewed defendant's intended inmate

target and other inmates who witnessed the incident, concluded

in the administrative disciplinary charge he lodged against

defendant that she spat at the other inmate. The charging

report made no mention of the fluid striking the officer. The

5 A-2032-15T2
disciplinary investigation resulted in defendant's loss of

privileges for five days.3

In opposing the motion, the State acknowledged the

Statute's ambiguity regarding the requisite mental state.

Nevertheless, it argued the Statute explicitly incorporated the

doctrine of transferred intent, because it criminalized not only

the throwing of a bodily fluid at an officer, but also conduct

that "otherwise purposely subjected [the officer] to contact

with a bodily fluid." The State also argued that S.B. supported

application of the doctrine of transferred intent. Lastly, the

State contended the statements of other inmates were not clearly

exculpatory evidence that negated defendant's guilt, see State

v. Hogan, 144 N.J. 216, 237 (1996), and it had no obligation to

charge the grand jurors "regarding a potential defense."

After considering oral argument, the judge concluded the

investigative report and statements were not "clearly

exculpatory," and, therefore, the prosecutor did not violate the

Court's holding in Hogan by not producing them before the grand

jury. However, the judge specifically "left for another day"

any decision regarding the culpable mental state required by the

3
It is unclear from the record whether defendant was criminally
charged in a complaint prior to the prosecutor's presentation to
the grand jury. No complaint is in the record and the grand
jury transcript makes no mention of one.

6 A-2032-15T2
Statute, noting there was "some further analysis that need[ed]

to be considered . . . before the matter is listed for trial."

He denied defendant's motion.

Three days later, defendant entered her guilty plea. Under

oath, she admitted getting into an altercation with another

inmate and spitting at that inmate. Defendant acknowledged her

"spit landed on" the corrections officer, who was standing

nearby holding the other inmate.

II.

Since its enactment in 1997, no published decision has

construed the Statute. "The primary goal of statutory

interpretation 'is to determine as best we can the intent of the

Legislature, and to give effect to that intent.'" State v.

Lenihan, 219 N.J. 251, 262 (2014) (quoting State v. Hudson, 209

N.J. 513, 529 (2012)). "The intent of the Legislature 'begins

with the language of the statute, and the words chosen by the

Legislature should be accorded their ordinary and accustomed

meaning.'" Ibid. (quoting Hudson, supra, 209 N.J. at 529).

"Absent a clear indication from the Legislature that it intended

statutory language to have a special limiting definition, we

must presume that the language used carries its ordinary and

well-understood meaning." Id. at 262-63.

7 A-2032-15T2
 "[I]f a statute's plain language is ambiguous or subject to

multiple interpretations, the Court 'may consider extrinsic

evidence including legislative history and committee reports.'"

State v. Frye, 217 N.J. 566, 575 (2014) (quoting State v.

Marquez, 202 N.J. 485, 500 (2010)). Further, "[u]nder the

'doctrine of lenity,' if an analysis of statutory language,

legislative history and other secondary sources fails to resolve

a statutory ambiguity with respect to a criminal statute, that

ambiguity is resolved in favor of the defendant." State v.

McDonald, 211 N.J. 4, 18 (2012) (citing State v. Gelman, 195

N.J. 475, 482 (2008) (citing United States v. Bass, 404 U.S.

336, 348, 92 S. Ct. 515, 523, 30 L. Ed. 2d 488, 497 (1971))).

One ambiguity in the plain language of the Statute is

whether the Legislature intended the same culpable mental state

— "purposely" — that expressly applies to "subject[ing] [an

officer] to contact with a bodily fluid," also applies to

"throw[ing] a bodily fluid at" such an officer. N.J.S.A. 2C:12-

13. The model jury charge recognizes this ambiguity, providing

in a footnote,

There is a question of statutory
construction as to the applicable
culpability element under N.J.S.A. 2C:12-13
for one who "throws" a bodily fluid. The
absence of an explicitly stated culpability
requirement in the first portion of the
statute could support an argument that
knowledge applies under N.J.S.A. 2C:2-2c(3),

8 A-2032-15T2
 but a majority of the Model Criminal Jury
Charge Committee has concluded that the
subsequent statutory reference to purpose
requires that purpose be applied to all
material elements of the offense under
N.J.S.A. 2C:2-2c(1).

