STATE OF NEW JERSEY v. JUDITH RUSSO
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0866-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUDITH RUSSO,
Defendant-Appellant.
______________________________
Argued January 30, 2018 – Decided May 22, 2018
Before Judges Fisher and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Sussex County, Municipal Appeal
No. 29-10-14.
George T. Daggett argued the cause for
appellant (Law Offices of George T. Daggett,
attorneys; George T. Daggett, on the brief).
Shaina Brenner, Assistant Prosecutor, argued
the cause for respondent (Francis A. Koch,
Sussex County Prosecutor, attorney; Shaina
Brenner, of counsel and on the brief).
PER CURIAM
Following a trial de novo before the Law Division, defendant
Judith Russo appeals her convictions for driving while intoxicated
(DWI),
N.J.S.A. 39:4-50, and refusal to submit to breath tests,
N.J.S.A. 39:4-50.2 (collectively, the charges). On appeal, she
argues:
POINT I
THE TESTIMONY OF DEFENDANT, HER EXPERTS AND
THE HOSPITAL RECORDS CLEARLY SUBSTANTIATE THE
DOCTRINE OF NECESSITY.
POINT II
THE CREDIBILITY FINDING BY THE COURT BELOW IS
FLAWED.
POINT III
THE DECISION OF THE COURT BELOW AS TO DOUBLE
JEOPARDY WAS INCORRECT.
POINT IV
THE COURT BELOW ERRED BY IGNORING THE PRESENCE
OF DOUBLE JEOPARDY.
POINT V
THIS CASE IS A CLASSIC EXAMPLE OF FAILURE TO
PROVIDE A SPEEDY TRIAL.
POINT VI
THE DECISION OF THE COURT BELOW ON OCTOBER 6,
2016 WAS A MISINTERPRETATION OF THE EVIDENCE
IN THIS CASE.
POINT VII
THE "NORMAL" STANDARD OF REVIEW IN CASES SUCH
AS THIS, SHOULD NOT APPLY TO THE INSTANT
MATTER.
2 A-0866-16T1
POINT VIII
DEFENDANT'S CONVICTION FOR REFUSING TO SUBMIT
TO THE ALCOTEST, PURSUANT TO
N.J.S.A. 39:4-
50.4, SHOULD BE REVERSED AND DISMISSED.
We find defendant's claims have no merit and for the reasons that
follow, affirm the trial judge's sound decision.
I.
We summarize the following facts and procedural backdrop to
the matter before us. On September 22, 2012, defendant and a male
friend dined together at a restaurant where she had two martinis.
At some point, the friend gave defendant a prescription bottle of
Nucynta to hold in her pocketbook for him. After dinner, she
drove her friend to his house because he did not have a car or
license. Shortly thereafter, Hardyston Township police officers
arrived in response to a noise complaint. After the friend
identified himself, the police took him into custody because of
an outstanding arrest warrant. Before he was taken away, he told
defendant she could stay overnight because she had been drinking.
Responding to defendant's inquiry, the police advised her that she
could not post bail that evening to release her friend because
there was no bail condition on the warrant. According to
defendant, after the police left, she felt a panic attack and
thinking she was taking four Xanax, she instead took her friend's
3 A-0866-16T1
Nucynta. Upon realizing she took the Nucynta, she claims that she
decided to drive to the police station – despite not knowing where
she was – for help.
Approximately twenty-five minutes later, Detective Michael
Masters saw defendant double-park her car in front of the police
station, and for no apparent reason she automatically opened her
trunk prior to exiting the car. Staggering towards him, Masters
testified that she stated that she was there to pick up her friend.
Due to her erratic behavior, Masters administered field sobriety
tests to defendant, which was recorded on a motor vehicle recording
(MVR) system. When she failed the tests, she was arrested and
directed to take a breathalyzer exam. She refused, indicating
that she would be willing to give a blood sample because she was
on prescribed medication for a brain tumor. While in custody,
defendant fell asleep, and sensing she needed medical attention,
Masters called an ambulance to take her to the hospital. There,
defendant was diagnosed with suffering from a drug overdose; she
tested positive for amphetamines and methadone.1 She was issued
summonses for DWI, careless driving, and refusal to submit to
breath tests.
1
Nucynta is a form of methadone.
