Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate and litigation topics.

He was awarded the NJ State State Bar Municipal Court Practitioner of the Year.

He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters.

To schedule a confidential consultation, call us or New clients email us evenings and weekends via contact box

Kenneth Vercammen & Associates, P.C,

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Edison, NJ 08817,

(732) 572-0500

Thursday, December 31, 2015

New law law a bill that prohibits the sending of an unsolicited advertisements via text message

Governor Chris Christie signed into a law a bill that prohibits the sending of an unsolicited advertisements via text message to a resident of New Jersey if it may cause the recipient to incur a telecommunications charge or a usage allocation deduction. S1357 (Van Drew)/A617 (Moriarty) will take effect next year.

Telecommunications companies that sell, or offer to sell, text messaging services, will now have to offer an option allowing customers to block all incoming and outgoing text messages. Telecommunications companies may continue to send customers text messages concerning their existing accounts as long as no charges or deductions will result.

The bill passed both houses last September, but met with a conditional veto by the governor requesting that the bill’s prohibitions be moved from the Consumer Fraud Act, where it was initially proposed, to Title 2A. The governor cited a concern that the bill’s placement of the prohibitions within the Consumer Fraud Act would trigger significant penalties typically reserved for fraudulent, but not aggressive, business practices.

“Although we wish to discourage businesses from sending unsolicited text messages because they place unwarranted burdens on the consumer, it is important to note that such text messages are not automatically fraudulent or deceptive,” the governor said in the veto message.

Under the new law, violators will be subject to a civil penalty not to exceed $500 for the first violation and $1000 for each subsequent violation.

Bill Targets Unsolicited Check Scams

Companies that mail unsolicited checks that, once cashed, enroll customers into costly programs will face civil penalties in New Jersey. Christie signed S1477 (Van Drew)/A625 (Moriarty) into law, would fine businesses $500 for the first violation and $1000 for each subsequent violation.

Assemblyman Paul Moriarty drafted the legislation when a constituent showed him an unsolicited check for $8.25 the constituent received. Cashing the check would have automatically enrolled the person to whom the check was written into an automotive roadside assistance program for a monthly fee of $15.99.

“These so-called free money offers are at their best deceptive and, at their worst, downright dishonest,” said Moriarty.

Checks exempted from the law’s provisions include checks that are mailed in response to a request or application for a check or account by the individual; substitutes for checks or accounts previously issued to the person; or those related to a consumer credit transaction or consumer loan issued by certain types of financial institutions.

Similar to the law targeting unsolicited text messages, Christie vetoed this bill with a recommendation to remove the prohibitions from the Consumer Fraud Act to Title 2A. Both houses voted unanimously to concur with the governor’s recommendations. The law takes effect next year.
Ken Vercammen is a life member of NJSBA

Post conviction granted. State v. Colon

Post conviction granted. State v. Colon, ____ N.J. Super. ____ (App. Div. 2005).