[Model Jury Charge (Criminal), "Aggravated
Assault (Throwing Bodily Fluid at a
Corrections Employee) (N.J.S.A. 2C:12-13),"
n.1, (June 10, 2002) (the Model Charge).]

The Model Charge adopted the reasoning explained in its footnote

and provides in relevant part:

In order for you to find the defendant
guilty of this offense, the State must prove
each of the following elements beyond a
reasonable doubt:

. . . . []that the defendant purposely threw
a bodily fluid at (insert name of victim) or
otherwise purposely subjected (insert name
of victim) to contact with a bodily fluid;

. . . .

A person acts purposely with respect to
the nature of (his/her) conduct or a result
thereof if it is a person's conscious object
to engage in conduct of that nature or to
cause such a result. A person acts
purposely with respect to attendant
circumstances if a person is aware of the
existence of such circumstances or a person
believes or hopes that they exist. One can
be deemed to be acting purposely if one acts
with design, with a purpose, with a
particular object, if one really means to do
what (he/she) does.

[Id. at 1-2 (emphasis added) (citing
N.J.S.A. 2C:2-2(b)(1)).]

9 A-2032-15T2
 The footnote in the Model Charge relies upon the Criminal

Code's general default provision governing culpability, N.J.S.A.

2C:2-2(c). "When the law defining an offense prescribes the

kind of culpability that is sufficient for the commission of an

offense, without distinguishing among the material elements

thereof, such provision shall apply to all the material elements

of the offense, unless a contrary purpose plainly appears."

N.J.S.A. 2C:2-2(c)(1). On the other hand, when "no culpable

mental state is expressly designated in a statute defining an

offense," our Criminal Code provides the statute "should be

construed as defining a crime" that requires knowing

culpability. N.J.S.A. 2C:2-2(c)(3).

The scant legislative history of the Statute demonstrates

the Legislature intended to broadly criminalize certain conduct.

This bill is intended to protect the health
and well-being of corrections and parole
officers by designating the act of throwing
bodily fluids at such officers an aggravated
assault. The need to impose tough sanctions
for this vile and disgusting act takes on
greater urgency in an era when such fluids
can (sic) may serve as the medium for the
transmission of life-threatening diseases.

[Statement to A. 1598 (February 29, 1996).]

Indeed, the Statute defines two different types of aggravated

assault: 1) throwing bodily fluid at an officer, even if there

is no contact; and 2) causing, in some other way, contact of

10 A-2032-15T2
bodily fluid with the officer. However, nothing indicates the

Legislature intended two different levels of culpability —

knowing conduct on the one hand and purposeful conduct on the

other — and chose only to include purposeful conduct in the

Statute. "We decline to read into the statute language that the

Legislature 'could have included . . . but did not.'" State v.

Eldakroury, 439 N.J. Super. 304, 310 (App. Div.) (quoting Jersey

Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 596

(2013)), certif. denied, 222 N.J. 16 (2015).

We conclude the Statute requires the State prove a

defendant acted purposely, whether throwing bodily fluid at an

officer or otherwise subjecting that officer to contact with

bodily fluid. This interpretation is consistent with the

general rules of construction in our Criminal Code, with which

we presume the Legislature was entirely familiar. See State v.

Nance, ___ N.J. ___, ___ (2017) (slip op. at 18) ("[W]hen

ascertaining legislative intent, we can infer that the

Legislature was 'familiar with its own enactments, with judicial

declarations relating to them, and . . . passed or preserved

cognate laws with the intention that they be construed to serve

a useful and consistent purpose.'" (quoting State v. Greeley,

178 N.J. 38, 46 (2003))).

11 A-2032-15T2
 III.

As it did in the Law Division, the State argues that even

if the Statute requires purposeful conduct, the doctrine of

transferred intent applies. In other words, it did not matter

whether defendant intended to spit at the officer since she

clearly intended to spit at her fellow inmate who was nearby,

and defendant's bodily fluid came in contact with the officer as

a result. We disagree.

