STATE OF NEW JERSEY VS. DONTE CRUMIDY (19-01-0011, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5417-18

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DONTE CRUMIDY,

Defendant-Respondent.
________________________

Argued April 22, 2020 – Decided April 16, 2021

Before Judges Fuentes, Mayer and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 19-01-
0011.

Patrick F. Galdieri, II, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for appellant (Christopher L.C. Kuberiet, Acting
Middlesex County Prosecutor, attorney; Patrick F.
Galdieri, II, of counsel and on the brief).

Margaret McLane, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; Margaret McLane, of
counsel and on the brief).
 The decision of the court was delivered by

FUENTES, P.J.A.D.

On April 3, 2014, a Middlesex County grand jury returned Indictment 14-

04-0383 charging defendant Donte Crumidy and codefendants Rickey Barley

and Juan Dunlap with second degree conspiracy to commit armed robbery and/or

burglary, N.J.S.A. 2C:5-2 (count one); two counts of first degree armed robbery,

N.J.S.A. 2C:15-1a(2) (counts two and three); two counts of second degree

burglary, N.J.S.A. 2C:18-2 (counts four and five); two counts of second degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts six and seven); and

two counts of second degree possession of a weapon for unlawful purposes,

N.J.S.A. 2C:39-4a (counts nine and ten). 1

On May 24, 2016, the trial judge severed defendant's case from that of his

two codefendants and tried him separately based on the strong likelihood that

defendant's obstreperous behavior would undermine codefendants' right to a fair

trial. Defendant's trial began on November 30, 2017 and spanned over a period

of seven days. On December 14, 2017, the jury returned a partial verdict in

1
The grand jury also returned Indictment 14-04-0385, which separately charged
defendant with one count of second degree possession of a firearm by person
previously convicted of one or more of the offenses listed in N.J.S.A. 2C:39 -
7(b). However, because the State ultimately dismissed this charge, the
disposition of this indictment is not part of this appeal.
A-5417-18
2
which it found defendant not guilty on counts six and seven, second degree

unlawful possession of two different handguns, and counts nine and ten, second

degree possession of these two handguns for an unlawful purpose. The

foreperson also reported to the judge that the jury "could not reach consensus"

as to counts one, two, three, four, and five. In response to the judge's inquiry,

both the prosecutor and defense counsel declined to poll the jurors pursuant to

Rule 1:8-10.

After discharging the jury, the judge addressed the attorneys as follows:

THE COURT: All right. So, let me ask you this
question. The . . . verdict on the weapons charge
nullifies the certain persons Indictment; right? I would
think so.2 Because they didn't even find him in either

2
Although not raised here, we are compelled to point out that an acquittal of
unlawful possession of a handgun in one trial does not vitiate the need to conduct
a separate trial before the same jury on the charge of possession of the same
firearm under N.J.S.A. 2C:39-7. As this court made clear in State v. Lopez:

A certain persons trial is not simply the continuation of
the unlawful possession trial. The proceedings are two
separate trials which may, but need not, be conducted
before different juries. [State v. Ragland, 105 189,194-
96 (1986)]. The second trial is a "'"new" trial[;] the
defendant is entitled to the presumption of innocence
and, as a consequence of that, to an instruction that each
and every material fact that makes up the crime,
including obviously the fact of possession, must be
proven by the State beyond a reasonable doubt.'"

A-5417-18
3
sole or joint or constructive possession of a weapon.
[H]ere's what I need to do. I want you to think about it
and I want you to come back in January -- how about
you come back January 22nd, [2018] so we can
conference this case.

I want to know how you guys want to proceed and then
we'll set another date in the future, because we're going
to have to release Mr. Crumidy to his State sentence.
The State's been looking to pick him up, and we're
going to have to bring him back at some point. We'll
have a conference only on the 22nd with the attorneys.

And, what I need [the prosecutor] to do is let me know
if this verdict requires you to dismiss that certain
persons charge, number one. And number two, how do
you want to proceed on . . . the conspiracy, the robbery
and the burglary charge.

PROSECUTOR: Those I would like to retry.

....

THE COURT: Now, also be prepared to discuss with
me whether it's just a second degree robbery and a third
degree burglary, or whether you think you have the
ability to charge armed robbery and armed burglary,
given that [the jury] rendered a verdict saying
essentially that Mr. Crumidy had nothing to do with the
guns.

