NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2692-12T1
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, December 15, 2015 v. APPELLATE DIVISION RODNEY J. MILES, a/k/a JAMAL D. ALLEN,
Defendant-Appellant. _______________________________________________________
Submitted September 9, 2014 – Remanded October 14, 2014 Resubmitted December 8, 2015 – Decided December 15, 2015
Before Judges Fisher, Accurso and Manahan.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-04-00786.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (James C. Jones, Deputy Attorney General, on the brief).
The opinion of the court was delivered by
MANAHAN, J.A.D.
This matter returns to us after a remand to the Law
Division for a determination of the circumstances under which
the initial municipal court charge of simple possession was amended to loitering, whether the prosecutor was involved in the
downgrade, and whether controlling decisions of law barred the
second prosecution. State v. Miles, No. A-2692-12 (App. Div.
October 14, 2014) (slip op. at 8-10). As we conclude, after
application of the "same evidence" test, that defendant's second
prosecution was barred on grounds of double jeopardy, we
reverse.
We briefly set forth the facts and background from our
prior opinion:
On October 15, 2010, defendant was arrested in the City of Camden during an undercover drug operation. Defendant was charged in a warrant complaint with possession of a CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35- 5(b)(12). Defendant was also charged in a summons complaint with the disorderly persons offense of possession of fifty grams or less of marijuana, N.J.S.A. 2C:35-10(a). It is undisputed that these charges arose from the same course of conduct.
On April 4, 2011, the grand jury returned an indictment charging defendant with fourth-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35- 5(b)(12), and third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7. On September 14, 2011, defendant appeared pro se in municipal court via video conference from the county jail.1 Prior to that proceeding, the disorderly persons offense of possession of a CDS was amended to the offense of loitering to possess marijuana, N.J.S.A. 2C:33-2(b)(1). The
2 A-2692-12T1 following colloquy took place between the judge and defendant:
Q. All right. You're charged on October 15, 2010, with loitering to possess marijuana at 27th and Washington Street in Camden.
A. Yes, sir.
Q. Do you wish to have an attorney in this matter?
A. No, sir. What - - they got me - - can I ask you something? This is a municipal charge, right, Your Honor?
Q. Yes.
A. Well, why they got me going to Superior Court for this, Your Honor? That's why I said I don't understand.
Q. No, no, you're not going to Superior Court for child support, sir.
A. No, no, no, they had me - -
Q. Sir.
A. Okay.
Q. Trust me. I am not going to argue with you.
A. No, I'm not arguing.
Q. I'm not going to argue with you.
A. Oh, okay.
3 A-2692-12T1 Q. You're charged with loitering to possess marijuana in Camden, October 15, 2010. It'll be a $500 fine plus mandatory costs. Do you understand the penalties?
A. No, sir.
Q. Do you wish to have a trial?
Q. Do you want to plead guilty today?
Q. Are you pleading guilty because you are guilty?
Q. Are you doing it voluntarily?
Q. What's your plea to the charge, sir, guilty or not guilty? A. I plead guilty, sir.
Q. Did you loiter to possess marijuana at 27th and Washington Street in Camden on October 15, 2010?
A. Yes, I did, Your Honor.
4 A-2692-12T1 Q. Factual basis, plea, finding of guilty will be entered. $500 fine, $30 costs, $50 Violent Crime penalty, $75 [S]afe [N]eighborhood and [S]treet. Camden on or before December 6, 9:30 a.m., $25 a month. Okay?
A. Yes, Your Honor.
Q. Thank you.
Defendant moved to dismiss the indictment on double jeopardy grounds. Defendant argued in support of the motion that double jeopardy existed because he pled guilty to an offense that was related to the same conduct. The judge denied the motion finding the second prosecution was not barred because it required additional proofs.
________ 1During the course of the video conference, defendant admitted that he uses Rodney Miles as an alias but that David Allen is "his real name." Defendant was incarceratedon an unrelated charge related to nonpayment of child support.
[Miles, supra, slip op. at 1-4.]
Defendant also entered a conditional plea to count two of
the indictment. Pursuant to the plea bargain, he was sentenced
to probation. Defendant appealed the judge's denial of the
5 A-2692-12T1 motion to dismiss the indictment,1 and we remanded for further
proceedings. Miles, supra, slip op. at 10.