DOCKET NO. A-6531-02T4
Submitted October 27, 2004 - Decided January 11, 2005
Before Judges Wefing, Payne and C.S. Fisher.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, 01-09-1080.
Yvonne Smith Segars, Public Defender, attorney for
appellant (Michael Confusione, Designated Counsel, of
counsel and on the brief).
Peter C. Harvey, Attorney General, attorney
for respondent (Debra A. Owens, Deputy Attorney General,
of counsel and on
the brief).
The opinion of the court was delivered by
Defendant Orlando Colon appeals on constitutional, statutory and equitable double
jeopardy grounds from his convictions, following the entry of conditional pleas of guilty,
on charges of second-degree eluding, N.J.S.A. 2C:29-2b, second-degree aggravated
assault while eluding, N.J.S.A. 2C:12-1b(6), and third-degree theft by unlawful taking of
an automobile, N.J.S.A. 2C:20-3. Additionally, he appeals from concurrent sentences
imposed on both the eluding and aggravated assault convictions of seven years with
three and one-half years of parole ineligibility, claiming that those sentences were
We find no legal or equitable bar to defendant's convictions. However, we find
the sentence imposed on defendant's conviction for second-degree aggravated assault
while eluding, N.J.S.A. 2C:12-1b(6), to have been illegal, since neither an eighty-five
percent period of parole ineligibility nor a three-year period of parole supervision was
imposed as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Because a legal sentence would require defendant to spend a greater period of time in
custody than he is presently sentenced to serve, we remand the matter to permit
defendant to seek to renegotiate or to withdraw his plea, or for resentencing.
On July 30, 2001, defendant stole a Toyota Corolla that he found with the motor
running and the keys in the ignition. Following a report of the theft, he was spotted by
the police driving the car, was ordered to stop, failed to do so, and instead eluded the
police officers who followed him. Defendant struck a bicyclist in the course of his
ensuing flight, causing an occipital skull fracture. Following his arrest, defendant
admitted to stealing a Shure transmitter and wireless microphone valued at $1,800,
which were found in the trunk of the car.
Two narrative reports of the incident, prepared by Sergeant Steven Verdi, stated
as follows:
Observed a silver Toyota Corolla traveling north on King St.
matching a description of a stolen car which was being
tracked by a representative of Lojack . . . . Vehicle was
being operated by one male with no other occupants.
Overhead lights and siren were activated in an attempt to
pull vehicle over at which time vehicle went around other
vehicles and continued, increasing speed in an apparent
attempt to elude this officer. Suspect turned left off of King
St. to proceed west onto Smith St. . . . As this officer turned
onto Smith St., it was observed that there was a large
amount of pedestrian and vehicular traffic further down
Smith St. and the pursuit was immediately terminated and
radioed in as such. . . .
Suspect continued west bound on Smith St. driving
recklessly weaving in and out of traffic. At this time,
overhead lights and siren were shut off and pursuit was
completely terminated. However this officer continued to
follow in the direction of suspect in an attempt to observe his
direction of travel. P.O. Harth was behind this officer
following in vehicle 803 west on Smith St. When suspect
was observed turning north on Maple St. against the one
way, suspect was followed. However was approx. a half
block ahead with vehicles in between and continued driving
in an erratic manner. Headquarters was advised by radio of
suspect's direction of travel. Suspect vehicle struck a male
on a bicycle at the intersection of Maple St. and Fayette St.
and continued westbound on Fayette St. This officer as well
as P.O. Estrada who arrived on scene stopped to render aid
to the bicyclist. Suspect crashed into a curb further west on
Fayette St. where he was apprehended by P.O. Vargas and
P.O. Harth.
Defendant was issued municipal court summonses for driving on the revoked list,
N.J.S.A. 39:3-40, reckless driving, N.J.S.A. 39:4-96, traveling the wrong way on a oneway
street, N.J.S.A. 39:4-85.1, and leaving the scene of an accident, N.J.S.A. 39:4-
129(c). A citizen complaint was filed against him as the result of the theft of the radio
components. Additionally, complaints were filed by the police charging the felonies of
eluding, aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1), theft of the Toyota,
and receipt of the stolen radio. Defendant was unable to post bail, and remained in
custody throughout the proceedings at issue.
On September 25, 2001, an indictment against defendant was filed that charged
second-degree eluding, N.J.S.A. 2C:29-2b (count one), second-degree aggravated
assault while eluding, N.J.S.A. 2C:12-1b(6) (count two), second-degree aggravated
assault, N.J.S.A. 2C:12-1b(1) (count three), fourth-degree assault by auto, N.J.S.A.
2C:12-1c (count four), third-degree theft of a motor vehicle by unlawful taking, N.J.S.A.
2C:20-3 (count five), and receipt of stolen property (the radio components), N.J.S.A.
2C:20-7 (count six).
On September 26, 2001, one day after the indictment against him had been filed,
defendant was brought from jail to the municipal court, where he pled guilty to the
charges pending there of driving on the revoked list, reckless driving, and traveling the
wrong way on a one-way street, as well as to a charge of failing to report an accident,
N.J.S.A. 39:4-130, as amended from leaving the scene of the accident. Despite the fact
that the complaint alleging receipt of stolen property valued the property at $1,800
thereby setting forth a basis for a crime of the third degree, and the pendency in the
Law Division of an indictment for third-degree receipt of stolen property, the court,
without jurisdiction (see N.J.S.A. 2B:12-19a), notice to the prosecutor or apparent
