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State v. Gallegan

Decided: December 20, 1989.


For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.


Stripped of its procedural prolixity, the central question in this appeal is whether a determination by a municipal court judge to adjourn the continued trial of a case because of the unavailability of the municipal prosecutor who had tried the earlier portions of the case constituted a termination of the trial, thus barring renewal of the trial under principles of double jeopardy. We hold that principles of double jeopardy do not require that result, and therefore reverse the contrary judgment below.

The case presents in many ways the converse of State v. Stani, 197 N.J. Super., 146 (App.Div.1984). In that case the trial court declared a mistrial when the State was unprepared to proceed. On appeal of an attempt to retry the defendant, the court held that if the trial court erred in not granting a postponement as requested by the State, it afforded no excuse for stripping defendant of his constitutional rights:

If there be any essence to the doctrine of jeopardy, it must be that the State may not retreat from the field when its case turns sour and then be permitted to sally forth on a future day before a new jury when its case is refreshed and reinforced. [ State v. Stani, supra, 197 N.J. Super. at 151 (citing United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 554, 27 L. Ed. 2d 543, 553 (1971), and Downum v. United States, 372 U.S. 734, 737, 83 S. Ct. 1033, 1035, 10 L. Ed. 2d 100, 103 (1963)).]

But in this case the State did not "retreat from the field." Although it would have preferred to have the same prosecutor try the continued case, it was prepared to proceed. That the court itself preferred to proceed with the original prosecutor did not in any sense constitute a termination of the proceedings. No fair appraisal of this record can lead us to the conclusion that the trial court's ruling "reflected an adjudication on the merits * * * [or that the] case was over."' State v. Lynch, 79 N.J. 327, 343

(1979). The trial court may have made an erroneous decision to adjourn the case, but there is a difference between adjourning a case and ruling that the case is over.


The case arises because of an unavoidable tension between our current governmental structure of part-time municipal courts and prosecutors and the ever-increasing importance of municipal court cases. Many of our municipal courts, like this one, conduct night sessions of court, partly as a convenience to the public. It is sometimes impossible to finish a contested case in a single session of court. This was a complex and important case. Delay in the disposition of this case was caused by its relationship to other proceedings that resulted in various interlocutory appeals by the defendants, which made the trial even more complex. The case concerns two unrelated criminal incidents involving defendants, William Gallegan and William O'Hagen, which were originally scheduled to be tried together in Dover Township Municipal Court on October 16, 1986. The first incident occurred on July 20, 1986, when a Dover Township officer signed two complaints against Gallegan. The first complaint charged Gallegan with possession of fewer than twenty-five grams of marijuana in violation of N.J.S.A. 24:21-20a(4) (now repealed), and physical interference with the administration of the law in violation of N.J.S.A. 2C:29-1. The second complaint charged Gallegan with possession of cocaine in violation of N.J.S.A. 24:21-20a(1) (now repealed), an indictable offense. However, on August 14, 1986, the Ocean County Prosecutor's Office downgraded the cocaine charge to the disorderly-persons offense of attempting to use a controlled dangerous substance in violation of N.J.S.A. 24:21-20b (now repealed) and 24:21-24. This matter was then remanded for adjudication to the Dover Township Municipal Court.

The second incident occurred shortly thereafter on August 25, 1986, when Gallegan and O'Hagen were involved in an

automobile accident on the Garden State Parkway. In the aftermath of the accident, a State trooper issued two summonses to O'Hagen, charging him with driving while intoxicated in violation of N.J.S.A. 39:4-50 (DWI), and careless driving in violation of N.J.S.A. 39:4-97. Another trooper charged both Gallegan and O'Hagen with consuming alcohol in a motor vehicle contrary to N.J.S.A. 39:4-51a.

O'Hagen was seriously injured in the accident, and required medical treatment at Community Memorial Hospital in Dover Township. Gallegan accompanied O'Hagen to the hospital and created a disturbance. As a result of the disturbance, a Dover Township officer signed a complaint against Gallegan, charging him with assault contrary to N.J.S.A. 2C:12-1a(1) and resisting arrest in violation of N.J.S.A. 2C:29-2a. One of the State troopers originally at the scene of the accident also signed a complaint against Gallegan, charging him with obstructing the administration of the law in violation of N.J.S.A. 2C:29-1. While O'Hagen was at the hospital, two vials of blood were drawn from him to be tested for alcohol content. The test showed a blood-alcohol content of .232%.

All of the above matters arising from the July 20 (hereafter "drug") and August 25 (hereafter "DWI/assault") incidents were scheduled for trial in Dover Township Municipal Court on October 16, 1986. On that evening, defense counsel requested an adjournment of the drug charges involving Gallegan in order to complete discovery. The prosecutor did not object, and those matters were accordingly adjourned. The DWI/assault charges concerning both defendants were also adjourned. Both sides continue to dispute who actually requested the adjournment concerning the DWI/assault matters. The prosecution maintains that defense counsel asked for a continuance. Defense counsel maintains that he was ready and willing to proceed but that the court adjourned the matters at the prosecutor's request, indicating that both matters would be scheduled for another date. Regardless of who actually requested

the adjournment, the court agreed with the request and adjourned all the matters for rescheduling.

The matters were next called for trial on November 20, 1986. At that time, the prosecutor requested an adjournment of the DWI/assault charges against both defendants because several witnesses who had been subpoenaed were not present. The absent witnesses included the State trooper who had signed the complaint involving the consumption of alcohol while operating a motor vehicle, the doctor who had drawn blood from O'Hagen for the blood-alcohol test, and the local officer, who was not present due to a work-related injury. Defense counsel requested that the charges be dismissed because an adjournment would violate defendants' right to speedy trial and would subject them to double jeopardy. Rather than granting defense counsel's request for a dismissal, the court adjourned the DWI/assault charges, with the exception of the consumption-of-alcohol complaints under N.J.S.A. 39:4-51a. The court was "troubled" by the State trooper's absence and unexplained failure to appear in court in response to the subpoena. It therefore directed verdicts of acquittal on the consumption-of-alcohol complaints against both defendants.

The drug complaints against Gallegan were the next matters on the calendar that evening. Defense counsel challenged the court's jurisdiction on these charges. When the court rejected defense counsel's challenge, counsel requested a stay so that he could take an interlocutory appeal. That appeal was filed on December 1, 1986, and included both the denial of the motion to dismiss the DWI/assault charges and the rejection of Gallegan's jurisdictional argument concerning the drug charges. On May 11, 1987, the Superior Court affirmed the decision of the court below and remanded the charges to the municipal court.

The drug charges against Gallegan were finally adjudicated on June 25, 1987. The remaining DWI/assault charges were called for trial on July 30, 1987. On that evening, the prosecution presented two witnesses: the State trooper present at the

accident scene and the doctor who had taken the blood sample. At 12:10 a.m. on July 31, defense counsel requested that the matter be continued on another date due to the late hour. The court granted that request. It is the policy of our court system not to conduct evening trial sessions in municipal courts after midnight. See ...

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