During the remand hearing, the prosecutor informed the Law
Division judge that when municipal charges are pending that
arise out of the same event as did these criminal charges, "we
ask the municipal court not to go forward, we pull those
complaints up to our office." Despite this procedure, there was
no information provided by the State at the remand hearing
whether in this case the disorderly persons charge was "pulled"
or, if it had been, why it remained in the municipal court
system. The prosecutor represented that in this case, his
office did not appear in municipal court nor was his office
notified of the proceeding. At the conclusion of the hearing,
the judge determined that the prosecutor played no role in the
downgrade of the municipal court charge.
The judge further held there was no basis to find that
defendant "did not understand that the serious offense" of
violating the school-zone statute "would continue to be
prosecuted, notwithstanding the efforts of the municipal court
judge, who was attempting to expedite [defendant's] release from
incarceration." He determined that the second prosecution was
1 The conditional plea preserved defendant's right to appeal from the adverse determination of the pretrial motion pursuant to Rule 3:9-3(f).
6 A-2692-12T1 not precluded by notions of fundamental fairness, because
defendant "was fully cognizant" of the pending Superior Court
proceedings "in light of his several appearances" in Superior
Court on those charges.
Defendant argues that the State either implicitly or
explicitly consented to the amendment of the municipal charge
and, because of its involvement, there is no basis to preclude a
finding that double jeopardy barred further prosecution based on
the "same conduct." Defendant further argues the doctrine of
fundamental fairness should bar further prosecution, since the
transcripts demonstrate he "in fact believe[d]" that his
municipal plea resolved the matter, and that his belief was
reasonable because he was "firmly told" by the court "that the
matter was in fact before the municipal court for adjudication."
The State argues that double jeopardy did not attach
because the municipal court's unilateral amendment of the charge
"amounts to a legal nullity." The State further argues that the
municipal court no longer had jurisdiction to process the
municipal complaint upon defendant's indictment.2
2 During the remand hearing, it was noted that it is a regular practice for the municipal court judge conducting the "video" hearing to sua sponte downgrade charges in an effort to resolve the open charges and effectuate the release of a defendant.
7 A-2692-12T1 The State also argues that the record supports the Law
Division judge's decision that the second prosecution was not
precluded by principles of fundamental fairness, as there was no
evidence of harassment or oppression by the State. Further, the
State contends that defendant could not have reasonably expected
that the original plea offer of five years' imprisonment with a
fifteen-month parole disqualifier could be resolved by a $500
fine, and points out that defendant appeared in Superior Court
on the indictable charges five times, including the day before
the municipal court date.
I.
Actions taken by a municipal court on matters beyond its
jurisdiction are a legal nullity that cannot form the basis for
a later plea of double jeopardy. State v. Le Jambre, 42 N.J.
315, 319 (1964). Here, defendant was not charged in municipal
court with a crime. Defendant was charged with the possession
of less than fifty grams of marijuana in violation of N.J.S.A.
2C:35-10(a)(4), which specifies that possession of that quantity
of marijuana is a disorderly persons offense. Disorderly
persons offenses, as designated by statute, are not crimes
within the meaning of the New Jersey Constitution. N.J.S.A.
2C:1-4(b). They afford no right to indictment or trial by jury,
and conviction of such an offense may not "give rise to any
8 A-2692-12T1 disability or legal disadvantage based on conviction of a
crime." Ibid. The statutory jurisdiction of the municipal
court includes disorderly persons offenses. R. 7:1.
Although the municipal court judge misunderstood the status
of defendant's drug-related charges pending in the Superior
Court, we reject the State's argument that the return of the
indictment deprived the municipal court of jurisdiction over the
disorderly persons offense. See State v. Labato, 7 N.J. 137,
151 (1951) (prosecutor's objection to proceeding on disorderly
persons offense in former city police court did not deprive the
police court of jurisdiction over that offense, even when
indictment on the same facts was returned two weeks after the
conviction).
II.
Rule 3:15-3 states:
(a) Joinder of Criminal Offense and Lesser Related Infraction.
(1) Except as provided in paragraph (b), the court shall join any pending non-indictable complaint for trial with a criminal offense based on the same conduct or arising from the same episode.
. . . .
(c) Consequence of Failure to Join. In no event shall failure to join as required in paragraph (a) be deemed to constitute
9 A-2692-12T1 grounds for barring a subsequent prosecution of the complaint except as required by statute or by the Federal or State Constitutions.