authorization to do so1 (see State v. Still, 330 N.J. Super. 50, 54-55 (App. Div.), certif.
denied, 165 N.J. 490 (2000)) downgraded the crime to a fourth-degree one,2 to which
defendant also pled guilty. Defendant was not represented by counsel while in
municipal court, and the record does not reflect the presence of a prosecutor.
Additionally, no factual basis was adduced for any of the guilty pleas. Sentences were
imposed, consisting of various fines and penalties, sixty days loss of driving privileges,
and a sixty-day jail term on the charge of receipt of stolen property.
Close to the conclusion of the proceedings, the municipal judge acknowledged
on the record that defendant was presently in custody, and he asked: "What are you
being held on now?" Defendant responded: "Drugs and burglary." No support for that
statement appears in the record on appeal. The prior court history summary contained
in defendant's presentence investigation report does not reflect any pending burglary
charges.3 It does reflect an open bench warrant from the criminal court of Kings County
1 Defendant's presentence investigation report states that
the charge was "remanded to municipal court" on August 7, 2001.
The basis for that statement is unclear.
2 A municipal court has jurisdiction over fourth-degree
crimes enumerated in chapter 20 of Title 2C. See N.J.S.A.
3 Defendant was charged with burglary under Middlesex
County Indictment No. 00-08-00873 on May 29, 2000. However on
May 21, 2001, he was found not guilty following trial. Although
at that time defendant received a sentence of 135 days for
resisting arrest, the record indicates that the time set forth
issued on December 12, 2000 as the result of charges of criminal possession of a
controlled dangerous substance. Defendant was serving a one-year term of probation
for shoplifting at the time of the crimes at issue.
The prosecution against defendant in the Law Division continued. On May 24,
2002, the trial court denied defendant's motion to dismiss the charges against him in
counts one, two, three, five, and six of the indictment on double jeopardy grounds,
finding the elements of the crimes charged in the indictment to be different from those
underlying the municipal matters, and thus not barred by the federal constitution under
the "same elements" test established by the United States Supreme Court in
Blockburger v. United States, 284 U.S. 299, 303-04, 52 S. Ct. 180, 181-82, 76 L.Ed.
306, 309 (1932) and reaffirmed in United States v. Dixon, 509 U.S. 688, 703-12, 113 S.
Ct. 2849, 2859-64, 125 L. Ed. 2d 556, 572-78 (1993). The trial court recognized that,
prior to Dixon, the New Jersey Supreme Court had alternatively used a "same conduct"
test that had been endorsed by the United States Supreme Court in a decision
repudiated by Dixon. See Grady v. Corbin, 495 U.S. 508, 510, 110 S. Ct. 2084, 2087,
109 L. Ed. 2d 548, 557 (1990). The trial court also recognized that in State v. Capak,
271 N.J. Super. 397, 403-04 (App. Div.), certif. denied, 137 N.J. 164 (1994), we
declined to find, in the absence of dispositive precedent to the contrary, that the "same
conduct" test was no longer applicable to a determination of double jeopardy under the
New Jersey constitution. Nonetheless, the trial court made no determination of whether
that test had been met in the present case. While rejecting the applicability of double
in the sentence had been previously served at the time
sentencing occurred.
jeopardy to most of the indictment, the trial court did grant defendant's motion to dismiss
count four of that indictment, charging fourth-degree assault by auto, a charge that the
State conceded was barred by double jeopardy principles as the result of defendant's
plea in municipal court to reckless driving. In an order entered on June 12, 2002, the
trial court memorialized these determinations, vacated defendant's municipal court
conviction and sentence on the complaint of receipt of stolen property, and vacated
defendant's municipal court convictions and sentences on the other charges contained
in the various summons to which he had pled guilty--a matter that the court declared at
the motion hearing to be dictated by considerations of fairness.
On April 4, 2003, defendant entered conditional pleas of guilty before a different
Law Division judge to count one of the indictment (eluding), two (aggravated assault
while eluding) and five (theft by unlawful taking of a motor vehicle). After establishing
that he had stolen the car as a means to go home and that he ignored police attempts
to stop him, defendant gave the following factual basis for his pleas:
[DEFENSE COUNSEL] FETKY: You drove away;
MR. FETKY: How fast were you going?
THE DEFENDANT: The car had a flat tire.
MR. FETKY: How fast were you going?
THE DEFENDANT: About like 20, 25. 20 to 25 miles
an hour.
MR. FETKY: Did you go through any stop signs? Did
you run any red lights?
MR. FETKY: Were you driving recklessly?
MR. FETKY: Did there come a point in time when
you came in contact with a man?
THE COURT: Wait a minute. How were you driving
THE DEFENDANT: I was driving on the flat tire, and I
was swaying. I was swaying.
MR. FETKY: Were you going down the street
swaying from side to side?
MR. FETKY: Did you cross the double yellow line
MR. FETKY: Did there come a point in time, where
you hit someone on a bicycle?
MR. FETKY: Did you see that person?
THE DEFENDANT: After I hit them, yes.
MR. FETKY: You didn't see them before you hit
them? You weren't paying attention, were you?
* * *
THE COURT: While you were driving, you were also
under the influence?
THE DEFENDANT: Yes, your Honor.
* * *
[PROSECUTOR] SEWICH: You knew the police
wanted your car to stop? They were trying to stop you;
THE DEFENDANT: Correct. I took off anyway. That
is correct.
MR. SEWICH: That happened around noontime?
Sometime like 10:50 in the morning; correct?
MR. SEWICH: You were fleeing the police on Smith
Street in Perth Amboy; correct?
MR. SEWITCH: That is a main street in Perth
Amboy? A main business district; correct?
MR. SEWITCH: You got off of Smith Street and you
