Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
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Monday, September 28, 2009


09-10-09 STATE v. AURELIO RAY CAGNO A-7021-03T4
A RICO conspiracy must continue to within five years of the indictment, but there is a presumption that
the conspiracy continues when a member of an organized crime family is involved, and the State does
not have to prove that an overt act occurred within the five year period. In any event, in this case a
Family member's refusal to testify over a grant of immunity and signal of "thumbs up" to defendant as
he left the courtroom at defendant's first trial can be considered overt acts in a superseding indictment.

Edited by Umair Hussain

State vs. Cooper

09-25-09* State vs. David Cooper A-2810-07T4
In a case in which defendant was sentenced to death and his sentence was upheld by the Supreme
Court and thereafter converted to life without parole upon abolition of the death penalty, a post
conviction relief petition addressed to the penalty phase, including claims of ineffective assistance of
counsel, was not moot because, if defendant is entitled to a new penalty proceeding, he could be
sentenced to a term less than life without parole. The scope of review embodying a claim of ineffective
assistance of counsel in a PCR involving a case in which the death penalty was imposed will remain the
same as it was at the time of trial. In the absence of prejudice, the Public Defender could substitute one
of defendant's trial counsel before the jury was empanelled and sworn, and the decision was for the
Public Defender, not the originally designated attorney, to decide. Given the mitigating factors
presented to the jury, including his mother's addiction to alcohol during pregnancy and while defendant
was a child, defendant did not demonstrate there was a reasonable probability that the penalty phase
deliberations would have been affected by proofs that defendant could be diagnosed as the victim of
fetal alcohol syndrome. [*Approved for Publication date]

Edited by Umair Hussain

I/M/O OF J.W. A-5458-08T1

09-28-09 I/M/O OF J.W. A-5458-08T1
Internet and area notification consistent with moderate risk of recidivism is warranted under Megan's
Law for this registrant both by reason of his RRAS tiering score and because of uniquely serious factors
which bring the matter further out of "heartland" contemplated by the RRAS.

Edited by Umair Hussain

Tuesday, September 08, 2009

Court Rule 1:8-10. Polling of Jury

1:8-10. Polling of Jury

Before the verdict is recorded, the jury shall be polled at the request of any party or upon the court's motion, and it shall be polled in every civil action if the verdict is not unanimous. If the poll discloses that there is not unanimous concurrence in a criminal action or concurrence by the number required by R. 1:8-2(c) in a civil action, the jury may be directed to retire for further deliberations or discharged

Court Rule 1:8-9. Return of Verdict

1:8-9. Return of Verdict

In every trial by jury the verdict shall be returned by the jury to the judge in open court. The verdict shall be unanimous in all criminal actions and shall be rendered in civil actions by the number required by R. 1:8-2(c).

Court Rule 1:8-8. Materials to be Submitted to the Jury; Note-taking; Juror Questions

1:8-8. Materials to be Submitted to the Jury; Note-taking; Juror Questions

(a) Materials. The jury may take into the jury room the exhibits received in evidence, and if the court so directs in a civil action, a list of the claims made by the parties and of the defenses to such claims, a list of the various items of damage upon which proof was submitted at the trial and a list of the verdicts that may be properly found by the jury. Any such list may be prepared by an attorney or the court, but before delivery to the jury, it shall be submitted to all parties. The court, in its discretion, may submit a copy of all or part of its instructions to the jury for its consideration in the jury room. The court may also, in its discretion and at such time and in such format as it shall determine, permit the submission to the jury of individual copies of any exhibit provided an appropriate request to employ that technique was made prior to trial on notice to all parties and provided further that the court finds that no party will be unduly prejudiced by the procedure.

(b) Juror Note-taking. Prior to opening statements, the attorneys or any party may request that the jury be permitted to take notes during the trial or portion thereof, including opening and closing statements. If the court determines to permit note-taking after all parties have had an opportunity to be heard, it shall provide the jurors with note-taking materials and shall take such steps as will ensure the security and confidentiality of each juror's notes.