It is without dispute that defendant's municipal court
charge was required to be joined and resolved with his
indictable offenses then pending in Superior Court. This did
not occur for reasons that, even after remand, remain unclear.
However, as the Rule states, defendant's conviction in municipal
court of a disorderly persons offense did not bar subsequent
prosecution on the indictable unless that prosecution was barred
by constitutional protections such as the Double Jeopardy
Clause.
III.
Defendant's principal argument is that his "school-zone"
conviction was barred on double jeopardy grounds. The Double
Jeopardy Clause of the Fifth Amendment provides that no person
shall "be subject for the same offense to be twice put in
jeopardy of life or limb[.]" U.S. Const. amend. V. "The
parallel provision in the State Constitution is Article I,
paragraph 11, which provides: '[n]o person shall, after
acquittal, be tried for the same offense.'" State v. DeLuca,
108 N.J. 98, 102, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98
L. Ed. 2d 358 (1987).
10 A-2692-12T1 When reviewing double jeopardy claims, the issue is
"'whether the second prosecution is for the same offense
involved in the first.'" State v. Yoskowitz, 116 N.J. 679, 689
(quoting DeLuca, supra, 108 N.J. at 102). In State v. Salter,
425 N.J. Super. 504, 518-19 (App. Div. 2012), we explained:
The longstanding rule for determining whether a second prosecution is for the "same offense" was expressed in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). In that case, "[t]he Court stated that 'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.'"
. . . [O]ur Supreme Court slightly expanded the analysis, noting that the question is "whether the evidence actually used to establish guilt in the first prosecution is identical to that that will be used in the second prosecution." . . . "[I]n DeLuca, the Court 'established that a second prosecution will be barred if either the "elements" test or the "evidence" test is satisfied.'" "If the same evidence used in the first prosecution is the sole evidence in the second, the prosecution of the second offense is barred."
[(internal citations omitted).]
The protections against double jeopardy afforded by the New
Jersey Constitution are co-extensive with those guaranteed by
the Federal Constitution. State v. Schubert, 212 N.J. 295, 304
(2012). Three separate constitutional safeguards are
11 A-2692-12T1 incorporated within its protections: "It protects against a
second prosecution for the same offense after acquittal. It
protects against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for
the same offense." State v. Dively, 92 N.J. 573, 578 (1983)
(quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct.
2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969)).
Here, the factual scenario presented and the applicable
statute implicates the protection against a second prosecution
after conviction as well as whether multiple punishments may be
imposed for the same offense.
We commence our discussion by addressing the school-zone
statute. N.J.S.A. 2C:35-7(a) and (c) state in relevant part:
a. Any person who violates subsection a. of [N.J.S.A.] 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or a school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in [N.J.S.A.] 2C:35-12, be sentenced by the court to a term of imprisonment. Where the violation involves less than one ounce of marijuana, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one- third and one-half of the sentence imposed, or one year, whichever is greater, during
12 A-2692-12T1 which the defendant shall be ineligible for parole. . . .
c. Notwithstanding the provisions of [N.J.S.A.] 2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for a violation of subsection a. of [N.J.S.A.] 2C:35-5 (manufacturing, distributing or dispensing) or [N.J.S.A.] 2C:35-6 (employing a juvenile in a drug distribution scheme).
New Jersey applies a two-part test for determining whether
multiple punishments constitute double jeopardy. State v.
Maldonado, 137 N.J. 536, 580 (1994). First, the court should
determine whether the Legislature intended that a defendant
incur multiple punishments for the conduct. Ibid. Next, if the
legislative intent is unclear, the court will proceed to apply
the test set forth in Blockburger, supra, 284 U.S. at 304, 52 S.
Ct. at 182, 76 L. Ed. at 309. Ibid.
In State v. Dillihay, 127 N.J. 42, 50-52 (1992), the Court
held that double jeopardy principles preclude multiple
punishments for a defendant convicted of both N.J.S.A. 2C:35-5
(Section 5 offenses) and, also, for the crime of violating
N.J.S.A. 2C:35-7 (Section 7 offenses) based on the fact that the
Section 5 offense occurred in a school zone. The anti-merger
provision of N.J.S.A. 2C:35-7(c) allowed for multiple
convictions on both statutes. Dillihay, supra, 127 N.J. at 50-
13 A-2692-12T1 52. However, it was held that the two offenses were "the same"
under the Blockburger test "because the State must prove all
elements of Section 5 offense in order to establish a violation
of Section 7," and the Section 5 offense does not require proof
of any additional facts required to establish the school-zone
offense. Id. at 51.
