[192 NJSuper Page 612] This is an appeal from dismissal on the ground of double jeopardy of three simple assault charges filed in Maple Shade
Township Municipal Court. The municipal judge concluded that under N.J.S.A. 2C:1-9(a) said complaints should be dismissed because he had made a prior determination that there was insufficient evidence presented against defendant, on identical charges, to warrant conviction. The special prosecutor, Cf. Rule 7:4-4(b), appealed pursuant to Rule 3:24(b).*fn1 The following facts have been developed on the record:
Assault charges were originally filed against defendant on September 15, 1982 by complainant, Paul Bellino, his wife, Jennie Bellino, and their emancipated son, Gary. The trial, originally scheduled for October 18, 1982, was continued four times; twice at the request of defendant and twice at the request of the special prosecutor engaged by complainants. The matter was finally set down for trial on April 25, 1983, and the court made it clear there would be no further continuances.
On that date the case was called and defendant entered his plea of not guilty. The special prosecutor, however, was unable to proceed with any evidence due to the failure of any of the three complaining witnesses to appear. The judge, after hearing that the special prosecutor had made repeated calls to the complaining witnesses that evening then dismissed the case.*fn2 At that point defendant and his attorney inferably left the courtroom.
Shortly after the dismissal, two of the complaining witnesses, Mr. and Mrs. Bellino, did then appear in court. Bellino stated he
was delayed because he had had to go to the doctor. According to a letter from counsel and a physician's certificate provided the court, Bellino later claimed that he had fallen down stairs and visited the doctor on April 26, 1983. Besides the apparent contradiction between Bellino's initial statement in court and the subsequent letter, no explanation has been forthcoming as to why Mrs. Bellino or her son, Gary, neither appeared nor attempted to contact the court.
On May 31, 1983, a month following the dismissal, identical complaints were filed against defendant. On June 20, 1983, the municipal judge dismissed the new complaints citing N.J.S.A. 2C:1-9(a) and stressing, in particular, the continued anxiety which defendant had suffered due to the repeated delays in prosecution of the case.
On this appeal the State argues that no witnesses had been sworn nor any judgment of acquittal entered on the merits of the case. For the reasons discussed below I reject such a rigid interpretation of N.J.S.A. 2C:1-9(a) and once again dismiss the complaints on the ground of double jeopardy.
Prior to the adoption of N.J.S.A. 2C:1-9, jeopardy would not attach in a non-jury proceeding until the first witness was sworn. State v. Lynch, 79 N.J. 327, 341 (1979) The new statute, however, allows claims of jeopardy not only for improper termination of prosecution after the first witness is sworn but also for a determination that there was insufficient evidence to warrant a conviction. Compare N.J.S.A. 2C:1-9(d) with N.J.S.A. 2C:1-9(a). The statute codifies the inherent equitable considerations with which the New Jersey courts have balanced the public interest to have a trial proceed on the merits against the state and federal constitutional protection afforded defendants to be free from the harassment of successive prosecutions. Cf. State v. Rechtschaffer, 70 N.J. 395 (1976); State v. Laganella, 144 N.J. Super. 268 (App.Div.1976) app. dism. 74 N.J. 256 (1976), State v. Jones, 183 N.J. Super. 172 (App.Div.1982); State v. O'Keefe, 135 N.J. Super. 430 (Law Div.1975), State v. Nappo, 185 N.J. Super. 600
(Law Div.1982). Under N.J.S.A. 2C:1-9(a) each case must turn on its own facts rather than the far more simple but rigid determination of when jeopardy attaches. State v. Laganella, supra 144 N.J. Super. at 287. In applying the principles of double jeopardy, therefore, "the primary considerations should be fairness and fulfillment of reasonable expectations in the light of the constitutional and common law ...