[417 N.J. Super. 34, 40 (App. Div. 2010) (quoting State
v. Wray, 336 N.J. Super. 205, 212 (App. Div. 2001)
(quoting Ragland, 105 N.J. at 195)).]

A-5417-18
4
 On December 20 and 27, 2018, the State presented evidence to another

Middlesex County grand jury, related only to the charges on which the petit jury

was unable to reach a unanimous verdict. On January 3, 2019, the grand jury

returned Indictment No. 19-01-0011, charging defendant with: second degree

conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2

(count one); second degree conspiracy to commit armed burglary, N.J.S.A.

2C:18-2 and N.J.S.A. 2C:5-2 (count two); six counts of first degree armed

robbery as an accomplice, N.J.S.A. 2C:15-1a(2) and N.J.S.A. 2C:2-6; and two

counts of second degree burglary as an accomplice, N.J.S.A. 2C:18-2a(1) and

b(2) and N.J.S.A. 2C:2-6.

On May 10, 2019, defendant moved to dismiss this indictment. Afte r

considering the written submissions and oral argument from counsel, the judge

granted defendant's motion and dismissed the indictment as a matter of law on

June 10, 2019. The judge held that the jury's acquittal in the first trial of all the

charges related to possession of the firearms "insulated [defendant] from any

kind of possession of those weapons." Although the charges in Indictment 19 -

01-0011 were predicated under the doctrine of accomplice liability as codified

in N.J.S.A. 2C:2-6, the judge held:

Nothing related to [a] weapon would be allowed in the
subsequent trial based on the jury's verdict. Because,

A-5417-18
5
 again, they indicated that Mr. Crumidy has nothing to
do either actually or constructively or jointly with the
weapons alleged.

Accordingly, since every count of your indictment is
premised on a weapons charge or some kind of
possession of a weapon, that would fly in the face of
the jury's verdict. Clearly fly in the face of [the] jury's
verdict. So I'm going to have to dismiss this indictment
in its entirety.

In this appeal, the State argues the judge erred when he granted

defendant's motion to dismiss the indictment as a violation of the Double

Jeopardy Clause of the Fifth Amendment, U.S. Const. amend. V, and Article I,

Paragraph 11 of the New Jersey Constitution, N.J. Const. art. I, ¶ 11, or under

the equitable doctrine of collateral estoppel. After reviewing the record

developed before the trial court and mindful of prevailing legal standards, we

agree with the State's position and reverse.

The partial verdict returned by the jury in the first trial acquitted defendant

of charges related only to unlawful use and possession of handguns. The jury

did not reach a unanimous verdict on the remaining counts in the original

indictment. The charges in Indictment 19-01-0011 relate to offenses predicated

on the doctrine of accomplice liability, first degree robbery, and second degree

burglary, substantive offenses not covered by the first jury's partial verdict. The

A-5417-18
6
State is therefore not barred from prosecuting defendant on these charges by our

federal or State constitutions, nor the doctrine of collateral estoppel.

I.

The evidence the State presented to the grand jury came predominantly

from the testimony of New Brunswick Police Department Officer Jeffrey

Monticello. At approximately 7:30 p.m. on January 3, 2014, Monticello and his

partner Officer Adorno responded to the scene of a home invasion and robbery

that occurred in a basement apartment located on Louis Street. This apartment

was the home of Antonia, 3 her twin children Ellie and Roberto, and her then

three-year-old grandson Julius. They were all present at the time the three

assailants forced their way into the apartment.

Ellie made the 911 call to the police. She described the man with the

pistol as approximately six feet tall. The other two assailants were between five

feet, eight inches to five feet, ten inches tall. One of them had a bookbag and

demanded her cellphone. Ellie told the officers that although one man had a

bookbag, none of them were able to take anything from the apartment.

3
We use first names to protect the privacy of these individuals. We do not
intend any disrespect.
A-5417-18
7
 All three men ran away on foot down Louis Street in the direction of

Somerset Street. Monticello told the members of the grand jury that he noticed

a Hyundai Accent parked on Somerset Street about "half a city block" from the

Louis Street home. The car was occupied by three men subsequently identified

as Dunlap, Barley, and defendant. Dunlap was in the driver's seat. Monticello

testified that he and Officer Adorno approached the vehicle and asked the

occupants to step out of the car, When Dunlap exited the vehicle, a silver

revolver fell from his waistband to the ground. The officers arrested all three

men. It was later determined that the height of all three men matched Ellie's

description.