The Court determined that, although convictions for first
and second-degree crimes based on violations of N.J.S.A. 2C:35-5
must merge into a third-degree crime for violating the school-
zone statute, a defendant convicted of a drug offense in a
school zone must be "sentenced to no less than the mandatory
minimum sentence provided in the school-zone statute." Id. at
55. That result would reflect the Legislature's clear intent to
impose an enhanced punishment upon defendants whose violations
of Section 5 occur in a school zone. Ibid.
A.
In pleading to the amended disorderly persons offense,
defendant admitted that he "loiter[ed] to possess marijuana."
In his Superior Court plea to violation of N.J.S.A. 2C:35-7, he
admitted he possessed the drug with the intent to distribute it,
in violation of N.J.S.A. 2C:35-5(b)(12).
Pursuant to Dillihay, the original fourth-degree predicate
charge of violating N.J.S.A. 2C:35-5(b)(12) would have merged
14 A-2692-12T1 with his conviction for the Section 7 offense. Therefore, had
he been convicted of both indictable offenses, he could have
been subjected only to a single punishment. Moreover, had he
been convicted in municipal court of the original disorderly
offense with which he was charged, his conviction for N.J.S.A.
2C:35-7 would have been barred by the same double jeopardy
principles that require merger of Section 5 offenses with the
Section 7 school-zone crimes.
In application of the Blockburger "elements" test, we
conclude the school-zone crime and the loitering offense to
which defendant pled guilty are not the same offense for purpose
of double jeopardy because they each contain different elements
from the other. The loitering statute penalizes persons who
loiter in a public place for the purpose of obtaining or
distributing drugs and who exhibit conduct manifesting that
purpose. N.J.S.A. 2C:33-2.1(b). Section (c) of the statute
emphasizes that an essential element of the offense is that the
conduct occur in a public place. N.J.S.A. 2C:33-2.1(c). The
statute describes conduct that "may" be deemed adequate to
establish the defendant's purpose in loitering, including
repeated: (1) beckoning or stopping motorists or pedestrians "in
a public place"; (2) passing or receiving objects from motorists
or pedestrians "in a public place"; or (3) circling in a motor
15 A-2692-12T1 vehicle and passing or receiving an object from a person "in a
public place." Ibid.
A conviction under N.J.S.A. 2C:35-7 requires proof that the
violation occurred in a school zone as an element of the
offense. State v. Baynes, 148 N.J. 434, 449 (1997). The
elements of the crime are: "(1) possession of a controlled
dangerous substance, (2) with the purposeful or knowing intent
to distribute the substance, and (3) within 1000 feet of any
school property." State v. Gregory, 220 N.J. 413, 420 (2015).
In contrast, the loitering statute does not require as an
element of the offense that the possession or distribution of
drugs occurred in a public place within a school zone. Although
it is an affirmative defense to prosecution under the school-
zone statute if the prohibited conduct took place entirely in a
private residence, that defense applies only when, at the time
it occurred, no one younger than seventeen years old was present
and the offense did not involve distribution or possession with
intent to distribute or dispense a drug for profit. N.J.S.A.
2C:35-7(e). The distribution or sale for profit of drugs in a
private residence located within a school zone is generally
prohibited under the statute. N.J.S.A. 2C:35-7.
Defendant's conviction under N.J.S.A. 2C:35-7 also required
as an element of the crime that he possessed the drugs with the
16 A-2692-12T1 intent to distribute them. N.J.S.A. 2C:35-7(a). This element is
not required for conviction of the disorderly persons offense of
loitering in a public place. N.J.S.A. 2C:33-2.1.
Accordingly, we conclude the "elements" test does not bar
defendant's second prosecution.
B.
In determining whether a successive prosecution would be
barred, New Jersey courts have also applied the "same evidence"
test. DeLuca, supra, 108 N.J. at 108-09; Yoskowitz, supra, 116
N.J. at 689-92.3 Under the "same evidence" test, as expressed by
the United States Supreme Court in Illinois v. Vitale, 447 U.S.