drove down Maple Street; is that correct?
THE DEFENDANT: I went from Smith, down State,
went through a parking lot, came around. That's when the
officers came behind me and turned on their lights. And
that's when I turned the corner, left, and I crashed into a
curb, caught a flat, and I kept on going.
MR. SEWITCH: You, eventually, got onto Maple
Street; is that correct?
MR. SEWITCH: Where the collision occurred; is that
MR. SEWITCH: When the crash occurred on Maple
Street, you were on a one-way street; is that correct?
MR. SEWITCH: You were going the wrong way on
Maple Street when the collision occurred?
As we have stated, defendant was sentenced in accordance with the plea
agreement, as approved by the prosecutor, to concurrent terms of imprisonment of
seven years with three and one-half years of parole ineligibility on the eluding and
assault charges, and to a five-year concurrent term on the theft charge.
On appeal, defendant raises the following arguments for our consideration:
Defendant concedes that principles of double jeopardy under the federal
constitution do not bar his prosecution in the Law Division, because the "same
elements" are not found in the crimes for which he was convicted in the earlier
municipal court and the later Law Division proceedings.4 That "same elements" test, he
also concedes, has now been adopted by a majority of the United States Supreme
Court as the sole means for determining the existence of double jeopardy under the
federal constitution. See Dixon, supra, 509 U.S. at 703-12, 113 S. Ct. at 2859-64, 125
L. Ed. 2d at 572-78 (Part IV of majority opinion by Justice Scalia, joined by Justice
Stevens) in which Chief Justice Rehnquist and Justices O'Connor and Thomas also
joined, 509 U.S. at 713-14, 720, 113 S. Ct. at 2865, 2868, 125 L. Ed. 2d at 579, 583.
However, defendant argues that the criminal charges to which he pled guilty in the Law
Division were barred by the state constitution's double jeopardy clause, N.J. Const. art.
I, ¶ 11,5 statutory double jeopardy prohibitions and court rules regarding mandatory
joinder of claims, and equitable considerations of fundamental fairness. The State
argues to the contrary and contends additionally that deficiencies in the municipal court
proceedings invalidated defendant's guilty pleas in that court.
a. The Municipal Court Proceedings
Double jeopardy concerns in the context of multiple prosecutions generally arise
as the result of procedural bungling. Such was the case here. The municipal court
4 We find no need to discuss the applicability of double
jeopardy to crimes for which defendant was charged in the
indictment, but to which he did not plead guilty.
5 By its terms, our state constitution only bars reprosecution
"after acquittal." However, its protections have
been interpreted consistently as co-extensive with those
afforded under the federal constitution. See, e.g., State v.
Churchdale Leasing, Inc., 115 N.J. 83, 107 (1989); State v.
DeLuca, 108 N.J. 98, 101-02, cert. denied, 484 U.S. 944, 108 S.
Ct. 331, 98 L. Ed. 2d 358 (1987); State v. Barnes, 84 N.J. 362,
370 (1980); State v. Rechtschaffer, 70 N.J. 395, 404 (1976).
proceedings occurring in this case were unquestionably irregular, and that irregularity
contributed significantly to the difficulties that we face in resolving this appeal.
At all relevant times, Directive No. 10-82, issued by the Administrative Director of
the Courts on May 3, 1983, was in effect. That directive, formulated in accordance with
the Supreme Court's decision in State v. Dively, 92 N.J. 573, 589 (1983), a decision that
recognized that motor vehicle violations tried in municipal court are within those
offenses subject to the double jeopardy clause (id. at 586), requires, in instances in
which a complaint had been filed in municipal court with respect to a Title 39 violation
involving a motor vehicle accident resulting in death or serious bodily injury, that the
municipal court judge or administrator notify the county prosecutor to afford the
prosecutor the opportunity to determine if the accident involved an indictable offense. If
so, the municipal court is directed to take no further action until the matter is presented
to the grand jury, and if an indictment is returned, then the municipal charges are to be
tried in the Superior Court. See also Directive No. 40-64, permitting Superior Court
judges to sit as acting municipal court judges to dispose of matters referred to them;
State v. Muniz, 118 N.J. 319 (1990) (holding that the right to a jury trial does not attach
to the transferred municipal matters); R. 3:15-3 (governing trial of criminal offenses and
lesser, related infractions). Although implementation of that directive provides some
assurance that a defendant will not twice be placed in jeopardy for the same crime and
offers safeguards against precipitate municipal court action, it is unclear in this case
whether any of the summonses and complaints sufficiently apprised the municipal court
of the existence of serious bodily injury so as to trigger the directive's procedures.
Significantly, however, the municipal court proceedings took place at a time after
an indictment had been handed down charging defendant with crimes arising out of the
same sequence of events. Thus, computerized records available in the municipal
courts should, if consulted, have apprised the municipal judge of the status of charges
against defendant. Inquiry of the prosecutor, had he been present, could have achieved
the same goal. The necessity of such inquiry should have been evident, since
defendant was in custody when he appeared in court and apparently was wearing
prison garb. Defendant's unsworn statement regarding the charges that were holding
him certainly was not dispositive in the circumstances.
Further, the indictment's charge of third-degree receipt of stolen property appears
to have been factually identical to the downgraded fourth-degree charge to which
defendant pled guilty in municipal court. There is no evidence that the prosecutor was
