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DOCKET NO. A-2692-12T1







October 14, 2014


Submitted September 9, 2014 Decided

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).


Defendant appeals from his conviction after a plea to possession of a controlled dangerous substance (CDS) with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7. Defendant argues that the court erred by denying his motion to dismiss the indictment on double jeopardy grounds. Because the issues presented raised questions unanswered by the record, we remand for further proceedings.

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:35-5b(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:35-10a. 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:35-5b(12) and third degree possession of a CDS with intent to distribute within 1000 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 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.

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 Yes, sir.

Q Do you wish to have an attorney in this matter?

A No, sir.

Q Do you wish to have a trial?

A No, sir.

Q Do you want to plead guilty today?

A Yes, sir.

Q Are you pleading guilty because you are guilty?

A Yes, sir.

Q Are you doing it voluntarily?

A Yes, sir.

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.

Q Factual basis, plea, finding of guilty will be entered. $500 fine, $30 costs, $50 Violent Crime penalty, $75 safe neighborhood and street. 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. The court noted

So the proofs are going to be different in Superior Court. Proof of the proximity of the possession, vis-a-vis the school, is an essential element of the offense. That's the different evidence in the Superior Court action.

On April 9, 2012, defendant pled guilty to count two of the indictment. Pursuant to the plea bargain, he was sentenced to probation.2 This appeal, in which defendant reprises his double jeopardy argument, followed.

The United States Constitution 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. Our double jeopardy provision has consistently been interpreted to be co-extensive with the protections afforded by its federal counterpart, and protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. State v. Salter, 425 N.J. Super. 504, 517-18 (App. Div. 2012) (citations and internal quotation marks omitted).

The constitutional protection is also applicable to violations adjudicated in the municipal court. State v. Dively, 92 N.J. 573, 586-87 (1982); State v. Ebron, 61 N.J. 207, 215 (1972). Our courts have traditionally applied a more flexible "same evidence" test as opposed to the more restrictive "same elements" test, applied by the federal courts. See Salter, supra, 425 N.J. Super. at 518-19. As we explained in Salter, the longstanding rule for determining whether a subsequent prosecution is for the same offense is the test enunciated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). In applying Blockburger for determining whether there are two offenses or only one, a court must consider "whether each provision requires proof of an additional fact which the other does not." Id. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309.

In State v. DeLuca, 108 N.J. 98, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987), the defendant was indicted for death by auto after he struck and killed a pedestrian. At the time of the accident, the defendant had a blood alcohol content in excess of the legal limit. After he was acquitted of the indictable charge, defendant moved for dismissal of the DWI prosecution. We held that since the same elements did not comprise both crimes, the municipal court prosecution was not barred by the Blockburger test. That is, the indictable charge required proof of a death which was not required to prove drunk driving, and drunk driving required proof of intoxication, a fact not required to prove death by auto. DeLuca offered an expansive view of the test by reference to the "same evidence test" enunciated in Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980). We 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 same 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 (citation omitted.)]

The Court remanded for the trial court to review the proofs stating: "[I]f the State relied solely on intoxication for evidence of recklessness in the death-by-auto case, double jeopardy would bar the DWI prosecution. If, however, other evidence was adduced, DWI prosecution will not be barred." Id. at 109.

Here, the transcript of the municipal court proceeding commences with a recitation by the judge that defendant was charged with "loitering to possess marijuana" on October 15, 2010, at 27th and Washington Street in Camden. As noted, defendant was originally charged with possession of a CDS less than fifty grams arising out of his conduct on October 15, 2010. There is no indication in the record how, or under what circumstances, the original charge was amended. We are uninformed whether the amendment was the result of a charging decision initiated by the prosecutor or the result of a decision initiated by the court. The former procedure would be the ordinary practice. The latter procedure would be the exception, and arguably, "ultra vires" absent prosecutorial consent.3 In either case, it appears as if defendant played no role in the amendment.

The circumstances leading to the amendment and defendant's reasonable expectation in entering his guilty plea are critical to a determination whether "fairness and fulfillment" of reasonable expectations bars prosecution of the indictable charges. See State v. Currie, 41 N.J. 531, 539 (1964). Notably, our Supreme Court has held that where a lesser charge is an essential component of a greater offense, arising out of the same conduct, then conviction of the lesser bars subsequent prosecution of the greater crime. Dively, supra, 92 N.J. at 579. Dively noted that this proposition was developed and discussed at length by the Supreme Court in Blockburger. Whether an offense is an included offense of another charge requires a comparison of the statutory elements of each charge. Thus,

[a]n offense will be considered a lesser included offense in several circumstances. One is where the proof required to establish a greater offense is also sufficient to establish every element of a lesser offense. Another is where two offenses are the same but a lesser degree of culpability is required to establish the lesser offense.

[State v. Muniz, 228 N.J. Super. 492, 496 (App. Div.), certif. denied, 113 N.J. 359, certif. denied, 113 N.J. 658 (1988), rev'd on other grounds, 118 N.J. 319 (1990) (citations omitted).]

Here it cannot be disputed that the original "simple possession" charge is a lesser-included offense of the indictable charges. An analysis whether double jeopardy principles preclude conviction of the indictable charge is premised upon the charge for which defendant was convicted. The application of that analysis to the loitering charge could result in a finding of failure to satisfy the same element or same evidence tests; a result different than if defendant was convicted on the simple possession charge. This divergence of result, when combined with consideration of fairness, compels an inquiry whether the amended charge was with the knowledge, consent or actions of the prosecutor.

Defendant argues the indictment should have been dismissed on the basis of fundamental fairness. State v. Yoskowitz, 116 N.J. 679, 705 (1989); State v. Gregory, 66 N.J. 510, 521-22 (1975). Defendant's fundamental fairness argument is predicated upon his contention that he had a reasonable expectation that his guilty plea in municipal court resolved all pending criminal charges arising out of the same conduct. In State v. Colon, 374 N.J. Super. 199, 220-21 (App. Div. 2005), under a somewhat similar procedural fact pattern, we found no evidence supporting defendant's "reasonable expectations." Here, unlike Colon, defendant has presented a colorable basis to support his reasonable expectations. Defendant attempted to educate the municipal court judge, to no avail, that there were related proceedings in the Superior Court (". . . [T]hey got me going to Superior Court for this . . ."). This is in contrast to a defendant who provides "a misleading response" when queried by a judge regarding charges that were holding him. Colon, supra, 374 N.J. Super. at 220-21.

Upon remand, the court should conduct a hearing to determine how the amendment to the "loitering" charge occurred and whether the principles of fundamental fairness based upon defendant's reasonable expectations apply in this case.4 The hearing should be concluded and the judge's findings rendered within ninety days of today's decision.

Remanded. We retain jurisdiction.

1 During 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 incarcerated on an unrelated charge related to nonpayment of child support.

2 The conditional plea preserved defendant's right to appeal from the adverse determination of the pretrial motion, R. 3:9-3(f).

3 The State argues in its brief that the county prosecutor played no role nor had any notice or knowledge of the municipal court proceeding. While we have no reason to dispute this argument, it remains unclear whether a municipal prosecutor played a role in the charging determination. Each municipal prosecutor is the subordinate of the county prosecutor. State v. Holup, 253 N.J. Super. 320, 324-25 (App. Div. 1992). There is a direct line of authority. N.J.S.A. 2B:25-1 to -12 ("Municipal Prosecutor Act").

4 A review of the municipal court records from the date of the plea, including logs and tape recordings, may provide a source of information that resolves the area of inquiry relating to the amendment.