410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980), the Double
Jeopardy clause will preclude a later prosecution of a greater
offense where a defendant already has been convicted of a lesser
offense: (1) when "the lesser-included offense require[d] no
proof beyond that required in the greater offense," and (2)
"also the proof of the greater offense must establish the lesser
offense." Dively, supra, 92 N.J. at 581. The "same evidence"
test may be applied to determine if a defendant's guilty plea
3 The motion judge mistakenly referred to the Blockburger "same elements" test as the "same conduct" test. The term "same conduct" test is generally used to mean the alternative to Blockburger, also called the "same evidence" test. See, e.g., United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993); State v. Colon, 374 N.J. Super. 199, 206 (App. Div. 2005).
17 A-2692-12T1 precludes a second prosecution based on the same evidence that
supported the plea to the first offense. State v. Hand, 416
N.J. Super. 622, 629 (App. Div. 2010).
Here, the "evidence" that defendant violated the school-
zone statute was based on the allegation that he was located at
27th and Washington Streets when he possessed the marijuana with
the intent to distribute it and that location was within 1000
feet of a school. Although defendant did not admit to his
location in his plea to the indictable offense, proof of his
location was evidence required to prove the crime.
The defendant's location in a public place was the same
evidence required to find him guilty of the disorderly persons
offense of loitering. Since proof of defendant's location was
critical to a conviction for both charges, the proof relied on
by the State to establish defendant's conviction for possession
within a school zone would also establish his violation of the
loitering statute. Defendant's conviction on the loitering
statute required no proof beyond that. Therefore, applying the
same evidence test would preclude defendant's subsequent
prosecution under N.J.S.A. 2C:35-7.
We note that in 1993 the United States Supreme Court
rejected the "same evidence" test as an alternate to the
Blockburger test. Dixon, supra, 509 U.S. at 703-12, 113 S. Ct.
18 A-2692-12T1 2859-64, 125 L. Ed. 2d at 572-78 (overruling Grady v. Corbin,
495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), and its
antecedents, which included Vitale, supra, 447 U.S. at 410, 100
S. Ct. at 2260, 65 L. Ed. 2d at 228).
In Colon, supra, 374 N.J. Super. at 206, we recognized that
the test had been "repudiated by Dixon." However, we "declined
to find, in the absence of dispositive precedent to the
contrary, that the 'same [evidence]' test was no longer
applicable to a determination of double jeopardy under the New
Jersey Constitution." Ibid.
Similarly, in State v. Capak, 271 N.J. Super. 397, 402-04
(App. Div.), certif. denied, 137 N.J. 164 (1994), we recognized
Dixon's holding, and noted that New Jersey constitutional
protections are co-extensive with federal protections. Despite
that recognition, we stated, "to the extent DeLuca and Yoskowitz
may be understood to embody state constitutional principles,
until our Supreme Court holds otherwise," we would continue to
apply the "same [evidence]" test. Id. at 403. Further, this
court hewed to that position when we applied the "same evidence"
test in Hand, supra, 416 N.J. Super. 627-31.
This court, however, has also declined to apply the "same
evidence" test in light of Dixon. See State v. Kelly, 406 N.J.
Super. 332, 350 (App. Div. 2009) (rejecting defendant's double
19 A-2692-12T1 jeopardy arguments, in part, because they were based on Grady v.
Corbin, which was overruled by the United States Supreme Court
in Dixon), aff'd on other grounds, State v. Kelly, 201 N.J. 471
(2010); State v. Ellis, 280 N.J. Super. 533, 550 (App. Div.
1995) (declining to apply "same evidence" test from Grady v.
Corbin because it had been overruled).
In reaching our determination, we adopt the rationale
utilized in Hand, supra, 416 N.J. Super. at 631, where we
rejected the "more restrictive approach" of Dixon:
As an intermediate appellate court, we are therefore confronted with the difficult determination of whether to adhere to the Court's existing interpretation of federal and state double jeopardy protections, set forth in [Yoskowitz, supra, 116 N.J. at 563,] DeLuca and Dively, or without significant precedent to suggest that the Court would narrow or restrict the flexibility of its view of double jeopardy to accord with newly-established federal constitutional law, to forecast that it would do so in a state constitutional context. We find the latter course to be presumptuous, and, accordingly, follow Capak in holding that such a determination must be made by the Supreme Court, not by us. We accordingly view defendant's proofs in light of the "same [evidence]" test in determining whether state constitutional proscriptions against double jeopardy have been violated.