advised of the municipal judge's determination to proceed on charges pending in that
court, or that a proper waiver of indictment and trial by jury by defendant and consent by
the prosecutor to a downgrade of the receipt of stolen property charge was obtained.
See Still, supra, 300 N.J. Super. at 54; N.J.S.A. 2B:12-18 (requiring waiver of
constitutional rights by defendant and consent by prosecutor to downgrade). We are
satisfied that if the necessary waivers and consent to trial on the downgraded charges
in municipal court were not obtained, any conviction for receipt of stolen property and
sentence imposed were beyond the municipal court's jurisdiction and constituted a legal
nullity. State v. LeJambre, 42 N.J. 315, 319 (1964); Still, supra, 330 N.J. Super. at 55.
However, the status of that charge is not relevant here since defendant received credit
on his present sentence for any jail time spent as a result of that conviction, since that
conviction does not serve as a basis for defendant's present double jeopardy
arguments, and since the conviction was vacated by the Law Division judge.
Additional defects existed in the proceedings. Defendant was not afforded
counsel, and the record does not disclose whether he was advised of his right to
counsel in circumstances in which a jail term was imposed. State v. Gonzalez, 114 N.J.
592, 607 (1989) (requiring such advice); Rodriguez v. Rosenblatt, 58 N.J. 281, 295-96
(1971) ("whenever the particular nature of the charge is such that imprisonment in fact
or other consequence of magnitude is actually threatened or is a likelihood on
conviction, the indigent defendant should have counsel assigned to him unless he
chooses to proceed pro se with his plea of guilty or his defense at trial"). No factual
basis was given for defendant's plea as required by R. 7:6-2(a)(1). See also State v.
Martin, 335 N.J. Super. 447, 450 (App. Div. 2000). Defendant's understanding of the
plea, its voluntariness, and defendant's knowledge of its consequences were not
established as R. 7:6-2(a)(1) demands (see also State v. Gale, 226 N.J. Super. 699,
704 (Law Div. 1988)), and defendant's appellate rights were not explained. See Martin,
supra, 335 N.J. Super. at 451; R. 7:13-1.
The State argues on appeal that deficiencies in the municipal court proceedings
invalidated defendant's pleas of guilty there, and thus mooted his double jeopardy
argument. We question whether this argument can properly be raised at this stage of
the proceedings. We recognize that in a proceeding underlying the Court's disciplinary
action against an attorney in In re Seelig, 180 N.J. 234 (2004), a municipal judge
permitted the State to move to vacate the municipal court pleas of Seelig's client as the
result of substantial defects in the proceedings similar to those present here and the
manifest injustice that would occur if the pleas were permitted to stand, thereby barring
on double jeopardy grounds defendant's indictment and prosecution for aggravated
manslaughter and death by auto. Id. at 241. The municipal judge's determination was
affirmed on appeal to the Law Division and to us. Ibid. However, the procedure
described in Seelig can be distinguished from the one before us, since there a motion to
vacate the plea was filed promptly after the pleas were entered. Here, no such motion
was ever filed, a procedural lapse that we find to be crucial. Further, we find that the
trial court's order vacating the convictions and sentences imposed in municipal court on
grounds of "fairness," following denial, in significant part, of defendant's double jeopardy
motion does not moot the issues raised by defendant, finding no legal support for the
order entered by the motion judge, except insofar as it applied to defendant's conviction
for fourth-degree receipt of stolen property. We do not find in the circumstances that
the municipal judge was deprived of jurisdiction of the remaining charges before him as
the result of the indictment, because as we shall explain, we find no identity in the
offenses charged. However, because the crimes arose out of a single chain of events,
and because an indictment relating to those events had been handed down, to avoid
the double jeopardy issues that have arisen, the municipal judge should not have
proceeded, if at all, until disposition of the indictment or authorization from the
b. State Constitution
We next address defendant's claim to the protection of the double jeopardy
clause of the state constitution. For a significant period of time, state precedent
regarding the application of double jeopardy principles has mirrored federal precedent,
and when the United States Supreme Court found that the existence of double jeopardy
would be determined by looking at not only the elements of the crimes, the test adopted
in Blockburger, supra, but also at the actual evidence to be presented at trial (see
Illinois v. Vitale, 447 U.S. 410, 420, 100 S. Ct. 2260, 2267, 65 L. Ed. 2d 228, 238 (1980)
and Grady, supra, 495 U.S. at 510, 110 S. Ct. at 2087, 109 L. Ed. 2d at 557), our
Supreme Court followed suit. See, e.g. State v. Yoskowitz, 116 N.J. 679, 690-92
(1989); State v. DeLuca, 108 N.J. 98, 107, cert. denied, 484 U.S. 944, 108 S. Ct. 331,
98 L. Ed. 2d 358 (1987); Dively, supra, 92 N.J. at 581-83.
However, in Dixon, supra, the United States Supreme Court overruled Grady's
holding that double jeopardy "bars a subsequent prosecution if, to establish an essential
element of an offense charged in that prosecution, the government will prove conduct
that constitutes an offense for which the defendant has already been prosecuted."
Grady, supra, 495 U.S. at 510, 110 S. Ct. at 2087, 109 L. Ed. 2d at 557 (footnote
omitted). It instead found double jeopardy to exist only upon satisfaction of
Blockburger's "same elements" test. Dixon, supra, 509 U.S. at 703-12, 113 S. Ct. at
2859-64, 125 L. Ed. 2d at 572-78. As we recognized in Capak, supra, the New Jersey
Supreme Court has not similarly overruled the precedent that it established in DeLuca