The second part of the Statute proscribes a particular

result, that is, the actor purposely subjected the officer to

contact with a bodily fluid. N.J.S.A. 2C:2-3(b) provides:

When the offense requires that the defendant
purposely or knowingly cause a particular
result, the actual result must be within the
design or contemplation, as the case may be,
of the actor, or, if not, the actual result
must involve the same kind of injury or harm
as that designed or contemplated and not be
too remote, accidental in its occurrence, or
dependent on another's volitional act to
have a just bearing on the actor's liability
or on the gravity of his offense.

"Where an offense requires purpose, the result must be the kind

of result designed by the actor[.]" Cannel, New Jersey Criminal

Code Annotated, comment 4 on N.J.S.A. 2C:2-3 (2016-17).

The Criminal Code also provides that an actor is "not . . .

relieved of responsibility for causing a result if the only

difference between what actually occurred and what was designed

12 A-2032-15T2
. . . is that a different person . . . was injured or affected

or that a less serious or less extensive injury or harm

occurred." N.J.S.A. 2C:2-3(d). "Th[is] principle of

'transferred intent' makes an actor criminally responsible for

the result of his conduct, even though the person injured is not

his intended victim." S.B., supra, 333 N.J. Super. at 243.

In S.B., we held the juvenile was not absolved of

committing an assault upon his teacher, simply because he

intended to kick another student and struck his teacher instead.

Ibid. However, because the juvenile did not possess the

specific intent to kick his teacher, he could not be adjudicated

delinquent of aggravated assault under N.J.S.A. 2C:12-

1(b)(5)(d), which elevates a simple assault committed upon

certain educational officials to aggravated assault. S.B.,

supra, 333 N.J. Super. at 242-43. We rejected application of

transferred intent to elevate the offense because "the only

intent that [was] transferred [was] the intent to commit a

simple assault." Id. at 244-45; see also Cannel, supra, comment

6 on N.J.S.A. 2C:2-3 ("[I]f the degree of crime is dependent on

the identity of the victim, . . . the identity of the intended,

not actual, victim is decisive.").

We need not decide hypothetically whether purposely

spitting on someone, "throwing" bodily fluids "at" someone, or

13 A-2032-15T2
otherwise purposely causing a person to come into contact with a

bodily fluid are offenses under our Criminal Code. For our

purposes, it suffices to say that whatever that offense might

be, the doctrine of transferred intent does not apply to elevate

that conduct to an aggravated assault under N.J.S.A. 2C:12-13.

A defendant does not violate the Statute unless his conduct was

purposeful and the result was within his design.

IV.

Applying these principles, we consider the judge's decision

on defendant's motion to dismiss the indictment.

"The trial court's decision denying defendant's motion to

dismiss her indictment is reviewed for abuse of discretion."

State v. Saavedra, 222 N.J. 39, 55 (2015) (citing Hogan, supra,

144 N.J. at 229). "[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) (citing State v. Engel, 249 N.J. Super. 336, 359

(App. Div.), certif. denied, 130 N.J. 393 (1991)).

"A prosecutor must charge the grand jury 'as to the

elements of specific offenses.'" Eldakroury, supra, 439 N.J.

Super. at 309 (quoting State v. Triestman, 416 N.J. Super. 195,

205 (App. Div. 2010)). "[A]n indictment will fail where a

14 A-2032-15T2
prosecutor's instructions to the grand jury were misleading or

an incorrect statement of law." Ibid. (quoting Triestman,

supra, 416 N.J. Super. at 205). "However . . . 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).

In Treistman, supra, 416 N.J. Super. at 205, we also

restated the prosecutor's obligation, in some circumstances, to

charge the grand jurors as to specific exculpatory defenses. As

Judge Baime observed nearly twenty-five years ago, "a

prosecutor's obligation to instruct the grand jury on possible

defenses is a corollary to his responsibility to present

exculpatory evidence." Hogan, supra, 336 N.J. Super. at 341.

"[I]t is only when the facts known to the prosecutor clearly

indicate or clearly establish the appropriateness of an

instruction that the duty of the prosecution arises." Id. at

343-44 (citing State v. Choice, 98 N.J. 295, 299 (1985)). "[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

15 A-2032-15T2
have reached a different result but for the prosecutor's error."

Id. at 344.

