For modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. Opposed -- None. The opinion of the Court was delivered by Mountain, J.
[61 NJ Page 316] Defendant was indicted for murder under N.J.S.A. 2A:113-1 and 2A:113-2. Claiming double jeopardy, he moved to dismiss the indictment pursuant to R. 3:10-2. The trial court, in a written opinion reported at 114 N.J. Super. 360 (Law Div. 1971) denied the motion but at the same time refused to permit the State to proceed upon the theory of a felony-murder, directing that "the proofs shall be limited and directed towards the direct establishment of all the elements of a first degree Murder." Defendant moved for leave to appeal to the Appellate Division from the denial of his motion to dismiss and the State moved for leave to appeal from so much of the order as
precluded it from proceeding upon the theory of felony-murder. Leave to appeal was granted to both parties; we then certified both appeals before argument in the Appellate Division. R. 2:12-1.
On June 5, 1969, defendant approached Mrs. Fannie Murray, a 74-year-old woman, knocked her to the sidewalk and made off with her pocketbook. Following his apprehension he was indicted on July 29, 1969 for atrocious assault and battery, N.J.S.A. 2A:90-1, assault with intent to rob, N.J.S.A. 2A:90-2, and robbery, N.J.S.A. 2A:141-1. On August 5 he pleaded not guilty to all three counts of the indictment but on October 27 he retracted his plea as to the atrocious assault and battery count and pleaded guilty to that offense. This action was taken pursuant to a plea bargain entered into between the defendant and the prosecutor. When the guilty plea was entered both the court and the prosecutor indicated that in due course the remaining two counts of the indictment would be dismissed. On December 5, 1969, defendant was sentenced to an indeterminate term in the Youth Reception and Correctional Center at Yardville. At the time of sentencing the probation officer advised the court that the prosecutor had recommended dismissal of the remaining counts of the indictment.
On January 23, 1970, Mrs. Murray, the victim of the assault, died from injuries allegedly sustained as a result of the attack. About nine months later, on September 15, 1970, on motion of the prosecutor, the two remaining counts of the indictment, those charging assault with intent to rob and robbery, were dismissed. On October 29, 1970 defendant was indicted for the murder of Fannie Murray.
Following oral argument this Court remanded the matter to the Law Division to determine (1) whether at the time of the plea bargain the parties were aware of the possibility that Fannie Murray might die, and if so whether the plea bargain was intended to be a final disposition of the entire matter regardless of whether or not the victim survived, and
(2) what was intended by the prosecutor and the court in dismissing the remaining two counts of the indictment on September 15, 1970.
From the record made on remand we are satisfied that the defendant, at the time of the plea bargain, had been made well aware by his then counsel that Mrs. Murray was likely to die. He was, in fact, advised by counsel that if he had committed the crime it would be to his advantage to plead guilty to a count in the indictment -- assuming the prosecutor would agree -- as this would probably preclude a later prosecution for murder. Defendant accepted this advice and his attorney accordingly conferred with an assistant prosecutor, with whom it was arranged that a guilty plea would be entered to the count charging atrocious assault and battery, with the understanding that the other two counts would then be dismissed. Nothing was said as to the possibility that Mrs. Murray might die. At the time the victim was being cared for in a nearby nursing home, and her state of health could have been readily ascertained by the prosecutor. This, however, was not done, and it is clear that at the time of the bargain and when defendant's guilty plea was accepted, neither the prosecutor nor the court was conscious of the fact that Mrs. Murray's condition was probably fatal.
It was also made clear from the record on remand that in September, 1970, when the court, upon the prosecutor's motion, dismissed the counts of the indictment charging robbery and assault with intent to rob, at least the prosecutor was fully aware that the victim had died the previous January; it is not certain whether the judge who granted the motion to dismiss did or did not know that this had occurred. The dismissal of these charges concededly represented an act on the part of the prosecutor to which he felt obliged by virtue of his agreement with defendant.
We first consider defendant's contention that having accepted his plea of guilty to the charge of atrocious assault and battery the State, under principles of double jeopardy, thereby rendered itself unable to indict and try defendant at
some later time for the crime of murder. In his opinion below, Judge Rauffenbart carefully reviewed many of the pertinent authorities in this State that deal with the problem of double jeopardy. He noted that our courts have employed three different and distinct tests to determine whether a defendant is being twice placed in jeopardy. These may, for convenience, be referred to as the "same transaction" test, the "lesser included offense" test and the "same evidence" test. After discussing each of these, the opinion goes on to point out that apparently no decision in this jurisdiction has squarely decided the question as to ...