The Appellate Division concluded with the following in relevant part: In re Grand Jury Subpoena Issued to Galasso (App. Div. 2006). “‘The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.'” State v. Doliner (1984) (quoting United States v. Sells Eng’g, Inc., 463 U.S. 418, 423 (1983)). Applying Cain’s holding to grand jury proceedings “going forward” would in no way compromise the grand jury’s ability to operate as an independent investigatory body.
“While performing those functions, the prosecutor cannot impinge on a grand jury’s independence and improperly influence its determination.” Thus, we find no principled reason to conclude that the holding in Cain, which prohibits eliciting expert testimony regarding a defendant’s intent to distribute in a drug-trafficking prosecution, should not apply to grand jury proceedings.
As a result, we reverse the judge’s decision denying defendant’s motion to dismiss counts three, four, five, six, nine and ten of the indictment, all of which required an intent to distribute as an element of the charged offense. However, we affirm the denial of defendant’s motion to dismiss counts one and two of the indictment for the reasons stated by the judge because those counts do not include an intent to distribute as an element of the offenses. We hasten to add that nothing in this opinion precludes the State from re-presenting this matter to another grand jury. See State v. Jeannotte-Rodriguez (App. Div. 2021) (affirming the dismissal of an indictment without prejudice). Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.
Given the one-sided nature of a grand jury presentation, the prosecution will almost certainly secure an indictment if the case is presented again. In the interim, the defense may be able to secure a better plea offer if the prosecution does not want to make the effort to represent the case.