4 A-0866-16T1
About a month later, a pre-trial conference was held at the
Hardyston Township Municipal Court. Because defendant requested
additional discovery regarding her friend's arrest, trial was not
scheduled until June 2013. Prior to and after the initial trial
date, defendant sought a series of adjournments on May 24, June
14, July 11, and July 26, which were all granted. Further, due
to defense counsel's unavailability, the trial could not be held
in August and September.
On November 14, defendant filed a motion in Hardyston
Municipal Court to change venue because she had a pending DWI
charge (the Ogdensburg charge).2 If found guilty, it would be her
second DWI conviction. The motion was granted in February 2014;
the charges were transferred to Byram Municipal Court. Yet, due
to a conflict of interest, the matter was transferred again, this
time to Green Township Municipal Court. Trial was scheduled for
March 5, but was adjourned because of defendant's pending speedy
trial motion. Six weeks later, the motion was denied; the judge
explained from the bench that the delays were reasonable and in
accord with State v. Detrick,
192 N.J. Super. 424 (App. Div. 1983).
2
The charge issued on May 6, 2011, was originally set for trial
in Ogdensburg Municipal Court, but was later transferred to
Franklin Township Municipal Court and then to Hardyston Municipal
Court.
5 A-0866-16T1
The next trial date, July 14, was also adjourned when a
defense witness was unavailable. Eventually tried on August 6,
the municipal court judge reserved decision. On October 1, the
judge issued his oral decision finding defendant guilty of DWI and
refusal to submit to breath tests.3 Sentencing, however, was
postponed because of the pending Ogdensburg charge.
Defendant then filed a motion for reconsideration; asserting
the defense of necessity because she claimed that she drove to the
police station for help upon realizing she took her friend's
medication. On November 5, after hearing argument, the judge
denied the motion. During a subsequent colloquy between counsel
and the judge, it was revealed that the Ogdensburg charge had been
resolved two weeks earlier when defendant pled guilty to the
offense of reckless driving and the DWI charge was dismissed.4
Because defendant was not present, sentencing was adjourned for
two weeks when defendant was sentenced as a second DWI offender.
3
Defendant was found not guilty of careless driving.
4
Defendant's brief states the Ogdensburg charge was "finally
concluded on December 3, 2013," but there is no corresponding copy
of the order or other document in her appendix confirming that
date. And based on the municipal court judge's statement on
October 1, 2014 – without objection by either party – that he
would delay sentencing until the Ogdensburg charge was resolved,
and the subsequent noted colloquy on November 5, 2014, the December
3, 2013 date is apparently incorrect.
6 A-0866-16T1
The judge granted only a stay of the jail term, not the license
suspension nor payment of fines and penalties.
Defendant filed a trial de novo appeal to the Law Division.
After a series of adjournments due to a delay in receiving the
transcripts of the municipal court proceedings, as well as defense
counsel's unavailability on two occasions, the appeal was heard
and denied on July 17, 2015. The trial court found there was
credible evidence beyond a reasonable doubt that defendant was
guilty of the charges. The court rejected defendant's speedy
trial claim on the basis that the delays in the municipal court
trial were due to defendant and the State, and did not violate
principles of speedy trial.
Defendant filed a notice of appeal with our court on August
7, 2015. However, with the State's consent, on February 9, 2016,
we granted defendant's motion to vacate her conviction and to
remand to the Law Division for a new trial de novo because
defendant's hospital medical records and pill bottle evidence from
the municipal court trial were never transmitted to the Law
Division. Additionally, emergent relief was granted to stay her
sentence.
A new trial de novo was conducted but the outcome did not
change. On October 28, 2016, the same court issued an order
finding that there was no violation of defendant's speedy trial
7 A-0866-16T1
rights and rejected defendant's contention that a second trial de
novo constituted double jeopardy.5 The request to stay was
granted. This appeal followed.
II.
In our review of the decision on a municipal appeal, "[w]e
review the action of the Law Division, not the municipal court."
State v. Robertson,
438 N.J. Super. 47, 64 (App. Div. 2014). We
consider "whether the findings made could reasonably have been
reached on sufficient credible evidence present in the record."
State v. Stas,
212 N.J. 37, 49 (2012) (quoting State v. Locurto,
157 N.J. 463, 471 (1999)). "Unlike the Law Division, which
conducts a trial de novo on the record, Rule 3:23-8(a), we do not
independently assess the evidence." State v. Gibson,
429 N.J.
Super. 456, 463 (App. Div. 2013) (citing Locurto,
157 N.J. at
471), rev'd on other grounds,
219 N.J. 227 (2014). We defer to
the trial judge's findings of fact, but "no such deference is owed
to the Law Division or the municipal court with respect to legal
determinations or conclusions reached on the basis of the facts."