and Yoskowitz. 271 N.J. Super. at 403. We stated there: "to the extent DeLuca and
Yoskowitz may be understood to embody state constitutional principles, until our
Supreme Court holds otherwise," we will continue to utilize the "same conduct" test.
Capak, supra, 271 N.J. Super. at 403-04. See also Russo v. N.J. Dept. of Corrections,
324 N.J. Super. 576, 586 (App. Div. 1999) (noting that "the United States Supreme
Court seems to have settled on a bright-line, but perhaps mechanistically sterile,
approach," but declining to determine whether the New Jersey Supreme Court would
follow that approach and finding that the defendant met neither a "same elements" or
"same conduct" test); State v. White, 248 N.J. Super. 515, 521-22 (App. Div. 1991)
(expressing uncertainty as to whether Grady constituted a retreat from Vitale, but
observing that if it did, the New Jersey Supreme Court could depart from its practice of
finding the State's double jeopardy protection to be coextensive with the federal one and
could continue to apply Yoskowitz and DeLuca).
The State, without reference in this context to Capak or to Russo or White, urges
us to forecast on the basis of prior statements by the New Jersey Supreme Court that
the Court would, as matter of state constitutional interpretation, view double jeopardy
through the narrowed lens reestablished by the United States Supreme Court in Dixon.
It would thus, the State argues, hold that defendant's double jeopardy claim under state
constitutional law is barred by his failure to meet Blockburger's "same elements" test. In
support of that position, the State cites to a considerable body of precedent in which the
Court has held that the State's constitutional double jeopardy protection is coextensive
in principle and scope with federal guarantees. See, e.g., State v. Loyal, 164 N.J. 418,
437 (2000) (discussing double jeopardy principles in a mistrial context); DeLuca, supra,
108 N.J. at 102; Dively, supra, 92 N.J. at 578; State v. Farmer, 48 N.J. 145, 168 (1966)
(mistrial), cert. denied, 386 U.S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967). See also
State v. Georges, 345 N.J. Super. 538, 548 (App. Div. 2001)(mistrial), certif. denied,
174 N.J. 41 (2002); State v. Torres, 328 N.J. Super. 77, 91 (App. Div. 2000). Further,
the State argues that nothing in the wording (which is narrow in scope), the intent, or the
history of the New Jersey constitutional protection against double jeopardy suggests
that its protection is broader or more expansive than that of its federal counterpart.
However, we note that in those cases in which the Court discussed the
coextensive nature of double jeopardy under the federal and New Jersey constitutions
in a context similar to that presented by this appeal, the United States Supreme Court
was in the process of expanding the provision's protections. Moreover, as defendant
argues, the Court has expressed dissatisfaction with the use of any one test to
determine the existence of double jeopardy, as "none has proved to be entirely
satisfactory" (State v. Gregory, 66 N.J. 510, 514 (1975)) but, as early as State v. Hoag,
21 N.J. 496, 502 (1956), aff'd, 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913, reh'g
denied, 357 U.S. 933, 78 S. Ct. 1366, 2 L. Ed. 2d 1375 (1958) it had recognized the
wide-spread use of a "same evidence" test.
As an intermediate appellate court, we are therefore confronted with the difficult
determination of whether to adhere to the Court's existing interpretation of federal and
state double jeopardy protections, set forth in Yoskowitz, DeLuca and Dively, or, without
significant precedent to suggest that the Court would narrow or restrict the flexibility of
its view of double jeopardy to accord with newly-established federal constitutional law,
to forecast that it would do so in a state constitutional context. We find the latter course
to be presumptuous, and, accordingly, follow Capak in holding that such a
determination must be made by the Supreme Court, not by us. We accordingly view
defendant's proofs in light of the "same conduct" test in determining whether state
constitutional proscriptions against double jeopardy have been violated. We determine
that they have not.
We find the Supreme Court's decision in DeLuca, supra, to be of particular
relevance to the present case. There, defendant, whose blood alcohol content was
.21%, struck and killed a pedestrian. After he was acquitted in the Law Division of
death by auto, N.J.S.A. 2C:11-5, he moved for dismissal of a subsequent municipal
court prosecution under N.J.S.A. 39:4-50 for driving while intoxicated (DWI). The Court
concluded that the same elements did not comprise both crimes, and thus that the
municipal prosecution was not barred by Blockburger. Id. 108 N.J. at 108. In
discussing the second standard for the application of double jeopardy, the Court stated:
the question in the second prong was whether the evidence
actually used to establish guilt in the first prosecution is
identical to that that 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; emphasis
Because the State contended that proofs of recklessness other than intoxication were
offered in the death-by-auto case, and because that assertion could not be verified by
the appellate record, the matter was remanded so that the trial court could review those
proofs. The Court held: "If 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.
In the present case, defendant was not charged in municipal court with any
offenses connected with his theft of a motor vehicle. Thus, no constitutional principle
bars his conviction in the Law Division following entry of a plea of guilty to theft by
unlawful taking. Defendant also pled guilty in the Law Division to second-degree
eluding, which requires proof that, while operating a motor vehicle, he knowingly fled or
attempted to elude a police officer after receiving a signal to stop, and while doing so,
created a risk of bodily injury to another person. N.J.S.A. 2C:29-2b; State v. Wallace,
158 N.J. 552, 560 (1999); State v. Dixon, 346 N.J. Super. 126, 135-36 (App. Div. 2001),
