Post conviction granted. State v. Colon, ____ N.J.
Super. ____ (App. Div. 2005).
**************************************
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6531-02T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ORLANDO COLON,
Defendant-Appellant.
_________________________________________________
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.
2
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
PAYNE, J.A.D.
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
excessive.
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.
I.
3
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
4
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
5
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.
2B:12-18.
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
(continued)
6
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
(continued)
in the sentence had been previously served at the time
sentencing occurred.
7
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;
correct?
THE DEFENDANT: Correct
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?
THE DEFENDANT: No.
MR. FETKY: Were you driving recklessly?
THE DEFENDANT: Yeah.
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
recklessly?
8
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?
THE DEFENDANT: Uh-hum.
MR. FETKY: Did you cross the double yellow line
maybe?
THE DEFENDANT: Yeah.
MR. FETKY: Did there come a point in time, where
you hit someone on a bicycle?
THE DEFENDANT: Yes.
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 DEFENDANT: No.
* * *
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;
correct?
THE DEFENDANT: Correct. I took off anyway. That
is correct.
MR. SEWICH: That happened around noontime?
Sometime like 10:50 in the morning; correct?
THE DEFENDANT: Correct.
MR. SEWICH: You were fleeing the police on Smith
Street in Perth Amboy; correct?
THE DEFENDANT: Correct.
MR. SEWITCH: That is a main street in Perth
Amboy? A main business district; correct?
THE DEFENDANT: 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?
THE DEFENDANT: Correct.
9
MR. SEWITCH: Where the collision occurred; is that
correct?
THE DEFENDANT: Correct.
MR. SEWITCH: When the crash occurred on Maple
Street, you were on a one-way street; is that correct?
THE DEFENDANT: Correct.
MR. SEWITCH: You were going the wrong way on
Maple Street when the collision occurred?
THE DEFENDANT: Correct.
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:
POINT I THE TRIAL COURT ERRED IN REFUSING
TO DISMISS THE INDICTMENT ON DOUBLE
JEOPARDY GROUNDS.
POINT II THE TRIAL COURT VIOLATED
DEFENDANT'S CONSTITUTIONAL RIGHTS
TO COUNSEL AND SELFREPRESENTATION
AND IMPOSED AN
EXCESSIVE BAIL.
POINT III DEFENDANT'S GUILTY PLEAS TO
ELUDING, AGGRAVATED ASSAULT AND
THEFT BY UNLAWFUL TAKING ARE
INVALID.
POINT IV THE SENTENCE IMPOSED BY THE TRIAL
COURT IS EXCESSIVE.
II.
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
10
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).
11
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.
12
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
13
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
14
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
prosecutor.
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,
15
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,
16
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
17
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.
18
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
supplied).]
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
19
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
20
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
21
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.
22
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,
23
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.
III.
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,
24
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
25
the pleas, obtaining a factual basis for them, in
defendant's own words, with a degree of
care that is commendable.
IV.
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.
