Carton, Kole and Larner. The opinion of the court was delivered by Larner, J.A.D.
Defendant was charged by the state grand jury in four counts of an indictment with common law bribery (N.J.S.A. 2A:85-1), statutory bribery in connection with government work (N.J.S.A. 2A:93-6), misconduct in office (N.J.S.A. 2A:85-1) and conspiracy to commit misconduct in office (N.J.S.A. 2A:98-1 and 2). After a jury trial he was acquitted on the two bribery counts, with the jury unable to agree on a verdict on the counts alleging misconduct and conspiracy. In view of the jury disagreement, the judge declared a mistrial as to those counts, and the case proceeded to trial before another judge.
The second trial resulted in a verdict of guilty on both counts, and defendant was sentenced to two concurrent terms of 364 days in the Morris County Jail plus a fine of $2,000.
Defendant has set forth in his brief 12 allegations of error which may be more succinctly synthesized as follows: (1) The remaining counts of the indictment should have been dismissed after the first trial because of the plea of double jeopardy and collateral estoppel; (2) the judge erred in permitting evidence of money payments; (3) he erred in permitting evidence of defendant's statement to State Police acknowledging receipt of payments from a co-conspirator; (4) the judge improperly prevented examination by defendant addressed to exculpatory portions of the statement; (5) evidence by way of taped conversations between
coconspirators was admitted prior to proof of existence of the conspiracy; (6) the New Jersey Electronic Surveillance Law was violated and all evidence obtained thereby should have been suppressed; (7) the judge committed errors in the charge; (8) redirect testimony of Donald Young was improperly admitted; (9) defendant was denied a fair trial in that the trial judge erroneously prohibited the introduction of testimony; and (10) defendant's motion for mistrial was erroneously denied.
Defendant rests the double jeopardy plea on the basis that the court at the first trial improvidently granted a mistrial as to the counts for conspiracy and misconduct in office and thereby caused the harassment of a second prosecution, in violation of the constitutional inhibitions against double jeopardy. The suggestion is specious because the mistrial was granted as a result of the inability of the first jury to agree after deliberating for six days. Such a ground for a mistrial is clearly one created by "manifest necessity," and thus fully warranted. United States v. Perez , 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824); see United States v. Dinitz , 424 U.S. 600, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976); Illinois v. Somerville , 410 U.S. 458, 464, 93 S. Ct. 1066, 1071, 35 L. Ed. 2d 425, 431 (1973); State v. Rechtschaffer , 70 N.J. 395, 405-410 (1976); State v. Romeo , 43 N.J. 188 (1964), cert. den. 379 U.S. 970, 85 S. Ct. 668, 13 L. Ed. 2d 563 (1965); State v. Roller , 29 N.J. 339, 344 (1959). Under the circumstances herein defendant has no basis for complaint on double jeopardy grounds.
Alternatively, defendant urges that the undetermined counts should have been dismissed on the ground of collateral estoppel. See Ashe v. Swenson , 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). The basis for defendant's plea of collateral estoppel is focused on the assertion that the not guilty verdict on the bribery charge constitutes a fact determination on an essential issue in the trial of the misconduct and conspiracy counts. See Sealfon
We reject this contention as untenable. The verdict on the bribery counts was a general one and it is therefore impossible to determine the basis for the decision. Appellant does not present any proof from the first trial which establishes any particular fact-finding by the first jury. See State v. Ebron , 61 N.J. 207, 216 (1972). There may be several rationalizations for the verdict which do not necessarily point to the determination of an ultimate fact which is essential for proof of the remaining counts.
Even if we assume, as defendant argues, that the first verdict represents a finding that defendant did not receive money for an unlawful purpose, nevertheless this ultimate fact was not an essential fact in proof of guilt of the charges encompassed by the remaining counts of the indictment, namely, conspiracy and misconduct in office. See Pinkerton v. United States , 328 U.S. 640, 643, 66 S. Ct. 1180, 1181, 90 L. Ed. 1489, 1494 (1946); State v. Begyn , 34 N.J. 35, 48 (1961); State v. Oats , 32 N.J. Super. 435 (App. Div. 1954); State v. Chevencek , 127 N.J.L. 476 (Sup. Ct. 1941). Since the issues of ultimate fact involved in the latter two crimes were not decided by the bribery acquittal the doctrine of collateral estoppel does not apply. See United States ex rel. Triano v. Superior Court of New Jersey , 393 F. Supp. 1061, 1068 (D.N.J.), aff'd 523 F.2d 1052 (3 Cir. 1975), cert. den. 423 U.S. 1056, 96 S. Ct. 787, 46 L. Ed. 2d 645 (1976); State v. Schlue , 129 N.J. Super. 351 (App. Div.) certif. den. 66 N.J. 316 (1974).
There is an additional ground for rejecting the collateral estoppel defense. That defense is inapplicable under the circumstances of this case involving different counts of one indictment, where the retrial is brought about because of the jury disagreement on certain counts. Under such circumstances, the second proceeding necessitated by the justifiable mistrial does not ...