certif. denied, 172 N.J. 181 (2002). He pled guilty, as well, to second-degree
aggravated assault while eluding, N.J.S.A. 2C:12-1b(6), a strict liability crime designed
to increase the penalty for eluding when bodily injury results. We have previously set
forth the factual basis for those pleas.
In municipal court, defendant had previously pled guilty, in relevant part, to
reckless driving and traveling the wrong way down a one-way street. The factual basis
for the one-way street charge is self-evident, and because it did not constitute the sole
basis for defendant's plea to eluding and was irrelevant to his plea to the strict liability
crime of aggravated assault while eluding, jeopardy did not attach as the result of that
municipal court plea and conviction.
In contrast, it is not possible to determine the factual basis for the charge of
reckless driving from the summons that was issued, which recites only the statutory
violation; from the factual basis given for the plea, since there was none; or from
general statements made by the municipal court judge, who confined his attention to the
imposition of penalties, without any mention at all (except in connection with the receipt
of stolen property) of the facts underlying the charges pending against defendant.
Reckless driving can, of course, be proven by the same or fewer facts than those
offered in the Law Division to establish the "creation of a risk of death or injury to any
person" that elevates eluding to a crime of the second degree. DeLuca, supra, 108 N.J.
at 109. However, if defendant is to succeed in obtaining dismissal of counts of an
indictment on double jeopardy grounds, he must demonstrate that the first prosecution
encompassed all the facts utilized in the second. State v. Ebron, 61 N.J. 207, 215-17
(1972)(establishing burden of proof). That is something that defendant cannot prove in
this case as the result of the lack of any factual foundation for the municipal court pleas,
and for that reason, his claim of double jeopardy, even if judged under the more
expansive "same conduct" standard, must fail.
c. Statutory Double Jeopardy Protection
Defendant argues alternatively that the indictment should have been dismissed
pursuant to N.J.S.A. 2C:1-10a(3), which provides statutory protection from double
jeopardy by stating:
A prosecution of a defendant for a violation of a
different provision of the statutes or based on different facts
than a former prosecution is barred by such former
prosecution under the following circumstances:
a. The former prosecution resulted in an acquittal or
in a conviction as defined in section 2C:1-9 and the
subsequent prosecution is for:
* * *
(3) The same conduct, unless (a) the offense of which
the defendant was formerly convicted or acquitted and the
offense for which he is subsequently prosecuted each
requires proof of a fact not required by the other and the law
defining each of such offenses is intended to prevent a
substantially different harm or evil . . . .
We note at the outset that defendant's claim to the benefit of New Jersey's
statutory double jeopardy bar is precluded by the fact that, as we previously found, he
cannot demonstrate the identity of the conduct supplying the foundation for the charges
of reckless driving and eluding. Moreover, we accept the State's position that the motor
vehicle statute prohibiting reckless driving, albeit quasi-criminal in nature, and the
criminal statute making eluding a crime of either the second or third degree were
intended to prevent substantially different harms or evils. To be sure, both focus on
reckless driving and the dangers posed by such conduct. However, the eluding statute
has the additional purpose of requiring adherence to the commands of law enforcement
personnel, thereby enhancing their investigatory, crime prevention and other functions.
See State v. Seymour, 289 N.J. Super. 80, 87 (App. Div. 1996), where we observed:
the [eluding] statute would have no meaning and be
rendered ineffective if a driver of a vehicle was not required
to stop when signaled to do so. There are many lawful
reasons, criminal and non-criminal, for a law enforcement
officer to signal a motorist to stop. See Cady v.
Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L.
Ed. 2d 706, 715 (1973). See also State v. Goetaski, [209
N.J. Super. 362, 365 (App. Div. 1986)]. The criminal penalty
for failure to stop is to encourage compliance with the
officer's signal.
d. Fundamental Fairness
In arguing that the indictment against him should have been dismissed as the
result of considerations of fundamental fairness, defendant places principal reliance on
the Court's decision in Gregory, supra, wherein it stated:
In the course of our opinion [in State v. Roller, 29 N.J. 339
(1959)] we pointed out that neither the same evidence test
nor the same transaction test had worked with complete
satisfaction and that while the court had been seeking the
elusive ideal test it had in each instance endeavored fairly to
protect the State's vital interest in bringing the guilty to
justice while at the same time protecting the accused from
multiple trials and punishment when in substance there had
been but a single wrongdoing. 29 N.J. at 346. In State v.
Currie, [41 N.J. 531 (1964)], we noted the futility of the
efforts extended towards the formulation of a single legal test
to operate absolutely and inflexibly throughout the field of
double jeopardy; and we stressed that in applying the
prohibition against double jeopardy the emphasis should be
on underlying policies rather than technisms and that the
primary considerations should be fairness and fulfillment of
reasonable expectations in the light of the constitutional and
common law goals. 41 N.J. at 539.
[66 N.J. at 517.]
In Gregory, defendant was successively prosecuted for sale to a police officer of
a single packet of heroin taken from a supply in a bathroom medicine cabinet and then
for possession and possession with the intent to distribute the larger quantity of heroin