(c) Juror Questions. Prior to the commencement of the voir dire of prospective jurors in a civil action, the court shall determine whether to allow jurors to propose questions to be asked of the witnesses. The court shall make its determination after the parties have been given an opportunity to address the issue, but they need not consent. If the court determines to permit jurors to submit proposed questions, it shall explain to the jury in its opening remarks that subject to the rules of evidence and the court's discretion, questions by the jurors will be allowed for the purpose of clarifying the testimony of a witness. The jurors' questions shall be submitted to the court in writing at the conclusion of the testimony of each witness and before the witness is excused. The court, with counsel, shall review the questions out of the presence of the jury. Counsel shall state on the record any objections they may have, and the court shall rule on the permissibility of each question. The witness shall then be recalled, and the court shall ask the witness those questions ruled permissible. Counsel shall, on request, be permitted to reopen direct and cross-examination to respond to the jurors' questions and the witness's answers. A witness who has been excused shall not be recalled to respond to juror questions unless all counsel and the court agree or unless the court otherwise orders for good cause shown.

Court Rule 1:8-7. Requests to Charge the Jury

1:8-7. Requests to Charge the Jury

(a) Generally. Either within the time provided by R. 4:25-7 or thereafter but before the close of the evidence, as to issues not anticipated prior to trial, any party may submit written requests that the court instruct the jury on the law as set forth in the requests. The requests shall make specific reference to the Model Civil Jury Charges, if applicable, or to applicable law. Copies of the requests shall be furnished all parties at the time they are submitted to the court. The court shall, on the record, rule on the requests prior to closing arguments to the jury. A verbatim record shall be made of any charge conference the court holds. Objections to the instructions to the jury shall be in accordance with R. 1:7-2.

(b) In Criminal Cases. Prior to closing arguments, the court shall hold a charge conference on the record in all criminal cases. At the conference the court shall advise counsel of the offenses, defenses and other legal issues to be charged and shall rule on requests made by counsel.

Court Rule 1:8-5.1:8-6. Sequestration of Juries

1:8-6. Sequestration of Juries

(a) Prior to Instructing of Jury. The jury shall not be sequestered in any action, civil or criminal, prior to the instructing of the jury by the court, unless the court, in its discretion so orders on its finding that there are extraordinary circumstances requiring sequestration for the protection of the jurors or in the interests of justice.

(b) Following Instructing of Jury. Following the instructing of the jury by the court and during the course of deliberations, the court may, in its discretion, in both civil and criminal actions, permit the dispersal of the jury for the night, for meals, and during other authorized intermissions in the deliberations.

Court Rule 1:8-5. Availability of Petit Jury List

1:8-5. Availability of Petit Jury List

The list of the general panel of petit jurors shall be made available by the clerk of the court to any party requesting the same at least ten days prior to the date fixed for trial. In cases where the death penalty may be imposed, the list shall be made available to any party requesting it at least twenty days prior to the date fixed for trial.

Sunday, September 06, 2009

State v Petit-John Law Division Judge must make own findings on guilt on trial de novo


DOCKET NO. A-6302-06T4







Submitted July 14, 2009 - Decided

Before Judges Grall and Gilroy.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Municipal Appeal No. 2006-070.

Kevin C. Watkins, attorney for appellant.

Paula T. Dow, Essex County Prosecutor,
attorney for respondent (Jennifer Fetterman,
Assistant Prosecutor, of counsel and on the

Following a trial de novo in the Law Division, defendant
was convicted of shoplifting, N.J.S.A. 2C:20-11b(2). Defendant
appeals; we affirm the conviction, but remand to the Law
Division for re-sentencing.
August 25, 2009
On appeal, defendant argues:






On November 22, 2003, Macy's department store Detective
Brooklyn Oliver charged defendant with shoplifting clothes and
other items of personalty from Macy's Millburn store, after
observing defendant and two other accomplices attempt to leave
the store without paying for the items. Specifically, Oliver
observed the three individuals remove price tickets and security
sensors from the clothing before placing the merchandise in
either defendant's purse or a shopping bag that defendant held
open to allow the merchandise to be hidden. On stopping
defendant and her cohorts outside of the store's entranceway,
Oliver found store merchandise in defendant's purse and in the
shopping bag she carried.
On that day, after defendant identified herself as Natasha
Charles, she was charged with the indictable offense of
shoplifting and released. The Essex County Prosecutor
downgraded the charge to a disorderly persons offense. However,
defendant failed to appear for trial in the municipal court. On
March 28, 2006, after defendant was apprehended, she was charged
by the Millburn Township Police Department with the disorderly
persons offense of hindering her own apprehension, N.J.S.A.
The matter was tried in the Millburn Township Municipal
Court. On September 12, 2006, the court found defendant guilty
of the shoplifting and hindering apprehension charges. On the
conviction for hindering apprehension, the court imposed a
$1,000 fine on defendant, together with appropriate penalties
and assessments. On the conviction for shoplifting, the court
sentenced defendant to ten hours of community service, a $500
fine, and restitution in the amount of $281. The court also
imposed all appropriate fines and penalties. Defendant

Although the order appealed from references this charge as
having been made under N.J.S.A. 2C:29-3(7), the complaint
summons indicates that the charge was made under N.J.S.A. 2C:29-
On March 28, 2007, the Law Division conducted a trial de
novo on the record, after which it reserved decision. On June
26, 2007, the Law Division issued a written decision, finding
defendant not guilty on the charge of hindering apprehension,
but guilty on the charge of shoplifting. In so doing, the court
The [c]ourt agrees with the [M]unicipal
[C]ourt's assessment of credibility, and
also finds that the State had proven beyond
a reasonable doubt that the evidence from
the record supports a finding that
[d]efendant committed the offense of
shoplifting. Because the findings are
supported by substantial credible evidence,
the [c]ourt affirms [d]efendant's
shoplifting conviction.

On the same day, the court entered an order affirming the
conviction for shoplifting, impliedly affirming the sentence
imposed by the Municipal Court thereon.
Appeals from the Municipal Court to the Law Division are de
novo. R. 3:23-8. The "function [of the trial judge] is to
determine the case completely anew on the record made in the
Municipal Court, giving due, although not necessarily
controlling, regard to the opportunity of the magistrate to
judge the credibility of the witnesses." State v. Johnson, 42
N.J. 146, 157 (1964). The trial judge must make his or her "own
findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App.
Div.), certif. denied, 95 N.J. 197 (1983). The trial judge's
function differs from this court's function. "His [or hers] is
not the appellate function governed by the substantial evidence
rule[,] but rather an independent fact-finding function . . . ."
Our scope of review is a limited one. "It is not our
function . . . to weigh the evidence anew and to make
independent findings of fact as if we were sitting in first
judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958).
"The test is 'whether the findings made [by the trial court]
could reasonably have been reached on sufficient[,] credible
evidence present in the record.'" State v. Barone, 147 N.J.
599, 615 (1997) (quoting Johnson, supra, 42 N.J. at 162)
(alteration in original). It is only when we are "thoroughly
satisfied that the finding is clearly a mistaken one and so
plainly unwarranted that the interests of justice demand
intervention and correction . . . [that we] should appraise the
record as if [we are] deciding the matter at inception and make
[our] own findings and conclusions." Johnson, supra, 42 N.J. at
162. However, "[a] trial court's interpretation of the law and
the legal consequences that flow from established facts are not
entitled to any special deference." Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The Law Division incorrectly expressed its determination
as that of "affirming" the decision of the Municipal Court,
whereas that court's function on a trial de novo is to make its
own findings of fact and determination of guilt. Nonetheless,
the record contains overwhelming evidence of defendant's guilt.
However, the same cannot be said as to the Law Division
implicitly affirming the Municipal Court's sentence. Pursuant
to Rule 3:23-8(e), "[w]hen a Law Division judge conducts a trial
de novo and finds a defendant guilty[,] the sentence imposed by
the [M]unicipal [C]ourt may not be affirmed. Rather, the judge
must 'exercise . . . independent judgment . . . in the matter of
sentence.'" State v. Russo, 328 N.J. Super. 181, 186 n.3 (App.
Div.) (quoting State v. States, 44 N.J. 285, 293 (1965)),
certif. denied, 165 N.J. 134 (2000).
Accordingly, we affirm the conviction and remand for re-

State v Wallace- Denial of Suppression Motion remanded


DOCKET NO. A-4239-06T4







Submitted May 12, 2009 – Decided

Before Judges Wefing and Parker.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.