[(quoting Colon, supra, 374 N.J. Super. at 216).]
20 A-2692-12T1 C.
The State argues that its lack of involvement in the
municipal court proceedings militates against a finding of
double jeopardy on fundamental fairness grounds.4 First, we
disagree that prosecutorial involvement in the proceedings is
requisite to such a finding. Second, while it may be that the
State had no knowledge of the proceedings that resulted in
defendant's municipal court plea, the State should have been
aware that a disorderly persons offense based upon the same
conduct had been lodged against the defendant. Yet, even on
remand, the State could offer no explanation why the offense was
not joined with the indictable charges. The failure to join the
offense resulted in the offense's amendment and disposition
through a municipal court process of which the State was aware,
even if the prosecutor was not noticed for the proceeding in
question.
The procedure that allowed the municipal court to amend the
charges produced an unfair outcome for defendant. As we noted,
4 In regard to its applicability to either party, fundamental fairness has been held to be a "settled repository of rights of the accused." State v. Abbati, 99 N.J. 418, 430 (1985). Even if we harbored doubts about whether the doctrine of fundamental fairness may be invoked by other than the accused, we need not decide that question because we conclude that the doctrine — if considered here from the State's point of view — does not warrant the outcome the State has urged.
21 A-2692-12T1 a plea to the original charge of possession as a lesser-included
offense would have resulted in the unequivocal bar of the
indictable charges.
Additionally, we disagree that defendant should have known
his municipal court plea was not intended to resolve the
indictable charges. A fair reading of the transcript evinces
defendant's efforts to inform the municipal court judge of the
Superior Court charges. At worst, the uncounseled defendant was
misled and, at best, defendant was understandably confused.
Through no fault of his own he accepted the plea offered by the
municipal court judge and was sentenced.
Notwithstanding our determination on the issues of
prosecutorial involvement, fairness and notice to defendant, we
conclude that "fundamental fairness" would not bar the second
prosecution.
The fundamental fairness doctrine derives from an implied
judicial authority to create appropriate and just remedies and
to assure the efficient administration of the criminal justice
system. Abbati, supra, 99 N.J. at 427. It has been
"extrapolated from or implied in other constitutional
guarantees" that nevertheless are insufficient to protect
individual defendants harassed by arbitrary government action.
Doe v. Poritz, 142 N.J. 1, 109 (1995) (quoting Yoskowitz, supra,
22 A-2692-12T1 116 N.J. at 731 (Handler, J., dissenting)). The doctrine has
been applied when "[s]omeone was being subjected to potentially
unfair treatment and there was no explicit statutory or
constitutional protection to be invoked." Ibid.
Our Supreme Court has cautioned that the doctrine is to be
applied "sparingly" to the most compelling circumstances where,
in the absence of judicial intervention, a defendant will be
subject to oppression, harassment or egregious deprivation.
State v. Saavedra, 222 N.J. 39, 67 (2015); State v. Miller, 216
N.J. 40, 71-72 (2013), cert. denied, ___ U.S. ___, 134 S. Ct.
1329, 188 L. Ed. 2d 339 (2014); Yoskowitz, supra, 116 N.J. at
712. It has been applied only in the clearest of cases. See
State v. Maisonet, 166 N.J. 9, 13-21 (2001) (defendant was
forced to appear for a jury trial over several days in a dirty
and disheveled condition having been denied access to soap,
running water, toothpaste or a comb); Doe, supra, 142 N.J. at
108-09 (the doctrine of fundamental fairness required the
institution of procedural protections to determine
classification of convicted sex offenders will be subject to
community supervision and notification provisions); State v.
Tropea, 78 N.J. 309, 311-16 (1978) (fundamental fairness
precluded remand for retrial when State has failed to introduce
evidence of essential element of proof); State v. Baker, 310
23 A-2692-12T1 N.J. Super. 128, 138 (App. Div. 1998) (fundamental fairness
precluded State from seeking death penalty based on deliberate
prosecutorial misconduct in seizing juror notes and releasing
them to the press after conviction but before penalty phase had
commenced), certif. denied, 174 N.J. 192 (2002).
Had we been required to decide the applicability of the
fundamental fairness doctrine as essential to the resolution of
this appeal, we would conclude that the facts presented do not
qualify as the type of indisputably unfair circumstances that
have garnered judicial support for application of the doctrine.
Reversed.
24 A-2692-12T1