NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5585-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KATHRYN TORRES,
Defendant-Appellant.
____________________________
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
brief).
Theodore F. L. Housel, Atlantic County
Prosecutor, attorney for respondent (James
F. Smith, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
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
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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:
POINT I – THE STATE WAS BARRED FROM
PROSECUTING THE DEFENDANT ON THE MOTOR
VEHICLE DRIVING OFFENSES BY VIRTUE OF
DEFENDANT’S CONSTITUTIONAL PROTECTION
AGAINST DOUBLE JEOPARDY AS WELL AS STATE
LAW.
POINT II – THE PROSECUTION ON THE CHARGE OF
RECKLESS DRIVING WAS BARRED BY N.J.S.A.
2C:1-10.
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
A-5585-07T4
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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
indictment.
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
follows:
[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
A-5585-07T4
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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,
2004,
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
dismissal.
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
A-5585-07T4
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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.
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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.
A-5585-07T4
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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).
A-5585-07T4
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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:
A-5585-07T4
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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
A-5585-07T4
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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
officers.
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
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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.
A-5585-07T4
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. . . .
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.