Yvonne Smith Segars, Public Defender,
attorney for appellant (Arthur J. Owens,
Designated Counsel, on the briefs).

Anne Milgram, Attorney General, attorney for
respondent (Hillary Horton, Deputy Attorney
General, of counsel and on the brief).


Defendant Shannon Wallace appeals from an order entered
after a remand proceeding on April 6, 2005 denying his motion to
suppress evidence seized without a warrant. After denial of his
original motion on May 14, 2002, defendant was tried by a jury
and found guilty of third degree possession of a controlled
August 25, 2009
dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third degree
possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and -
5b(3); third degree possession with intent to distribute in a
school zone, N.J.S.A. 2C:35-7; two counts of third degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5b and -5d;
second degree possession of a weapon while committing a drug
crime, N.J.S.A. 2C:39-4.1a; fourth degree possession of a
prohibited weapon, N.J.S.A. 2C:39-3d; and second degree
possession of a weapon by a prohibited person, N.J.S.A. 2C:39-
7b. After the appropriate mergers, defendant was sentenced to an
aggregate term of twenty years subject to ten years parole
These charges arose out of defendant's arrest on January
22, 2001 when Parole Officer Thomas High arrived at a residence
he knew defendant occupied. Along with eight other parole
officers, High intended to serve an arrest warrant for violation
of parole. The residence was within one thousand feet of a
High had supervised defendant since 2000 and had made
numerous "home visits" to this address. High knew from past
visits that defendant occupied a second floor bedroom from which
High saw him "peek out" on January 22, 2001. When the officers
entered the house, they went to the second floor bedroom, where
one of the officers saw a clip of eight vials of suspected
cocaine on a dresser. A drawer in the dresser was partially
opened and contained a black semi-automatic handgun. Other
officers found a bundle of drugs and a knife in the bedroom.
Under the mattress, along with other mail addressed to
defendant, they found a certificate from the Parole Department
addressed to defendant indicating that he had completed a
ninety-day reporting program. One thousand empty vials were
found under the bed.
Defendant was not in the second floor bedroom when the
officers entered it. One of the officers went to the attic and
found defendant hiding behind a clothes rack. When defendant was
seized and arrested, he did not have any shoes on. His
girlfriend, who was present at the time, indicated to the
officers that defendant's shoes were in the bedroom closet. His
work boots were retrieved from that closet.
After hearing the testimony at the suppression hearing, the
motion judge found that the officers were authorized to enter
the home and the bedroom pursuant to the warrant, regardless of
whether that was defendant's official address, because they had
seen defendant inside the residence on the date the warrant was
served and High had previously made "home visits" to this
His motion to suppress having been denied, defendant
proceeded to trial. The trial judge determined that all of the
evidence seized was admissible under the plain view doctrine,
including the evidence found under the bed and mattress.
Defendant appealed his conviction and on October 22, 2004,
we remanded the matter for a hearing for the trial judge to
explain the rationale for admitting into evidence the non-plain
view evidence – specifically, the one thousand vials found under
the bed and the paperwork under the mattress. State v. Wallace,
No. A-6001-02 (App. Div. Oct. 22, 2004) (slip op. at 11-12).
A remand hearing was conducted on March 17, 2005 by the
judge who had denied defendant's pre-trial suppression motion,
rather than the trial judge. The remand judge rendered a
decision on the record of that date in which he reviewed the
testimony and the evidence presented at the suppression hearing
and the applicable case law. The remand judge concluded that the
continuation of the search beyond the plain view evidence was
valid because "[i]t started with plain view, exigent
circumstance – under exigent circumstances, hot pursuit, valid
arrest warrant, and what they had found in plain view which
indicated the further dangerousness of the situation."
In this appeal, defendant argues:





Defendant contends that the trial court did not comply with
our instructions on the remand hearing. We agree. The remand
hearing was not conducted by the same judge who tried the case.
Thus, the judge who heard the matter on remand could not have
been familiar with the officers' testimony at trial and could
not have been aware that certain crucial trial testimony
differed from the testimony given at the suppression hearing.
At trial, Parole Officer Russo testified that when he moved
the bed and lifted the mattress, he found defendant's paperwork
and the additional one thousand empty vials. He also testified
that defendant had already been arrested and secured at the time
he looked under the mattress and the bed. Russo's trial
testimony was contrary to other testimony during the suppression
hearing that the evidence under the mattress and the bed was
found while the officers were searching for defendant.
During the remand hearing, the trial judge stated:
The only issue before this [c]ourt is
whether the search by Officer Russo under
the mattress which [uncovered] a box of
empty vials and paperwork was lawful in the
event that the search is not supported by a
valid warrant . . . . The State has the
burden to demonstrate that the search falls
within one of the exceptions to the warrant
requirement. The State must prove by a
preponderance of the evidence [that] there
were no constitutional violations. State v.
Wilson, 178 N.J. 7 (2003).

The remand judge determined that since the officers were on
the premises legally pursuant to a valid warrant, the search
under the bed and the mattress occurred pursuant to the
officers' looking for defendant. Because the remand judge
reviewed only the suppression hearing testimony and did not
consider the contrary trial testimony, the finding on remand
that the vials and paperwork were located during the search for
defendant is not supported by the substantial credible evidence.
Defendant was charged with possession based upon the
paperwork found under the mattress. He was charged with intent
to distribute based upon the thousand vials seized from under
the bed. Given these circumstances and the divergence of Russo's
trial testimony from the testimony given at the suppression
hearing, we are constrained to remand once again for a further
hearing – this time by the trial judge – to determine whether
the items seized from under the mattress and the bed were
admissible at trial.
We decline to address defendant's ineffective assistance of
counsel argument because it is more appropriately left for a
petition for post-conviction relief. State v. Preciose, 129 N.J.
451, 460-61 (1992).
Reversed and remanded for further proceedings consistent
with this opinion and our opinion rendered on October 22, 2004.
We do not retain jurisdiction.

State v Torres State barred from prosecuting old tickets


DOCKET NO. A-5585-07T4






Submitted May 5, 2009 - Decided

Before Judges Skillman and Collester.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Municipal Appeal
No. 0012-08.

Jacobs and Barbone, attorneys for appellant
(Louis M. Barbone, of counsel and on the

Theodore F. L. Housel, Atlantic County
Prosecutor, attorney for respondent (James
F. Smith, Assistant Prosecutor, of counsel
and on the brief).


After review de novo on the record, the Law Division judge
denied defendant Kathryn Torres’ motion to dismiss motor vehicle
charges of failure to stop at a stop sign, N.J.S.A. 39:4-144,
running a red light, N.J.S.A. 39:4-81, and reckless driving,
August 24, 2009
N.J.S.A. 39:4-96. Based on the municipal court record the judge
found defendant guilty of these offenses as well as an amended
charge of failure to produce a driver’s license, N.J.S.A. 39:3-
29. Following sentence, defendant filed a notice of appeal and
sets forth the following arguments:


The motor vehicle charges as well as criminal complaints
were the result of an incident on May 3, 2002. On June 5, 2002,
an indictment was returned against defendant charging her with
second-degree eluding a police officer and creating a risk of
injury or death, contrary to N.J.S.A. 2C:29-2(b) (count one);
third-degree resisting arrest by threats or physical force
against Detective Sergeant Love, contrary to N.J.S.A. 2C:29-
2(a)(1) (count two); fourth-degree resisting arrest by flight
from Officer Mary Grace Ingram, contrary to N.J.S.A. 2C:29-
2(a)(3) (count three); third-degree aggravated assault on police
officer Detective Ingram, contrary to N.J.S.A. 2C:29-1(b)(5)
(count four); fourth-degree obstructing administration of the
law, contrary to N.J.S.A. 2C:29-1 (count five); and third-degree
resisting arrest by threats or force against Detective Ingram,
contrary to N.J.S.A. 2C:29-2(a)(1) (count six). The motor
vehicle charges were stayed pending resolution of the
The criminal case was called for trial on February 9, 2004,
but the jury panel was exhausted during the course of voir dire
examination. On February 17, 2004, a jury was impaneled and
sworn. Prior to opening statements the next day, the court
found discovery violations by the State and sua sponte declared
a mistrial. Defendant then filed a motion on February 23, 2004
to dismiss the indictment and bar retrial on grounds of double
jeopardy. On April 27, 2004, the Law Division judge granted the
motion and issued an order which read in pertinent part as
[T]he defendant having filed a motion to
dismiss the indictment and bar retrial on
double jeopardy grounds on February 23,
2004, and the court having ordered the
conduct of a plenary hearing for the purpose
of determining whether sanctions would be
imposed against the Atlantic County
prosecutor and/or the Atlantic City Police
Department, said hearing, initially ordered
by the court on the date of mistrial,
namely, February 18, but thereafter modified
by the court’s written revised order of
March 4, 2004, and the defendants having
filed additional motions with regard to
production of discovery, and the court
having reviewed all moving in opposition
briefs of the parties, and having further
convened a plenary hearing on April 24, 2004
when the testimony of Det. Sgt. Love was
taken and the court having entertained oral
argument of all counsel, and the court
having further made specific findings of
fact of law with regard to the circumstances
occurring before and during trial, and the
court intending to incorporate all of its
factual and legal findings on the record
from February 21, 2004, and no cause
appearing to the contrary,

It is therefore on the 27th day of April,

Ordered and adjudged that Indictment No. 2-
06-1135-B be and hereby is dismissed on
double jeopardy grounds, thereby barring any
retrial of defendants Kathryn Torres and
Tashiva Torres, and that no sanctions be
imposed upon either the State of NJ (pros’s
office) or Atlantic City in view of the

Neither the State nor defendant has supplied to us a
transcript of the plenary hearing of April 21, 2004 or any
findings of fact or law by the trial judge following the plenary
hearing. It is undisputed that there was no disposition on the
motor vehicle charges at the hearing.
In May 2007, more than three years after the indictment was
dismissed, six motor vehicle summonses were returned to the
Atlantic City Municipal Court for trial. No reason or
explanation was given for the extensive delay in prosecution of
the Title 39 charges.
Following trial in the Atlantic City Municipal Court, the
defendant was acquitted of driving while suspended, but found
guilty of reckless driving, failure to stop at a stop sign,
failure to stop at a red light, failure to wear a seat belt and
driving as an unlicensed driver. On appeal the Law Division
judge held that prosecution on the motor vehicle offenses was
not barred on constitutional double jeopardy grounds or by
N.J.S.A. 2C:1-10. This appeal followed.
The Law Division judge made the following factual findings
based on the record of the Atlantic City Municipal Court:
On May 3, 2002, Sergeant Love, along with
Detectives Barber, Mason and Cooke, were
conducting a controlled undercover buy in
the back Maryland section of Atlantic City.
At approximately 10:30 pm the Defendant
approached the undercover vehicle in her
vehicle and asked the officers, "Can I help
you?" Sgt. Love explained to the Defendant
that they were officers conducting an
investigation. The Defendant then asked to
see identification and Sgt. Love pulled his
badge out from under his sweatshirt. When
the Defendant stated that she could not see
the badge, Sgt. Love exited his vehicle and
approached the driver's area, and again Sgt.
Love explained that they were involved in an
investigation and could not reveal the
details. The Defendant then became
belligerent and Det. Barber came over to
intercede. The Defendant told Det. Barber
that she was the site manager for the
apartments on that block and that the
officers needed to get off her property.
Det. Barber explained that they were on a
public street and therefore allowed to be
there. Det. Barber then asked to see the
Defendant's license and registration (which
the Defendant refused to produce), as well
as to fasten her seatbelt.