Here, as in Eldakroury, we deal with the adequacy of the

prosecutor's instructions to the grand jury. The defendant in

Eldakroury was "accused of operating a sexually oriented

business . . . within 1000 feet of a residential zone," in

violation of N.J.S.A. 2C:34-7(a). Eldakroury, supra, 439 N.J.

Super. at 306. The prosecutor instructed the grand jury that

the State needed to prove the defendant knowingly operated the

business, but did not have to prove he ran the business knowing

it was located within the residential zone. Id. at 307. We

affirmed the trial court's dismissal of the indictment,

concluding "the State's instruction to the jury was 'blatantly

wrong' and, in effect, relieved the State from having to

establish defendant's mens rea as to a material element of the

offense." Id. at 310.

In this case, the prosecutor similarly failed to define a

material element of the crime for the grand jurors, i.e., that

defendant purposely spat at the officer or otherwise purposely

subjected the officer to contact with a bodily fluid.

Certainly, the evidence produced before the grand jurors failed

to demonstrate defendant acted "with purpose" as to the officer.

Given the little evidence actually produced before the grand

16 A-2032-15T2
jurors, we must conclude omitting instructions on the

culpability element of the crime "was clearly capable of

producing an unjust result." Hogan, supra, 336 N.J. Super. at

344.

We note further that even if the State provides appropriate

instructions to the grand jury, it must produce "some evidence

establishing each element of the crime to make out a prima facie

case." Saavedra, supra, 222 N.J. at 57 (quoting State v.

Morrison, 188 N.J. 2, 12 (2006)). Without full knowledge of the

State's case, we will not speculate whether it can establish the

essential elements of N.J.S.A. 2C:12-13 before the grand jury.

V.

We conclude the judge mistakenly exercised his discretion

by not dismissing the indictment because the State failed to

properly charge the grand jury on the elements of N.J.S.A.

2C:12-13. We therefore reverse defendant's judgment of

conviction, vacate the sentence imposed and dismiss the

indictment without prejudice to the State's ability to represent

the matter to the grand jury.4

In order to provide guidance should the State seek to re-

indict defendant, we consider whether the inmate statements and

4
As a result, we need not consider the arguments raised in
defendant's second point on appeal.

17 A-2032-15T2
the disciplinary charge lodged against defendant must be

presented to the grand jurors. The prosecutor's duty to present

certain evidence to the grand jury "arises only if the evidence

satisfies two requirements: it must directly negate guilt and

must also be clearly exculpatory." Hogan, supra, 144 N.J. at

237.

The evidence in the appellate record "directly negates"

defendant's guilt, because it "squarely refutes an element of

the crime in question," i.e., purposeful conduct. Ibid.

(emphasis omitted). However, determining whether it is

"'clearly exculpatory' requires an evaluation of the quality and

reliability of the evidence. The exculpatory value of the

evidence should be analyzed in the context of the nature and

source of the evidence, and the strength of the State's case."

Ibid. Contradictory eyewitness testimony, or self-serving

statements of denial are not "'clearly exculpatory,' and need

not be revealed to the grand jury." Id. at 238.

The three statements of defendant's fellow inmates,

although consistently asserting defendant intended to spit at

one of them and not the officer, are internally inconsistent as

to other details of the incident. We recognize that the

discovery contained in the appellate record may not be the full

extent of the State's evidence against defendant, and we have no

18 A-2032-15T2
knowledge of whether the State possesses additional evidence.

It follows, we cannot assess from this limited record any

potential bias on the part of these witnesses or the overall

"strength of the State's case." Id. at 237.

We therefore act, as the Court advised, with "substantial

caution" in this regard, id. at 238, and leave final resolution

of the issue to the Law Division. Should the State represent

the matter and secure a new indictment, and should defendant

again move to dismiss on this ground, the court will be in the

best position to apply Hogan's standards to the record as it

then exists.

Reversed. We vacate defendant's conviction and dismiss the

indictment without prejudice to the State's ability to represent

the matter to a properly instructed grand jury.

19 A-2032-15T2