Stas,
212 N.J. at 49 (citing State v. Handy,
206 N.J. 39, 45
(2011)) (stating "appellate review of legal determinations is
plenary").
5
The Law Division granted defendant's request for stay.
8 A-0866-16T1
With this in mind, we first address defendant's claim in
Point V that her conviction should be vacated because the
approximately twenty-six month delay between her arrest –
September 2011 – and the sentencing by the municipal court judge
– November 2014 – violated her right to a speedy trial. She argues
the municipal court should not have delayed her trial to await the
outcome of the Ogdensburg charge; and the State and the Law
Division caused an inordinate delay when the initial trial de novo
was decided without the evidence of her medical records, which
resulted in a remand.
"The right to a speedy trial is guaranteed by the Sixth
Amendment to the United States Constitution and imposed on the
states by the Due Process Clause of the Fourteenth Amendment."
State v. Tsetsekas,
411 N.J. Super. 1, 8 (App. Div. 2009) (citing
Klopfer v. North Carolina,
386 U.S. 213, 222-23 (1967)). "The
constitutional right . . . attaches upon defendant's arrest."
Ibid. (alteration in the original) (quoting State v. Fulford,
349 N.J. Super. 183, 190 (App. Div. 2002)). Since it is the State's
duty to promptly bring a case to trial, "[a]s a matter of
fundamental fairness," the State must avoid "excessive delay in
completing a prosecution," or risk violating "defendant's
constitutional right to speedy trial." Ibid.
9 A-0866-16T1
The determination of whether a defendant's rights have been
violated is based upon the four-factor balancing analysis set
forth in Barker v. Wingo,
407 U.S. 514, 530 (1972). See State v.
Cahill,
213 N.J. 253, 258 (2013) ("We conclude that the four-
factor balancing analysis of Barker v. Wingo,
407 U.S. 514 (1972),
remains the governing standard to evaluate claims of a denial of
the federal and state constitutional right to a speedy trial in
all criminal and quasi-criminal matters."). The four non-
exclusive factors that a court should evaluate: (1) length of the
delay, (2) reason for the delay, (3) assertion of the right by a
defendant, and (4) prejudice to the defendant. Id. at 264 (citing
Barker,
407 U.S. at 530). No one factor is determinative of
whether a right to a speedy trial has been violated. Id. at 267
(citing Barker,
407 U.S. at 533).
"These four [Barker] factors are . . . applied when [a]
defendant asserts a speedy trial claim arising from delay in a
municipal court drunk driving prosecution." Fulford,
349 N.J.
Super. at 189; see, e.g., Tsetsekas,
411 N.J. Super. at 8-10
(citations omitted). We will not overturn a trial judge's decision
where a defendant was deprived of due process on speedy-trial
grounds unless the judge's ruling was clearly erroneous. State
v. Merlino,
153 N.J. Super. 12, 17 (App. Div. 1977).
10 A-0866-16T1
Considering the first factor, the length of delay, we look
to Chief Justice Wilentz's 1984 "directive, later echoed in
Municipal Court Bulletin letters from the Administrative Office
of the Courts, that municipal courts should attempt to dispose of
DWI cases within sixty days." Tsetsekas,
411 N.J. Super. at 11
(quoting State v. Farrell,
320 N.J. Super. 425, 446-47 (App. Div.
1999)). Although we have not suggested that "any delay beyond the
sixty-day goal is excessive," as "[t]here is no set length of time
that fixes the point at which delay is excessive." Ibid. Here,
the delay in the commencement of the trial and final adjudication
was inordinate and weighs significantly in favor of defendant.
See id. at 11-12 (holding a delay of 344 days excessive); Farrell,
320 N.J. Super. at 428 (holding a delay between summons and trial
completion of 663 days to be extensive).
Turning to the second factor, reasons for the delay, we
examine the length of a delay in light of the culpability of the
parties." Tsetsekas,
411 N.J. Super. at 12 (citing Barker,
407 U.S. at 529). "[D]ifferent weights should be assigned to different
reasons" proffered to justify a delay. Barker,
407 U.S. at 531.
Purposeful delay tactics weigh heavily against the State. Ibid.
