On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Pressler and Baime. The opinion of the court was delivered by Baime, J.A.D.
[248 NJSuper Page 516] We granted defendant's motion for leave to appeal from the Law Division's denial of his application to dismiss a disorderly persons complaint charging him with assault and battery (N.J.S.A. 2C:12-la(1)). A jury had acquitted defendant previously of contempt involving essentially the same allegations as those contained in the disorderly persons complaint. We are satisfied from our review of the record of the first trial that the assault and battery alleged in the disorderly persons complaint is the same conduct for which defendant has already been prosecuted and acquitted. We also find that the evidence the State intends to present in the assault and battery prosecution is identical to that used previously in the contempt case. We thus hold that defendant has once been placed in jeopardy and cannot now be prosecuted for the same offense.
The charges against defendant arose out of a bitter labor dispute between George Harms Construction Company (Harms) and Local 825 of the International Union of Operating Engineers concerning a construction project on Route 35. On August 15, 1988, Harms obtained a restraining order containing 11 paragraphs restricting the picketing activities of Local 825 and defendant, its business agent. Paragraph 10 prohibited the union and defendant from "committing any acts of violence, coercion, intimidation, threats or any unlawful action that directly or indirectly ha[d] the effect of causing Harms' employees . . . not to enter [the] construction site." It is undisputed that defendant was aware of the restraining order and its contents.
On August 17, 1988, defendant became engaged in an altercation with Thomas Hardell, Harms' construction supervisor. Although the facts were hotly disputed, Hardell claimed that he displayed a copy of the restraining order and asked defendant whether he intended to interfere with his right to enter the job site. Defendant allegedly uttered an expletive and kicked Hardell in the groin. According to Hardell, other union members then participated in the attack.
Based upon these allegations and others not germane to this appeal, the Chancery Division issued an order to show cause charging defendant and the union with contempt and directing the Monmouth County Prosecutor to prosecute the case. Pursuant to N.J.S.A. 2A:15-56, the contempt charges were tried by a jury. Following a protracted trial, the jury found defendant and the union not guilty. In its special verdict, the jury acquitted defendant of violating paragraph 10 of the restraining order.
After the jury's verdict, defendant moved to dismiss the disorderly persons complaint which charged him with causing bodily injury to Hardell by kicking him in the groin. The municipal court held that the double jeopardy clause barred prosecution of the assault and battery complaint. However,
the State appealed to the Law Division which reversed the municipal court's order. Focusing on the statutory elements, the judge reasoned that each offense required proof of a fact that the other did not and that the evidence to be presented by the State in its attempt to prove assault and battery overlapped that submitted in the contempt trial but was not identical. The judge also determined that the second prosecution was not barred by collateral estoppel principles. We now reverse the order of the Law Division.
The Fifth Amendment proscribes multiple prosecutions for the same offense. While no one currently questions the great worth of this constitutional safeguard, difficulty arises in determining just when we are dealing with the "same offense" within the contemplation of that protection. In State v. Fraction, 206 N.J. Super. 532, 503 A.2d 336 (App.Div.1985), we catalogued the varying approaches the courts have adopted in seeking to resolve the problem. Id. at 537-538, 503 A.2d 336. We noted that no single test had achieved universal acceptance, but the tendency was to eschew "technisms and inflexibility in favor of the paramount considerations of fairness and fulfillment of reasonable expectations in the light of the constitutional and common law goals." Id. at 538, 503 A.2d 336 quoting State v. Currie, 41 N.J. 531, 539, 197 A.2d 678 (1964).
More recently, our Supreme Court attempted to clarify the applicable rules pertaining to double jeopardy. See State v. Yoskowitz, 116 N.J. 679, 563 A.2d 1 (1989); State v. DeLuca, 108 N.J. 98, 527 A.2d 1355 (1987), cert. den. 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987); State v. Dively, 92 N.J. 573, 458 A.2d 502 (1983). Synthesizing several United States Supreme Court decisions on the subject, see, e.g., Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980); Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), a two-pronged test was adopted in State v. DeLuca, 108 N.J. at 107, 527 A.2d 1355. The initial test to be applied, commonly known as the Blockburger standard, focuses upon the statutory elements and requires inquiry into "whether
each provision requires proof of an additional fact which the other does not." State v. DeLuca, 108 N.J. at 103, 527 A.2d 1355, quoting Blockburger v. United States, 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309. The Blockburger test is satisfied if each offense requires proof of a fact that the other does not, notwithstanding substantial overlap in the evidence presented. 108 N.J. at 103, 527 A.2d 1355; see also Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); Iannelli v. United States, 420 U.S. 770, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975). The clarity of the Blockburger test became beclouded by the Supreme Court's decision in Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980), where principal scrutiny was given to the nature of the evidence presented in the first prosecution. Citing this approach, our Supreme Court adopted an alternative basis for determining whether multiple prosecutions involve the "'same' offense." 108 N.J. at 107-108, 527 A.2d 1355. The "second prong" of the test is "whether the evidence actually used to establish guilt in the first prosecution is identical to that that will be used in the ...