NJ Court Reinstates Indictment for Disarming Officer, Rejects SOP Claim

State of New Jersey v. Jorge Rojas

Docket No. A-2629-23

Decided December 19, 2024

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent unpublished opinion, the Appellate Court of New Jersey decided the State’s appeal from a Law Division order granting defendant’s motion to dismiss his indictment for second-degree disarming a law enforcement officer, N.J.S.A. 2C:12-11(a).

On May 17, 2022, at approximately 8:15 p.m., officers responded to a massage parlor in Tuckerton Borough for a report of an intoxicated male attempting to leave the business naked. When officers arrived on scene, defendant was already naked. The officers asked the defendant to put his pants on several times but he refused. He then began grabbing his genitals and making other gestures towards the officers. Officers then arrested defendant. As he was being handcuffed, defendant spit on one of the officers and was yelling profanities and racial slurs at the officers.

After attempting to place the defendant in a holding cell at the police station, officers observed that defendant was holding a rubber band in his clenched fist.  He refused to relinquish it and began fighting with one of the officers when they tried to take it from him. Defendant then began fighting with other officers trying to assist and was threatening to kill them as well. Defendant then shifted one of the officer’s vest and grabbed the handle of his service revolver, while repeatedly stating, “I need you to kill me.” During transport to the hospital, the defendant threatened to sexually assault one of the officer’s mother and kill his family.

On August 25, 2022, defendant was indicted for second-degree disarming a law enforcement officer, among other offenses. The State did not play the BWC videos for the grand jury and only had Sergeant Cahill testify about the defendant grabbing the handle of his service weapon in an attempt to pull it out of its holster.

Defendant filed a motion to dismiss the indictment, arguing that the State misrepresented his mental state and his actions as captured on video and provided false testimony and insufficient evidence. Defendant also argued Sergeant Cahill violated the department’s standard operating procedure (SOP) that “[o]fficers shall s Grand Jury Process Law of the Case Doctrine NJ Standard Operating Procedures (SOP) ecure their firearm prior to processing a detainee.”  Defendant contended the State was required to advise the grand jury of this alleged SOP violation because it was exculpatory. The State denied Sergeant Cahill violated the SOP and asserted, even if he did, the alleged violation was not exculpatory evidence that it was required to present to the grand jury.

Approximately one year later, on August 21, 2023, the court entered an order granting the motion supported by a written opinion. The court reviewed the body worn camera video that was not shown to the grand jury and noted “defendant’s hand can be seen touching the side of the frame of a large plastic tactical holster worn by [Sergeant] Cahill, . . . [b]ut the video does not show defendant touch the grip or any other portion of the actual firearm nor does it show any attempt to remove the firearm from the holster.”  If the State showed the BWC video, the grand jury would also have seen “defendant’s mental condition and the events which occurred in the booking room . . . .”  The court found “the grand jury was deprived of this vital information, which directly effects an element of the disarming offense” because “the State did not show the BWC footage to the grand jurors or otherwise describe it in an accurate fashion.”  This “deprived the grand jury of the information necessary to determine if there was ‘some evidence’ defendant ‘purposely’ attempted to disarm [Sergeant] Cahill.”

On September 21, 2023, the State re-indicted defendant for second-degree disarming a law enforcement officer, among other charges, in a superseding indictment by a different grand jury. Sergeant Cahill testified, and the grand jury viewed relevant portions of the BWC videos that were not shown to the prior grand jury.  The State did not advise the grand jury that Sergeant Cahill allegedly violated the SOP by entering the holding cell with his firearm. Defendant moved to dismiss the entire indictment, arguing the State did not present evidence in its possession that clearly shows defendant was intoxicated, suicidal, prone to anxiety, in moments of lucidity was polite and respectful without any animosity, apparent from defendant’s behavior and statements captured by the BWC recordings. Defendant also moved to dismiss the indictment for disarming a law enforcement officer, arguing the State did not advise the grand jury that Sergeant Cahill violated the SOP which defendant could use to present an affirmative defense of objective entrapment.

The court rejected defendant’s contention the State failed to advise the grand jury of a possible entrapment defense. The court, however, found the prior judge’s August 21, 2023 written opinion “held that ‘the grand jurors should have been told the officers breached'” the SOP. On April 16, 2024, the court filed an amplification of its March 22, 2024 written opinion pursuant to Rule 2:5-1(b). The court asserted that the August 21, 2023 order remains unchallenged and presents the law of the case, it must be consistently adhered to as the case proceeds and not subject to inconsistent future rulings because the case was transferred to another judge. The State subsequently appealed.

On appeal, the State contended that, (1) the trial judge committed legal error and this case must be reviewed De Novo; (2) The State did not fail to present clearly exculpatory evidence that directly negated defendant’s guilt to the grand jury; and (3) The Tuckerton Police Department SOP does not negate guilt and is not exculpatory. Ultimately, the Appellate Court concluded that the trial court incorrectly dismissed the indictment based on the law of the case doctrine. The appellate court articulated that the August 21, 2023 order was based on the court’s finding that numerous factors tainted the grand jury presentation. The court did not find the failure to advise the grand jury of the alleged SOP violation, standing alone, required dismissal of the indictment. The court’s subsequent determination that failure to advise the second grand jury of the alleged SOP violation required dismissal of the indictment based on the law of the case doctrine was incorrect. Thus, the appellate court was convinced the court incorrectly determined the alleged SOP violation was “exculpatory” evidence the State was obligated to present to the grand jury. The court noted that the alleged SOP violation at issue in this case does not “directly negate guilt” by “squarely refuting an element of the crime,” nor is it “clearly exculpatory” as defined in State v. Hogan. Since the evidence of the alleged SOP violation does not “directly negate guilt” by “squarely refuting an element of the crime,” nor is it “clearly exculpatory,” the State was not required to present it to the grand jury. As a result, the appellate court reversed the March 25, 2024 order dismissing the indictment for disarming a law enforcement officer.

At Hark & Hark, we are experienced attorneys who represent clients in Superior Court for issues like the previously discussed case pertaining motions to dismiss indictments. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.