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New Jersey Supreme Court: Substantive Error to Amend Indictment to Change Degree of Felony on Eve of Trial

by Matt Clarke

On April 25, 2018, the Supreme Court of New Jersey held that a trial court erred when, on the eve of trial, it permitted the State to amend the indictment to increase a charge from a third-degree to a second-degree felony.

Following surveillance on a suspected drug dealer, police pulled over Todd Dorn’s vehicle and told him they were in the process of obtaining a search warrant for the vehicle and his home. He consented to a search of both locations. Thirty-five glassine bags containing heroin and 2.65 ounces of marijuana were found in his home.

Dorn was indicted on multiple counts, including second-degree possession of heroin with intent to distribute within 500 feet of public housing, a public park, or public building in violation of N.J.S.A. 2C35-7.1 (count one) and third-degree possession of marijuana with the intent to distribute within 500 feet of public housing, a public park, or public building in violation of N.J.S.A. 2C35-7.1 (count two).

Dorn rejected a pre-trial plea bargain offer of five years imprisonment with two-and-a-half years parole ineligibility. The day before the trial, the prosecutor moved to amend the indictment to have count two read as a second-degree felony, arguing that an administrative error had been made and the degree for that offense was higher. Over defendant’s objections, the trial court permitted the amendment. Dorn was subsequently convicted of counts one and two and sentenced to two concurrent terms of 10 years imprisonment with five years of parole ineligibility. He appealed.

The Appellate Division affirmed, and Dorn appealed to the Supreme Court.

The New Jersey Supreme Court held that the amendment to count two violated Dorn’s right to grand jury presentment under the New Jersey Constitution. It rejected the State’s argument that the amount of marijuana proven during the grand jury’s consideration of count five was sufficient to put Dorn on notice that count two met the requirement of exceeding an ounce necessary for count two to be a second-degree felony. Dorn argued that he rejected the plea bargain offer because he believed the maximum sentence he could have received was 20 years imprisonment with 10 years parole ineligibility, not the 30 years imprisonment with 15 years parole ineligibility he faced after count two was amended.

The Court noted that this case was analogous to State v. Catlow, 502 A.2d 48 (N.J. App. Div. 1985), where the Appellate Division found error when a trial court instructed the jury on a first-degree offense when the count in the indictment did not contain specific allegations of an essential element of the offense, i.e., the degree. The Supreme Court concluded that the improper amendment to count two was “substantive” and that Dorn “was prejudiced by the amendment.” The Court instructed that “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.”

Accordingly, the Supreme Court affirmed the conviction in count one but reversed the sentence in count two, remanding the case to the trial court for resentencing of count two as a third-degree felony. See: State v. Dorn, 182 A.3d 938 (N.J. 2018). 

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State v. Dorn



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