"A deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the government," than
"[a] more neutral reason such as negligence or overcrowded courts",
11 A-0866-16T1
albeit no matter the reason for delay, the ultimate responsibility
to prosecute a case rests with the state. Ibid. "[A] valid
reason, such as a missing witness, should serve to justify
appropriate delay." Ibid. And, "[d]elay caused or requested by
the defendant is not considered to weigh in favor of finding a
speedy trial violation." Farrell,
320 N.J. Super. at 446.
In addressing the cause of the delay, the trial court noted
that there was a desire to resolve the Ogdensburg charges first,
and a "fair reading of the procedural history is that both the
defense and the State participated in the slow movement on the
case, and [there were] other scheduling problems that came up . .
. [, which] could not have been avoided." The court further added,
there was "no sense that there was a desire on the part of . . .
defendant to rush to a judgment on these [charges]." To some
extent we agree, but conclude that defendant was the prime reason
for the delay. Within the twelve months after defendant was
charged, her counsel was granted four adjournment requests6 before
advising the municipal court that he was unavailable for the months
of August and September. Thereafter, further delay was due to
6
Which in large part was due to defendant's additional discovery
request regarding her friend's charges – made two months after
initial discovery was provided and one month after the initial
pre-trial conference.
12 A-0866-16T1
defendant's successful motion to change venue, which as noted led
to another venue change due to a conflict of interest, and she was
granted another adjournment request due to the unavailability of
a witness. Moreover, as we have previously recognized, "the
transfer of the matter between municipal courts" – even if a
"significant part" of the delay – reasonably explains and justifies
a trial delay. Detrick,
192 N.J. Super. at 426. Defendant cites
the impact of waiting to dispose of the Ogdensburg charge – which
had in its own procedural odyssey that need not be detailed here –
but fails to acknowledge anywhere in the record where she objected
to that wait-and-see approach. We therefore find this factor
weighs significantly against the defendant.
Next, we address the third factor, defendant's assertion of
her rights. "A defendant does not have an obligation to assert
his right to a speedy trial because he is under no obligation to
bring himself to trial." Cahill,
213 N.J. at 266 (citing Barker,
407 U.S. at 527). Although a defendant's delay in demanding a
speedy trial does not constitute a waiver of his right, his
"assertion of or failure to assert his right to a speedy trial is
one of the factors to be considered in an inquiry into the
deprivation of the right." Barker,
407 U.S. at 528. A court may
also consider "the frequency and force of the [defendant's]
13 A-0866-16T1
objections" when assessing whether the defendant properly invoked
the right. Barker,
407 U.S. at 529.
Defendant filed a speedy trial motion with the municipal
court on March 5, 2014, almost thirty months after the charges
were issued.7 Nevertheless, it appears to us that defendant
quietly embraced the municipal court's approach to wait until the
Ogdensburg charge was concluded because for strategic purposes,
she wanted dismissal of the Ogdensburg charge before the charges
here were tried; which in fact is what happened. Thus, we find
this factor weighs slightly against defendant.
Lastly, we consider the fourth factor, prejudice to
defendants, which is assessed in a light most favorable to
defendants, whose interests the right is designed to protect.
Cahill,
213 N.J. at 266 (citing Barker,
407 U.S. at 531). "Those
interests include prevention of oppressive incarceration,
minimization of anxiety attributable to unresolved charges, and
limitation of the possibility of impairment of the defense." Id.
(citing Barker,
407 U.S. at 532). "[P]roof of . . . actual [trial]
prejudice is not a necessary condition precedent to the vindication
of the speedy trial guarantee." Merlino,
153 N.J. Super. at 15-
16. The impairment of an accused's defense is considered "the
7
The municipal court denied the motion for the same reasons that
we do so.
14 A-0866-16T1
most serious since it [goes] to the question of fundamental
fairness." State v. Szima,
70 N.J. 196, 201 (1976).
We accept defendant's assertion that the delay caused her
anxiety. Yet, considering that defendant was faced with the
Ogdensburg charge that also had a long delay – approximately three-
and-a-half years – before it was ultimately resolved, it is unclear
that the charges here were the sole root of her anxiety.
Nonetheless, defendant does not contend that she was prejudiced
in her ability to defend the charges. Accordingly, we are
unpersuaded that this factor weighs in favor of defendants.
In sum, balancing all four Barker factors leads us to agree
with the Law Division that there was no violation of defendant's
right to a speedy trial.