The Defendant continued to refuse so Det.
Barber then told the Defendant that she was
being placed under arrest. At the same
time, Officer Cooke had asked the passenger
to place her seatbelt on as well. In
response to Ofr. Cooke's request, the
passenger window went up and when Ofr. Cooke
tried to open the door, the passenger
slammed the door shut, locked it, and turned
her back to Ofr. Cooke. At that point, Sgt.
Love asked Ofr. Cooke for her assistance,
and Ofr. Cooke began to walk in front of the
Defendant's vehicle. The Defendant then
took off striking Ofr. Cooke with her
vehicle. Ofr. Cooke landed on the hood of
the Defendant's car and rolled off injuring
her right side from below her arms to midway
down her thigh. After taking off, the
Defendant ran the stop sign (where she made
a right hand turn) at Sewell and Maryland
Avenues. The detectives chased after her in
their vehicle, activating their lights and
sirens when they turned onto Maryland
Avenue. The detectives then observed the
Defendant go around a car legally stopped at
a red light at Maryland Ave. and Route 30
(into oncoming traffic) and run the red
light. The Defendant eventually pulled over
in the middle of the block between Route 30
and Mediterranean Avenue. The detectives
pulled behind the Defendant and Det. Barber
approached the car and ordered the Defendant
to exit the vehicle telling her again that
she was under arrest. At this time, the
Defendant again took off and proceeded
through the red light at Maryland and
Mediterranean Avenues, eventually coming to
a stop as marked cars approached the area.
The Defendant was arrested.

The Double Jeopardy Clause of the Fifth Amendment provides,
“Nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb[.]” U.S. Const. Amend. V.
The analogous New Jersey constitutional provision states: “No
person shall, after acquittal, be tried for the same offense.”
N.J. Const. Art. I, Par. 11. New Jersey courts have
consistently interpreted the protections accorded by the State
Constitution as co-extensive with the Fifth Amendment. State v.
DeLuca, 108 N.J. 98, 102, cert. denied, 484 U.S. 944, 108 S. Ct.
331, 98 L. Ed. 2d 358 (1987). The Double Jeopardy Clause
protects against a second prosecution for the same offense after
acquittal or conviction and from multiple punishments for the
same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89
S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969); DeLuca,
supra, 108 N.J. at 102.
The constitutional protection against double jeopardy is
applicable to motor vehicle violations tried in the municipal
court. State v. Dively, 92 N.J. 573, 586 (1982). In a jury
trial, jeopardy attaches after the jury is impaneled and sworn.
State v. Allah, 170 N.J. 269, 279 (2002); State v. Lynch, 79
N.J. 327, 341 (1978); State v. Farmer, 48 N.J. 145, 169 (1966),
cert. denied, 386 U.S. 991, 87, S. Ct. 1305, 18 L. Ed. 2d 335
(1967). Improper termination of proceedings after jeopardy
attaches bars retrial. Allah, supra, 170 N.J. at 280; State v.
Loyal, 164 N.J. 418, 435 (2000).
Unless a mistrial is granted for reasons of manifest
necessity or based on sufficient legal grounds, the termination
is improper and subsequent prosecution is barred. Allah, supra,
170 N.J. at 285; State v. Rechtscheffer, 70 N.J. 395, 410-11
(1976). Here, the trial judge dismissed the criminal indictment
on defendant's motion as a sanction for the State's failure to
adhere to its discovery obligation. The State did not appeal
the order dismissing the indictable charges. The issue on
appeal is whether the State is barred from prosecuting motor
vehicle offenses arising out of the same incident which gave
rise to the criminal indictment.
In State v. DeLuca, supra, 108 N.J. 98, the defendant
struck and killed a pedestrian while driving with a blood
alcohol content well in excess of the minimum for proof of
driving under the influence. He was acquitted of the indictable
charge of death-by-auto and later moved for dismissal of the DWI
prosecution. DeLuca concluded that the same elements did not
comprise both crimes so that the municipal court prosecution was
not barred by the test of Blockburger v. United States, 284 U.S.
299, 394, 52 S. Ct. 180, 181-82, 76 L. Ed. 2d 306, 309 (1932).
The Court then turned to the “same evidence test” enunciated in
Illinois v. Vitale, 447 U.S. 410, 420, 100 S. Ct. 2260, 2267, 65
L. Ed. 2d 288, 238 (1980), and stated:
The question . . . [is] whether the evidence
actually used to establish guilt in the
first prosecution is identical to that which
will be used in the second prosecution. If
the evidence used in the first prosecution
is the sole evidence in the second, the
prosecution of the second offense is barred.

