The three-judge appellate panel concluded with the following in relevant part: We are persuaded that defendant’s original 1999 sentence required him to comply ostensibly for the rest of his life with Megan’s Law’s registration requirements, which, in themselves, were not punitive but were enforced through decidedly punitive means. The amendments increased the punishment for defendant’s non-compliance with that portion of his 1999 sentence. As such, the amendments “materially altered defendant’s prior sentence to his disadvantage. We therefore agree with Judge Flynn that the State may not prosecute the crimes charged in counts three and four as third-degree crimes.
However, we see no reason why the judge dismissed the counts without prejudice, thereby forcing the State to return to the grand jury if it sought to re-indict defendant based on the same proofs it originally adduced. The only consequence of that effort would be essentially to amend the charges to properly designate them as fourth-degree offenses. Our Court Rules already permit such an amendment without re-presentation. Compare R. 3:7-4 (permitting amendment of the indictment “to correct an error in the description of the crime or to charge a lesser included offense provided that the amendment does not charge another or different offense and the defendant will not be prejudiced in his or her defense”), with State v. Dorn, 233 N.J. 81, 93-94 (2018) (explaining constitutional right to indictment and limits upon subsequent amendment). On the record before us, defendant never challenged the sufficiency of the evidence before the grand jury, nor could he claim any prejudice resulted from having to defend now against crimes that required proof of the same elements but carried lesser penalties. On the State’s motion, the court may amend the indictment to reflect the proper grading of the charges. The trial court’s decision is affirmed as modified.
The court’s reasoning is sound with regard to the State not being forced to represent the case to a new grand jury. Judge Flynn may have been guided by the fact that the grand jury was presented with patently incorrect information with regard to the grading of the proposed charge. That misinformation however, was immaterial.