III
In Point VIII, defendant contends the court erred in finding
her guilty of refusal to submit to breath tests because she was
willing to submit to a blood test and Masters contacted emergency
medical services, which took her to the hospital due to her
deteriorating health condition. There is no legal nor factual
support for defendant's contention.
In State v. Marquez,
202 N.J. 485, 503 (2010), our Supreme
Court, in referencing the statutory factors needed to sustain a
15 A-0866-16T1
refusal conviction, citing
N.J.S.A. 39:4-50.2(e) and
N.J.S.A.
39:4-50.4a(a), held:
(1) the arresting officer had probable cause
to believe that defendant had been driving or
was in actual physical control of a motor
vehicle while under the influence of alcohol
or drugs; (2) defendant was arrested for
driving while intoxicated; (3) the officer
requested defendant to submit to a chemical
breath test and informed defendant of the
consequences of refusing to do so; and (4)
defendant thereafter refused to submit to the
test.
The State proved these elements beyond a reasonable doubt. See
State v. Cummings,
184 N.J. 84, 88 (2005).
Defendant did not sustain her burden of proving that purported
physical limitations prevented her from completing the breath
tests. See State v. Monaco,
444 N.J. Super. 539, 551 (App. Div.
2016). Viewing the video, and considering Masters' testimony, the
court determined that after defendant is explained the breath
tests procedures, the obligation to submit to the breath tests,
and the consequences of a refusal, she says no three times to
doing the breath tests. Moments later, off camera, but audio
recorded, she offered to submit to a blood test because of
unexplained medical issues. Noting that a person must have
sufficient breath to produce a valid breath test, the court found,
"[t]here is nothing . . . in the video suggesting respiratory
distress," regarding defendant's refusal to submit to a
16 A-0866-16T1
breathalyzer test. The court further reasoned that the police
called an ambulance for defendant "not [due to] any statement she
had made to [them], [but it was her] nodding off that led to that
decision."
Since we defer to the court's findings of fact, which are
supported by credible evidence, we see no need to disturb these
findings.
IV
Related to defendant's challenge to the refusal to submit
conviction, she contends in Points I and II that the court
misapplied the facts and law in determining that the defense of
necessity did not apply to her decision to drive to the police
station in anticipation of the ill effects from taking her friend's
medicine. Defendant argues the court gave improper weight to
Masters' testimony as opposed to the hospital records, which
indicate she told emergency medical personnel that she drove to
the police station seeking help because she had taken her friend's
medicine, the source of her illness. She further asserts that the
court misapplied State v. Romano,
355 N.J. Super. 21, 36 (App.
Div. 2002), by placing the burden on her to prove the defense of
necessity beyond a reasonable doubt.
We disagree. Under common law, the elements of the defense
of necessity are:
17 A-0866-16T1
(1) There must be a situation of emergency
arising without fault on the part of the actor
concerned;
(2) This emergency must be so imminent and
compelling as to raise a reasonable
expectation of harm, either directly to the
actor or upon those he was protecting;
(3) This emergency must present no reasonable
opportunity to avoid the injury without doing
the criminal act; and
(4) The injury impending from the emergency
must be of sufficient seriousness to
outmeasure the criminal wrong.
[Romano,
355 N.J. Super. at 29 (quoting State
v. Tate,
194 N.J. Super. 622, 628 (App. Div.
1984), rev'd on other grounds,
102 N.J. 64
(1986)).]
In short, our courts have allowed the defense of necessity to be
asserted when the otherwise criminal conduct at issue prevents an
even greater evil. See ibid. Under
N.J.S.A. 2C:2-9, "the burden
[is] on the defendant to come forward with some evidence of the
defense and the burden of proof on the State to disprove the
affirmative defense beyond a reasonable doubt." Id. at 35-36.
Here, defendant presented evidence of mistakenly taking her
friend's Nucynta and driving to the police for medical assistance,
and the court properly applied the burden to the State to establish
beyond a reasonable doubt that the defense of necessity did not
excuse her conduct to the charges. The court credited Master's
testimony that defendant never indicated to him that, when he
18 A-0866-16T1
initially approached her nor during the approximately twenty-five
minutes it took him to administer the field sobriety tests, she
drove to the police station for medical help due to an overdose
of medicine. The court believed his assertion that defendant
stated she was there to help her friend who had been arrested on
the warrant. The video did not show her in a state of panic when
she arrived at the police station as she claimed. And while the
hospital records contain statements by defendant – and buttressed
by her testimony – that she went to the police station seeking aid
from the medication she took, the court is not bound to give her
assertions more weight than Masters' testimony. Thus, the court
rejected defendant's claim that she drove to the police station
to seek aid. Given our standard of review, we see no basis to
part company with the court's factual findings, which are supported
in the record.