[DeLuca, supra, 108 N.J. at 107.]

The Supreme Court remanded for the trial court to review
the proofs, stating: “[I]f the State relied solely on
intoxication as evidence of recklessness in the death-by-auto
case, double jeopardy would bar the DWI prosecution. If,
however, other evidence was adduced, the DWI prosecution will
not be barred.” Id. at 109.
We first consider the same elements test, which requires
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. State v. Yoskowitz, 116 N.J. 679, 689 (1989)
(quoting Blockburger, supra, 284 U.S. at 303-04, 52 S. Ct. at
181-82, 76 L. Ed. 2d at 309).
In the instant case, application of the same elements test
does not result in double jeopardy prohibiting the prosecution
of the motor vehicle offenses. The elements of eluding a police
officer, resisting arrest, and assault upon a law enforcement
officer contained elements that are clearly distinctive from the
charged motor vehicle offenses, the most obvious being that the
indictable charges relate to offenses solely against police
Application of the same evidence test is complicated by the
fact that the criminal trial judge dismissed the indictment
prior to the taking of any testimony. Accordingly, the
defendant cannot demonstrate "that the first prosecution
encompasses all the facts utilized in the second." State v.
Colon, 374 N.J. Super. 199, 218 (App. Div. 2005). See also
State v. Ebron, 61 N.J. 207, 215-17 (1972).
The State need not have produced evidence of the violation
of motor vehicle statutes for conviction of the indictable
charges. Since eluding a police officer, resisting arrest, or
assault on a police officer does not encompass proof of
careless driving or running a red light or a stop sign, the
State would not "rely solely" on evidence of motor vehicle
violations, and since "other evidence could be adduced," the
motor vehicle prosecution was not barred under the same evidence
test. DeLuca, supra, 108 N.J. at 109.
Nonetheless, we find that consideration of fundamental
fairness mandated dismissal of the motor vehicle charges. The
fundamental fairness doctrine in the context of double jeopardy
is based on the reasonable expectations of the parties. State
v. Yoskowitz, supra, 116 N.J. at 705; State v. Tropea, 78 N.J.
309, 316 (1978); see also State v. Gregory, 66 N.J. 510, 522
(1975); State v. Tsoi, 217 N.J. Super. 290, 246 (App. Div.
1987). As stated by our Supreme Court:
[I]n applying the prohibition against double
jeopardy, the emphasis should be on
underlying policies rather than technisms.
The primary considerations should be
fairness and fulfillment of reasonable
expectations in the light of the
constitutional and common law goals.

[State v. Currie, 41 N.J. 531, 539 (1964).]

In State v. Tropea, supra, 78 N.J. at 309, the defendant's
conviction for speeding was reversed because the State failed to
prove that the speed limit in the area of the alleged infraction
was twenty-five miles an hour. The defendant argued that when a
conviction was overturned for failure of proof at trial, a
remand for a new trial violated the prohibition against double
jeopardy. Rather than decide the constitutional issue, the
Court stated per Justice Clifford:
In the instant case, we need not resolve the
question of whether the solemn
constitutional provision against exposing a
criminal defendant to double jeopardy is
brought to bear on motor vehicle violations
generally or on a speeding charge
specifically. For constitutional compulsion
aside, it is plain to us that considerations
of fundamental fairness militate against any
retrial in this case.

. . . .

While a defendant subjected to multiple
speeding prosecutions may very well face
less embarrassment, expense and anxiety,
than are encountered by those faced with
criminal prosecutions, nevertheless, the
burdens to which he is subjected are not
mere trifles. Under the circumstances of
this case, a rerun at the trial level would
result in unwarranted harassment and should
be avoided if the interest of justice will
not otherwise be disserved.

[Id. at 315-16.]

Prosecution of these motor vehicle offenses more than three
years after the disposition of contemporaneous criminal charges
and more than six years after the issuance of traffic summonses
conflicts with fundamental fairness.
Accordingly, we reverse and remand to the Atlantic City
Municipal Court for dismissal of the motor vehicle summonses.