contained in the cabinet. In reversing the latter conviction, the Court held that, in
circumstances in which both defendant and the State were fully aware from the outset
of the sale of the small quantity of drugs and possession of the larger quantity, fairness
dictated that the two prosecutions be joined, and that the State's withholding of crimes
for later prosecution smacked of harassment and oppression that required that the
subsequent prosecution be barred. Id. at 518.
To the extent that defendant cites Gregory for the proposition that his motor
vehicle offenses should have been joined with his crimes for purposes of prosecution in
the Superior Court, we agree. See Muniz, supra, 118 N.J. at 326 ("The policies of the
common law strongly commend the joinder of lesser-included, as well as other related,
offenses in a single criminal prosecution.") That was the intent of Directive No. 10-82
that we have discussed previously. However, we do not find the failure to have joined
the two prosecutions, which involved offenses containing admittedly divergent elements,
to have precluded defendant's prosecution in the Law Division on fairness grounds,
particularly since it appears to us that nature of the charges pending in the municipal
court did not automatically trigger notice to the prosecutor in accordance with Directive
No. 10-82; the judge appears to have been unaware of the existence of defendant's
indictment by a grand jury and certainly was not informed of the fact on the record; and
defendant provided a misleading response when queried by the judge regarding the
charges that were holding him in jail. Moreover, we have been presented with no
evidence that would support the contention that defendant reasonably expected, by
pleading guilty to the municipal charges, that he would have resolved his liability for
eluding the police and, in doing so, causing serious injury to a passing bicyclist. We
thus do not find it fundamentally unfair to defendant to have proceeded with his
prosecution in the Law Division.
We reject with little comment defendant's arguments that he was deprived of his
constitutional right to counsel and self-representation and that his guilty pleas were
invalid because his mental condition did not permit him to enter a voluntary, knowing
and intelligent plea with knowledge of its nature and consequences (R. 2:11-3(e)(2)),
which in any event were not preserved for appeal. See R. 3:9-3(f); State v. Szemple,
332 N.J. Super. 322, 328-29 (App. Div.), certif. denied, 165 N.J. 604 (2000).
Defendant states that at a bail hearing before the sentencing judge, he sought
reduction of his $100,000 bail, and he requested alternatively that he be assigned a
different public defender as counsel or that he be afforded the right to represent himself,
with stand-by assistance from counsel. The court denied defendant's request for a
lowered bail, a decision that we find, in light of the factors set forth in State v. Johnson,
61 N.J. 351, 364 (1972) and R. 3:26-1, to have constituted a proper exercise of the
court's discretion. Additionally, the court denied defendant's request for assignment of
new counsel, noting that an indigent defendant retains the right to counsel, but not to
counsel of his choice. See State v. Coon, 314 N.J. Super. 426, 438-39 (App. Div.),
certif. denied, 157 N.J. 543 (1998). The court reserved decision on defendant's request
to represent himself, suggesting that defendant discuss its implications with trial
counsel, a suggestion in which counsel concurred. When defendant next appeared
before the court and entered his pleas of guilty, he was in fact represented by new
counsel, William Fetky, and he stated on the record that he was satisfied with Fetky's
advice in the matter. Further, defendant did not again assert a request to represent
himself. In these circumstances, we find defendant's request to represent himself,
asserted only after he perceived that he would not prevail on his motion for assignment
of new counsel, to have been abandoned.
We likewise reject defendant's contention that as the result of the fact that he
was taking Depakote at the time that his pleas were entered, he lacked the capacity to
enter into them. Defendant's mental condition was fully explored at the time of the plea,
and the plea was then found to be knowingly, voluntarily and intelligently given. We find
nothing in the record to suggest error in the court's determination in that regard, and
defendant has offered nothing on appeal. State v. Lucas, 30 N.J. 37, 73-74 (1959);
State v. Norton, 167 N.J. Super. 229, 232 (App. Div. 1979). We find defendant's further
claim that his pleas in the Law Division lacked a stated factual basis to be frivolous and
unworthy of further comment. R. 2:11-3(e)(2). The trial judge was meticulous in taking
the pleas, obtaining a factual basis for them, in defendant's own words, with a degree of
care that is commendable.
As a final matter, we address defendant's sentence. Although we find no ground
to disturb the court's determination to impose, as the plea agreement recommended,
presumptive concurrent terms for second-degree eluding and aggravated assault while
eluding under standards established by State v. Roth, 95 N.J. 334, 364-65 (1984), we
find as we stated at the outset of this opinion that the court, while honoring the plea
agreement and sentence recommended by the prosecutor, erred in failing to impose an
eight-five percent period of parole ineligibility with a three-year period of mandatory
parole supervision pursuant to N.J.S.A. 2C:43-7.2 as part of defendant's sentence on
his conviction for aggravated assault pursuant to N.J.S.A. 2C:12-1b(6). Accordingly, we
remand the matter to permit defendant to accept an aggregate sentence of seven years
with a legal period of parole ineligibility pursuant to NERA, to negotiate a new sentence
recommendation or to withdraw his plea. State v. Smith, 372 N.J. Super. 539, 543
(App. Div. 2004).

The matter is remanded for further proceedings in accordance with this opinion.