We also conclude that defendant's reliance on Romano is
misplaced. There, the defendant left a restaurant intoxicated
when three angry men brutally beat and threatened to kill him.
Romano,
355 N.J. Super. at 24. He made it to his car and drove
350 yards without turning on the headlights and was stopped by
police. Ibid. The defendant, covered in blood, immediately
informed the officer he had been "jumped" and asked for help.
Ibid. We found the defendant's actions were justified, because
19 A-0866-16T1
no realistic alternative to avoid his pursuers existed. Id. at
35.
Unlike the defendant's actions in Romano, defendant's
decision to drive to the police station was not justified because
it was to see if she could help her friend. Even if we assume
that she drove to the police station seeking aid for her
anticipated ill reaction to the medication, her actions still did
not satisfy the defense of necessity. First, she created the
situation by taking the medication. Second, if she truly feared
the medicine's ill effects, she should have drove to the hospital
for assistance.8 Third, no emergency existed when she drove to
the police station because as Master stated, and as verified by
defendant's expert witness, it was sometime after defendant took
the medication and after she got to the station that the
medication's ill effect occurred.
V
In Points III and IV, defendant contends that her rights
against double jeopardy were violated when we vacated her
conviction and remanded the matter to the trial court following
her first appeal to this court – after it was discovered that the
8
Defendant testified that her cellphone battery was dead, and
she did not know her friends' neighbors well enough to ask them
for assistance. The record does not indicate whether there was a
landline phone in her friend's home.
20 A-0866-16T1
court was not forwarded defendant's hospital records and pill
bottle that were admitted in the municipal court trial – and
another trial de novo was held that resulted in another guilty
verdict. She maintains that while the State, the Criminal Case
Management Office, and the court's law clerk, were aware that the
court did not have the hospital records and pill bottle, she was
not informed.9 Defendant also asserts that they also submitted a
reproduced video for the first trial de novo without informing
her. Defendant maintains that under United States v. Dinitz,
424 U.S. 600, 611 (1976) and State v. Dunns,
266 N.J. Super. 349, 366
(App. Div. 1993), these bad faith actions caused her to be retried,
which afforded the State a better chance to obtain a conviction;
thus, a double jeopardy violation.
The Double Jeopardy Clause of the Fifth Amendment of the
United States Constitution, and Article I, Paragraph 11 of the New
Jersey Constitution prohibit an individual from being twice placed
in jeopardy for the same offense. State v. Miles,
443 N.J. Super.
212, 220-21 (App. Div. 2015), aff'd
229 N.J. 83 (2017). The New
Jersey constitutional protections against double jeopardy have
been interpreted to be co-extensive with the protections afforded
by the federal clause. Id. at 221 (citing State v. Schubert, 212
9
However, it is unclear how this claim relates to the double
jeopardy argument.
21 A-0866-16T
1 N.J. 295, 304 (2012)). Under both clauses, a defendant is
safeguarded against three types of 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. Ibid. (citing State v. Dively,
92 N.J. 573, 578
(1983)). "New Jersey has traditionally placed the burden upon a
defendant seeking protection of the double jeopardy bar." State
v. Salter,
425 N.J. Super. 504, 520 (App. Div. 2012) (citing State
v. Ebron,
61 N.J. 207, 217-18 (1972)).
None of the abuses cited in Schubert apply to the present
situation. The second trial de novo was due to the court's failure
to have the entire municipal court record in the first trial de
novo in which defendant was found guilty. In defendant's first
appeal to us, with the State's consent, we granted defendant's
motion to vacate defendant's conviction and remand for the second
trial de novo. Moreover, based upon our review of the record,
there is no proof that the State – nor, for that matter, the court
staff – were aware that the court did not have the complete record
for the first trial de novo. In fact, during that proceeding,
defendant's argument in both her brief and at oral argument cited
the hospital records and pill bottle, and the court's oral decision
referred to "medical records." Accordingly, double jeopardy did
not attach to the second trial de novo.
22 A-0866-16T1
VI
The remaining arguments raised by defendant, to the extent
we have not addressed them, lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
23 A-0866-16T1
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