STATE OF NEW JERSEY v. KATHRYN TORRES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5585-07T45585-07T4

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, 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 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 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 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 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 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.

 

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A-5585-07T4

August 24, 2009