On these facts, the grand jury returned Indictment No. 19-01-0011 against

defendant.

II.

We start our analysis by citing State v. Bell, a case in which our Supreme

Court recently reaffirmed the principles governing grand jury proceedings, the

role they play in our criminal justice system, and the procedures governing its

function.

Grand juries stand between citizens and the State, and
are tasked with assessing whether there is [an] adequate
basis for bringing a criminal charge. They serve the
dual function of determining if there is probable cause

A-5417-18
8
 to believe that a crime has been committed and of
protecting citizens against unfounded criminal
prosecutions. The grand jury is a judicial, investigative
body, serving a judicial function; it is an arm of the
court, not a law enforcement agency or an alter ego of
the prosecutor's office.

Procedurally, the grand jury does not conduct a mini-
trial, but an ex parte inquest . . . .
....

To perform that function, grand juries are invested with
broad and unfettered investigative powers that are
largely unrestrained by the technical procedural and
evidentiary rules governing the conduct of criminal
trials. Further, a grand jury must be free to pursue its
investigations unhindered by external influence or
supervision so long as it does not trench upon the
legitimate rights of any witness called before it.

Despite the grand jury's investigative independence,
grand jury proceedings are largely controlled by
prosecutors. And, although the grand jury determines
whether there is probable cause, the decision to
prosecute and what charge to file or bring before a
grand jury, generally rests entirely in the prosecutor's
discretion.

[241 N.J. 552, 559-60 (2020) (internal citations
omitted).]

As an appellate court, we generally review "a trial court's decision to

dismiss an indictment under the deferential abuse of discretion standard." State

v. Twiggs, 233 N.J. 513, 532 (2018). However, when the trial court's decision

is predicated on a question of law, as it is here, our review is de novo. State v.

A-5417-18
9
S.B., 230 N.J. 62, 67 (2017). Defense counsel argues that the State cannot

prosecute defendant on the charges reflected in Indictment 19-01-0011 because

the jury acquitted defendant of the four charges that required "possession" of a

handgun.

Criminal possession signifies intentional control and
dominion, the ability to affect physically and care for
the item during a span of time, accompanied by
knowledge of its character. Such possession can be
constructive rather than actual. Physical or manual
control of the proscribed item is not required as long as
there is an intention to exercise control over it
manifested in circumstances where it is reasonable to
infer that the capacity to do so exists.

[State v. Stewart, 96 N.J. 596, 603 (1984), (internal
citations omitted).]

Defendant argues all of the offenses in Indictment 19-01-0011 implicitly

requires the State to prove defendant had actual or constructive possession of a

firearm during the commission of a first degree robbery and a second degree

burglary.

The protections provided by the Fifth Amendment of the federal

constitution's Double Jeopardy Clause run "coextensive" with the double

jeopardy protections afforded by the New Jersey Constitution. State v. Miles,

229 N.J. 83, 92 (2017). Within this spectrum of protections are the prohibitions

of prosecuting "a defendant for the same offense after an acquittal and . . .

A-5417-18
10
prosecuting a defendant for the same offense after a conviction." State v.

Schubert, 212 N.J. 295, 304 (2012). The Fifth Amendment also prohibits

"imposing on a defendant 'multiple punishments for the same offense.'" Id. at

304-305 (quoting Jones v. Thomas, 491 U.S. 376, 381 (1989)).

The equitable doctrine of collateral estoppel "is embodied within the

Double Jeopardy Clause . . . when an issue of ultimate fact has once been

determined by a valid final judgment, that issue cannot again be litigated

between the same parties in any future lawsuit." State v. Brown, 394 N.J. Super.

492, 501 (App. Div. 2007) (citing Ashe v. Swenson, 397 U.S. 436, 443 (1970)).

Collateral estoppel "proceeds on the theory that once a jury makes a finding of

ultimate fact, in a fully and fairly tried case, that finding should not be subject

to relitigation." State v. Kelly, 201 N.J. 471, 492 (2010). This equitable doctrine

is "used in criminal prosecutions to complement the constitutional protection

against double jeopardy by protecting defendants against multiple prosecutions

for different 'offenses' based on the same set of facts." State v. Gonzalez, 75

N.J. 181, 192 (1977).

