On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by Handler, J. Schreiber, J., concurring. Schreiber, J., concurring in the result.
The New Jersey Code of Criminal Justice directs that its procedural provisions shall govern any criminal case involving a crime committed prior to the date upon which the Code became effective and pending on that date. N.J.S.A. 2C:1-1c. The Code also imposes a statutory bar to the criminal prosecution of conduct that was the basis of a conviction or acquittal in a prior federal criminal proceeding. N.J.S.A. 2C:1-11a. The novel question presented by this case is whether this statutory bar constitutes a "procedural provision" that can be applied to bar prosecution of a criminal case that was pending when the New Jersey Code of Criminal Justice became effective.
The defendant seeking the benefit of the statutory bar in this case is James Goodman who was charged with committing a series of State and federal crimes. He was first indicted by the Essex County Grand Jury on January 19, 1978 for possession of a knife. He was next indicted in the United States District Court on February 1, 1978 for the federal crimes of bank robbery and assault with a deadly weapon. Goodman was then indicted by the State on March 20, 1979 for murder while armed, armed robbery, atrocious assault and battery, and conspiracy to commit robbery. Finally, on March 27, 1979, defendant was charged by the State with robbery, robbery while armed, and possession of a weapon. This last series of charges was based on the identical conduct that was the basis of the federal bank robbery indictment of February 1, 1978.
On June 4, 1979 defendant appeared in federal district court and pleaded guilty to the federal bank robbery charge. The plea bargain contemplated that the associated charge of assault with a deadly weapon would be dismissed at sentencing. Fourteen days later, on June 18, 1979, defendant, as part of a plea bargain, entered retraxit pleas of guilty to all of the State charges arising out of the bank robbery and the State agreed to the imposition of concurrent sentences on these charges and to the dismissal of all other outstanding charges. Thereafter, on August 20, 1979, defendant was sentenced by the federal court for the bank robbery to a term of 10 years in prison. On September 26, 1979 defendant was sentenced by the State court on the charges relating to the bank robbery. He received concurrent terms aggregating seven to ten years, which, however, were to run consecutively to the federal prison term.
A notice of appeal was filed on December 4, 1979. During the pendency of the appeal, on July 8, 1980, defendant moved for a limited remand on the issue of whether his State conviction and sentence were barred under N.J.S.A. 2C:1-9 of the Code on the theory that the statutory bar against dual prosecutions constituted a procedural provision applicable to his case under N.J.S.A. 2C:1-1. The State contested the remand, asserting, nonetheless, that the appropriate Code reference should have been to N.J.S.A. 2C:1-11, which bars successive prosecutions by the federal and state governments. The motion was granted on August 11, 1980, with the direction that the court below consider defendant's claims under "all applicable provisions" of the new Code.
The remand hearing was held on December 23, 1980. On January 9, 1981 the judge*fn1 issued a written decision, refusing to apply the jeopardy bar of N.J.S.A. 2C:1-11 to defendant's case. The court determined that the jeopardy bar of N.J.S.A. 2C:1-11a
was a procedural provision of the Code and that defendant's case was "pending" on the effective date of the enactment of the Code. He noted, however, that the procedural provisions of the Code by the terms of N.J.S.A. 2C:1-1c(1) govern pending criminal cases only if "justly applicable." He concluded that the statutory bar was not "justly applicable" because defendant had knowingly and voluntarily entered into a plea agreement that entailed the dismissal of a number of other charges, including murder while armed, and he was fully aware of the possibility of consecutive state and federal sentences.
On May 13, 1981 defendant again moved before the Appellate Division for a limited remand, based on the judge's actions in taking testimony without affording defendant the opportunity to be present or give his own testimony. The Appellate Division denied the motion on June 2, 1981 and later affirmed defendant's convictions and sentence substantially for the reasons expressed in the trial court's opinion. Defendant then successfully petitioned this Court for certification. 91 N.J. 181 (1982).
N.J.S.A. 2C:1-11, the successive jeopardy bar, which defendant seeks to invoke to bar his prosecution, provides:
When conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States, a prosecution in the District Court of the United States is a bar to a subsequent prosecution in this State under the following circumstances:
a. The first prosecution resulted in an acquittal or in a conviction, or in an improper termination as defined in section 2C:1-9 and the subsequent prosecution is based on the same conduct, unless (1) 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 or (2) the offense for which the defendant is subsequently prosecuted is intended to prevent a substantially more serious harm or evil than the offense of which he was formerly convicted or acquitted or (3) the second offense was not consummated when the former trial began . . .
N.J.S.A. 2C:1-1, which directs the application of the Code's procedural provisions to pending criminal prosecutions, states:
c. In any case pending on or initiated after the effective date of the code involving an offense committed prior to such date:
(1) The procedural provisions of the Code shall govern, insofar as they are justly applicable and their application does not introduce confusion or delay . . .
We now hold that the statutory jeopardy bar contained in N.J.S.A. 2C:1-11 of the Code is a procedural provision within the meaning of N.J.S.A. 2C:1-1c(1) and that it can be applied to bar criminal prosecutions that were pending on the effective date of the enactment of the Code. We also hold that this statutory jeopardy bar, under the standards of N.J.S.A. 2C:1-1c(1), is not "justly applicable" to defendant in the circumstances of this case, and, further, that its application would introduce undue confusion and delay. We therefore conclude that N.J.S.A. 2C:1-11 cannot be invoked to bar defendant's conviction and sentence, and, accordingly, affirm the judgment of the Appellate Division.
We note, at the outset, the absence of any dispute that on the effective date of the Code's enactment, September 1, 1979, defendant's criminal prosecution was still pending. He had been found guilty of the charges relating to the bank robbery as a result of his guilty plea on June 18, 1979. He had not, however, been sentenced on these charges on September 1, 1979. In State v. Molnar, 81 N.J. 475 (1980), we viewed the term "pending case" to embrace undecided appeals as well as ongoing trials. Id. at 488. Clearly defendant's case was "pending" under N.J.S.A. 2C:1-1c(1) on the effective date of the Code.
It is particularly important to make clear at the outset that this case does not pose a confrontation between the judiciary and other branches of government as to whether the particular exercise of a governmental power properly belongs to the judicial branch to the exclusion of the others. E.g., Winberry v. Salisbury, 5 N.J. 240 (1950), cert. den., 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950); Busik v. Levine, 63 N.J. 351 (1973); State v. Leonardis, 71 N.J. 85 (1976) (Leonardis I); State v. Leonardis, 73 N.J. 360 (1977) (Leonardis II). Nor does it entail the identification or proper classification of ...