Brody, J.J.D.R.C., Temporarily Assigned.
This is an appeal, on leave granted, from an interlocutory municipal court order entered while defendant was being tried for operating a motor vehicle during the period of the revocation of his driver's license, in violation of N.J.S.A. 39:3-40. As the municipal prosecutor was about to rest his case the judge noted that the State failed to submit any evidence that defendant, in possession of his license on the date of the alleged offense, had been notified of its revocation. Over defendant's objection the judge sua sponte continued the case two weeks to enable the State to investigate and attempt to prove this fact essential to conviction. N.J.S.A. 39:5-30; State v. Hammond, 116 N.J. Super. 244 (Cty. Ct. 1971). Defendant contends that the order permitting the trial to resume under these circumstances places him in jeopardy a second time.
R. 3:24 provides that an appeal may be sought from an interlocutory municipal court order only when such order has been entered before trial. The court will relax this requirement, however, because the jurisdiction of the municipal court to continue the trial is questioned on substantial grounds and because the municipal court judge is holding the trial in abeyance for a determination of the question. R. 1:1-2; State v. Lanahan, 110 N.J. Super. 578, 579 (Cty. Ct. 1970); cf. R. 2:2-3(b).
The conduct of a trial is in the hands of the judge. This includes discretion to grant adjournments before trial and brief recesses or more extended continuances during trial. He has discretion to permit a party, including the State in a criminal trial, to reopen after resting to supply a deficiency in the evidence. If a defendant in a municipal court
is prejudiced by a mistaken exercise of such discretion, his remedy would ordinarily be a trial de novo in the County Court. State v. Menke, 25 N.J. 66 (1957). Because the County Court trial nullifies the municipal court trial, the result is one trial and therefore a single jeopardy. State v. Joas, 34 N.J. 179, 189 (1961).
Nevertheless jeopardy, barring a second prosecution for the same offense, attaches to municipal court proceedings. Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (1970); State v. Dixon, 40 N.J. 180 (1963). The plea of double jeopardy is available to a defendant when the State attempts a second municipal court prosecution of an offense under the Motor Vehicle Act. State v. Francis, 67 N.J. Super. 377, 381 (App. Div. 1961). Should a defendant appeal a conviction resulting from a second prosecution, his claim of double jeopardy, if valid, would not be mooted by a trial de novo in the County Court. The waiver of defects in the record of the municipal court deemed by an appeal to the County Court, R. 3:23-8(c), does not extend to errors of constitutional magnitude. State v. Gillespie, 100 N.J. Super. 71, 85 (App. Div. 1968). The appeal in such a case would not be from a judgment after a trial whose defects could be cured in the County Court. Rather, the appeal would be to vindicate defendant's constitutional right to be immune from trial altogether because of the former jeopardy.
It is therefore appropriate to consider whether resuming the trial of this case would constitute a second prosecution of the defendant. He contends that the judge should have entered a judgment of acquittal for lack of evidence and likens the resumption of the trial after the two-week continuance to an impermissible retrial following a mistrial declared because of prosecutorial neglect. The State views the continuance as a proper exercise of the judge's discretion to conduct the trial in the interest of doing justice.
L. Ed. 2d 335 (1967), the Double Jeopardy Clause of the Fifth Amendment has been made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). In its most recent decision the United States Supreme Court iterated that there is no mechanical formula to determine whether a declaration of mistrial over the objection of defendant in the course of a criminal trial precludes retrial. Illinois v. Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973). A defendant's constitutional right to have the charges against him tried in one proceeding is to be weighed heavily on the balance against the public's interest in seeing that a criminal prosecution ends in a "just verdict." A judge may declare a mistrial without thereby immunizing the defendant from further prosecution only where there is a "manifest necessity" to abort the trial to prevent the defeat of the "ends of public justice." Illinois v. Somerville, supra at 459, 93 S. Ct. 1066.
Recent opinions strike the balance with debatable consistency. On one point, however, there is general agreement: retrial is barred if the only reason for declaring a mistrial is to afford the State an opportunity to strengthen its case by correcting inadequacies resulting from prosecutorial neglect or oversight.
In Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963) a harried assistant United States Attorney could not produce his first witness after the jury was impaneled. He had failed to issue a subpoena in reliance upon assurances by the witness' wife that the witness would attend. The court held that a mistrial granted under these circumstances invalidated a retrial commenced two days later:
The situation presented is simply one where the District Attorney entered upon the trial of the case without sufficient evidence to convict. This does not take the case out of the rule with reference ...