A municipal court rejected defendant's substantial double jeopardy claim. Leave to appeal that interlocutory order is granted pursuant to R. 3:24(a).
In January 1981 the State filed a complaint in municipal court charging defendant with selling an alcoholic beverage to a minor, in violation of N.J.S.A. 33:1-7. Four trial dates were scheduled between February 19 and May 16, 1981, and on each occasion adjournments were granted at the State's request because it was unable to proceed.
On May 21, 1981 a part-time municipal prosecutor began presentation of the State's case. After his only witness had
testified, the prosecutor offered in evidence a certification of the Director of the Division of Alcoholic Beverage Control that the contents of the drink had been analyzed by a graduate chemist regularly employed by the Division and had been found to contain alcohol. Although such certifications are generally admissible (N.J.S.A. 33:1-37), defendant objected because despite previous discovery orders the State had failed to supply him with a copy of the certification in advance of trial. Defendant took the position that under those circumstances he was entitled to cross-examine the chemist. Over defendant's objection, the municipal judge then granted the State's request that the trial be continued.
On June 18, 1981, the next scheduled date, the prosecutor failed to appear. His associate obtained another continuance without offering any excuse for the State's inability to proceed. The judge indicated that any further delays would result in dismissal.
On September 3, 1981 the prosecutor again failed to appear. Another municipal prosecutor reported to the court that she had spoken to the trial prosecutor the night before. He claimed to be unaware of the September date and said he would not come to court since he had made plans to take a day off from work. At defendant's request, the municipal judge dismissed the complaint.
Twenty-six days later the State filed two complaints against defendant, one containing the identical charge previously dismissed and the other charging a similar sale which occurred at the same time and place and which was known to the State when the original charge was filed. The municipal court judge transferred the complaints to another judge for some reason not indicated in the record. The latter judge's refusal to dismiss these subsequent complaints is the subject of defendant's appeal.
The State concedes the applicability of double jeopardy standards to a trial commenced in a municipal court, State v. O'Keefe, 135 N.J. Super. 430 (Law Div. 1975), but contends that a
second trial is permissible here because in the initial proceedings the court did not determine guilt or innocence and the dismissal was at defendant's request. The defendant demands finality, claiming that prosecutorial misconduct bars a second trial. The State admits that "the conduct of the prosecuting attorney should not be condoned." Indeed, his intentional and wholly unjustifiable decision not to appear clearly constituted contempt of court. In re Yengo, 84 N.J. 111, 123-26 (1981). Nonetheless, the State asserts that his actions were not sufficiently egregious for double jeopardy to apply.
A defendant is "generally entitled to have a trial proceed to its conclusion, [and] to be free from the harassment of successive prosecutions." State v. Lynch, 79 N.J. 327, 340 (1979). A dismissal, as here, unrelated to guilt or innocence, is the functional equivalent of a mistrial. Id. 79 N.J. at 341. When a mistrial results from good faith prosecutorial error and is required as a matter of manifest necessity or is granted at defendant's request, there is no bar to retrial. State v. Farmer, 48 N.J. 145 (1966); United States v. Jorn, 400 U.S. 470, 486, 91 S. Ct. 547, 557, 27 L. Ed. 2d 543, 557 (1971). However, when the circumstances bespeak bad faith, inexcusable ...