A prosecutor’s improper remarks to grand jurors after they voted to indict a drug defendant but before the indictment was handed up were grounds for dismissal of the case.

Cape May County Superior Court Judge Raymond Batten ruled that the comments, concerning the amount and significance of the evidence and the accused’s guilt, "improperly intruded on the grand jury’s decision-making function and, at the very least, gave rise to an intolerable appearance of taint."

Batten’s opinion explaining his sua sponte dismissal of the indictment in State v. Eckel, No. 12-02-0098, was approved for publication on Monday.

Mark Eckel was accused of selling five folds of heroin to 26-year-old Christian O’Rourke of Lower Township in a bank parking lot on Feb. 8, 2011. That night, local police got a call that O’Rourke was unconscious and unresponsive and took him to Cape May Regional Medical Center, where he died the next day. An autopsy found the cause of death was heroin toxicity.

On Feb. 14, 2012, a grand jury voted to indict Eckel for two crimes: third-degree sale of illegal drugs and first-degree knowing sale to a person who dies as a result.

After the vote to indict, but before the indictment was presented in court, Assistant Cape May County Prosecutor Saverio Carroccia closed the record for deliberation but continued to address the grand jurors and to answer questions.

Carroccia termed what Eckel did "absolutely a crime," but one that "becomes problematic at trial because the victim gets put on trial." He said it is difficult to "get all 12 [petit] jurors to pull the trigger" to convict.

He added that he had prosecuted Eckel in the past four years and that when O’Rourke died, Eckel was on probation in four cases, one of which involved drug distribution.

Between the overdose and the grand jury hearing, Eckel had been resentenced for violating probation and was "serving eight years in prison while waiting for this matter to resolve," Carroccia said.

On July 2, 2012, Eckel moved to dismiss the charges, in part on the ground that the state misled the grand jury by failing to present exculpatory evidence concerning Xanax use by O’Rourke and his girlfriend in the days leading up to the overdose.

Batten denied the motion on Aug. 2 but, on his own, raised the issue of Carroccia’s comments to the jury. At an Aug. 30 hearing, he dismissed the indictment on that basis.

As a preliminary question, Batten had to decide at what point an indictment is considered returned, because only comments before the return could be problematic. "Ascertaining whether the prosecutor’s comments occurred before or after return of the indictment is critical to the determination of whether those comments unfairly intruded on the grand jury’s decision-making function," he wrote in his Sept. 6 opinion.

In finding an indictment is returned only when presented to the court, Batten relied on State v. Rhodes, 11 N.J. 515 (1963), which dismissed an indictment voted by a grand jury but not turned over to the court until a few days later, right after the statute of limitations expired.

The Rhodes court stated that the grand jury vote "was in no sense final and could have been changed at any time prior to the return of the indictment" and that the return in open court "constitutes the first objective act which renders the indictment effective under circumstances calculated to protect the proper legal interest of both the State and the defendant."

Batten found that because Carroccia "interjected himself between the vote and the return, any communications by him to the grand jury had the potential to render the returned indictment defective because the grand jury’s determination could have been changed at any time after the comments and prior to physical return."

Carroccia’s statements to the grand jury that Eckel committed the crime and had a criminal history "crossed the line from proper explanation of the evidence to improper expressions of the defendant’s guilt" and impinged on the grand jury’s independence and decision-making role, Batten wrote.

There was also a risk that the statements might influence that same grand jury in other cases, he added.

Eckel’s lawyer, Atlantic City solo Stephen Funk, says "prosecutors need to watch out when the tape is still running when they have any kind of conversation with the grand jury."

Funk says the audio recording of the grand jury presentment that he obtained from the court when he took on Eckel’s defense did not include the Carroccia comments but that they were in the transcript he ordered.

The Cape May County Prosecutor’s Office did not return a call. Neither did Carroccia, now with the Cumberland County Prosecutor’s Office.

Eckel was reindicted last October but has not yet been tried. He is serving an eight-year sentence for forgery and terroristic threats, crimes that predate O’Rourke’s overdose but for which he was not sentenced until 2011.