STATE OF NEW JERSEY IN THE INTEREST OF K.S.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY IN THE

INTEREST OF K.S.H., a minor.

________________________________________

June 16, 2015

Submitted May 11, 2015 Decided

Before Judges Guadagno and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket Nos. FJ-13-1474-13 and FJ-13-1475-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In April 2013, two juvenile delinquency complaints (JDC) were filed against K.S.H. The first charged that on November 6, 2012, K.S.H., then seventeen, possessed less than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(4). The second JDC charged that on November 7, 2012, K.S.H. resisted arrest, N.J.S.A. 2C:29-2(a)(1). Also pending at that time was a third JDC charging K.S.H. with obstruction, N.J.S.A. 2C:29-1(a).

Trial on the marijuana and resisting arrest charges occurred on September 5, 2013. Before trial began, the assistant prosecutor informed the court that the obstruction charge would not be heard on that date but would be disposed of at a later date.

At the conclusion of the trial, the judge first addressed the resisting arrest charge, but instead of referring to the resisting arrest statute, N.J.S.A. 2C:29-2, the judge quoted the obstruction statute, N.J.S.A. 2C:29-1(a), and erroneously stated that "[K.S.H. is] being charged . . . as a disorderly person[] under this [section]." He stated,

I find that the State under [N.J.S.A.] 2C:29-1(a) has carried their burden beyond a reasonable doubt that this that, at the very least, this was that [K.S.H.] was . . . preventing the officers from performing an official function by, at the very least, interference or obstacle. And both officers, there's no question that he knew that both were police officers, they both were wearing their uniforms. So I find that the State has carried their burden with respect to that charge.

The judge also concluded that the State proved that K.S.H. possessed marijuana.

On September 20, 2013, the judge sentenced K.S.H. to a concurrent one-year period of probation on the marijuana and resisting charges and imposed a six-month delay in permitting K.S.H. to obtain a driver's license. This appeal followed. In his merits brief, K.S.H. presented the following argument

point i

the trial court erred in finding that k.s.h. obstructed the administration of law under N.J.S.A.2C:29-1, when the complaint only charged him with resisting arrest under N.J.S.A.2C:29-2. (not raised below).

In a reply brief, K.S.H. raised the issue of double jeopardy for the first time

REPLY POINT I

THIS COURT MUST VACATE THE OBSTRUCTION ADJUDICATION SINCE THE JUVENILE WAS NEVER CHARGED WITH OBSTRUCTION IN THIS CASE, AND TO AVOID DOUBLE-JEOPARDY, THIS COURT MUST DISMISS THE RESISTING ARREST CHARGE AND NOT REMAND THE MATTER FOR A NEW ADJUDICATION.

The State concedes that a remand is required, but opposes vacating the guilty adjudication on the resisting arrest charge and maintains that we should simply allow the trial judge to address the "misstatement" made in his findings.

K.S.H. was charged in JDC 1475-13 with resisting arrest in that "on or about 11/7/2012 [at] 7:30 a.m. [he] did . . . purposely prevent or attempt to prevent J.J. and/or E.G., a law enforcement officer from effecting an arrest by flight." Although K.S.H. was charged in a separate complaint with obstruction, that charge was not before the court at the time.1 Although the judge adjudicated K.S.H. guilty of resisting, he relied on the wrong statute in doing so. This is not simply "an unintended, mistaken citation to a numerically adjacent statute," as claimed by the State, but a fundamental error where the judge's findings were premised on the wrong statute. Clearly, a retrial is required. See State v. Elders, 192 N.J. 224, 244 (2007) (explaining that a trial court's findings should be disturbed in the interests of justice when they are so clearly mistaken).

We reject K.S.H.'s claim, made for the first time in his reply brief, that a retrial will violate his Fifth Amendment rights and subject him to double jeopardy.2 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. New Jersey's constitutional bar against double jeopardy provides that "[n]o person shall, after acquittal, be tried for the same offense." N.J. Const. art. I, 11.

K.S.H. was charged with resisting arrest, the trial judge repeatedly indicated that he was trying the charge of resisting arrest, and the juvenile order of disposition (JOD) indicates a finding of guilty as to the resisting arrest charge. K.S.H. was not adjudicated of violating the obstruction statute at this trial, as he claims.3 Rather, he was adjudicated for resisting arrest, an adjudication he has succeeded in getting vacated on appeal because the court committed the error of making findings based on the wrong statute.

It has long been settled that "the Double Jeopardy Clause's general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction." Lockhart v. Nelson, 488 U.S. 33, 38, 109 S. Ct. 285, 289, 102 L. Ed. 2d 265, 272 (1988). It is a "venerable principle of double jeopardy jurisprudence that the successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, . . . poses no bar to further prosecution on the same charge." Montana v. Hall, 481 U.S. 400, 402, 107 S. Ct. 1825, 1826, 95 L. Ed. 2d 354, 359 (1987) (internal quotation marks and citation omitted).

The September 20, 2013 order is vacated as to the resisting arrest charge and that matter is remanded for further proceedings consistent with this opinion.4

Reversed.

1 After the adjudication of the resisting and marijuana charges, K.S.H. had a separate trial on the obstruction charge and was found guilty. K.S.H. appealed and on June 1, 2015, a different panel reversed that disposition. State ex rel K.S.H., No. A-2567-13 (App. Div. June 1, 2015).

2 Rule 2:6-2(a)(5) requires that an appellant's merits brief include "legal argument . . . which shall be divided, under appropriate point headings . . . into as many parts as there are points to be argued." As such, it is improper to raise an issue initially in a reply brief. State v. Lenihan, 219 N.J. 251, 265 (2014). In spite of this deficiency, we address this argument in the interests of justice. Otto v. Prudential Prop. & Cas. Ins. Co., 278 N.J. Super. 176, 181 (App. Div. 1994).

3 The September 20, 2013 JOD indicates that, at that time, the obstruction charge had not been resolved and was pending trial.

4 We note that K.S.H. was sentenced to a concurrent one-year period of probation on the marijuana and resisting charges, which presumably he has already served.