A jury's inability to reach a unanimous verdict on any of the charges

prosecuted in a criminal trial "results in a 'manifest necessity' for the trial court

to declare a mistrial, and that re[-]prosecution for the same offense does not

A-5417-18
11
violate the Fifth Amendment's double jeopardy clause." State v. Cruz, 171 N.J.

419, 425 (2002), (citing United States v. Perez, 22 U.S. 579, 580 (1824)). Stated

more directly, "[a] mistrial is not a judgment or order in favor of any of the

parties." State v. Hale, 127, N.J. Super. 407, 412 (App. Div. 1974).

Here, the trial judge held "[n]othing related to [a] weapon would be

allowed in the subsequent trial based on the jury's verdict." The judge's ruling

is based on a fundamental misunderstanding of the nature of the conspiracy

charges in Indictment No. 19-01-0011. The State's theory of culpability on these

charges is not dependent on whether defendant possessed a firearm. A jury may

find defendant guilty of conspiracy to commit a crime with another person if the

evidence shows defendant purposefully promoted or facilitated its commission,

and either:

(1) Agrees with such other person or persons that they
or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or

(2) Agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.

[N.J.S.A. 2C:5-2(a).]

As our Supreme Court explained in State v. Samuels: "the agreement to

commit a specific crime is at the heart of a conspiracy charge. Such an

A-5417-18
12
agreement is central to the purposes underlying the criminalization of the

inchoate offense of conspiracy." 189 N.J. 236, 245 (2007). Thus, a jury may

still find him guilty "under a theory of conspiratorial liability based solely on an

agreement to commit a crime . . . ." State v. Roldan, 314 N.J. Super. 173, 189

(App. Div. 1998). Because defendant is charged with first degree robbery and

second degree armed burglary, the State is not required to present evidence of

any overt act. See N.J.S.A. 2C:5-2(d); N.J.S.A. 2C:15-1(b); N.J.S.A. 2C:18-

2(b)(2).

The State may also prosecute defendant as an accomplice. Under our

Criminal Code:

[a] person is an accomplice of another person in the
commission of an offense if:

(1) With the purpose of promoting or facilitating the
commission of the offense; he

(a) Solicits such other person to commit it;

(b) Aids or agrees or attempts to aid such other person
in planning or committing it; or

(c) Having a legal duty to prevent the commission of
the offense, fails to make proper effort to do so; or

(2) His conduct is expressly declared by law to establish
his complicity.

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

A-5417-18
13
 To be convicted of accomplice liability, an individual "must 'share the

same intent required to be proven against the person who actually committed the

act.'" In re State ex rel. A.D., 212 N.J. 200, 221 (2012) (quoting State v. Weeks,

107 N.J. 396, 405 (1987)). In addition to sharing the same intent as the principal,

an accomplice must also "at least indirectly participate in the commission of the

criminal act." State v. Whitaker, 200 N.J. 444, 459 (2009). "An accomplice is

only guilty of the same crime committed by the principal if he shares the same

criminal state of mind as the principal." Id. at 458. However, "an accomplice

who does not share the same intent or purpose as the principal may be guilty of

a lesser or different crime than the principal." Ibid.

Of particular relevance here, "[a]n accomplice may be guilty of armed

robbery even though he did not personally possess or use the firearm" during

the robbery. State v. White, 98 N.J. 122, 130 (1984). Thus, defendant can be

convicted as an accomplice if he "has committed the same crime as the

individual who possessed or used the gun if the accomplice had the purpose to

promote or facilitate that crime, namely robbery with the use of a firearm." Ibid.

If the jury finds defendant did not share the purpose to commit first degree

armed robbery, he may still be convicted of second degree robbery. Whitaker,

200 N.J. at 459. "[I]f the State could prove that defendant, acting as an

A-5417-18
14
accomplice, intended to aid or abet [the principal actor] in the theft and knew

that [the principal actor] was armed with a gun, then defendant too would be

guilty of armed robbery . . . ." Id. at 461-462.

The June 10, 2019 decision of the Criminal Part is reversed, the order

dismissing the charges against defendant is vacated, and Indictment 19-01-0011

is reinstated. The case is remanded for trial. We do not retain jurisdiction.

A-5417-18
15