Judges Brody, Stern and Keefe.
The opinion of the court was delivered by: Stern, J.A.D.
This appeal by the State, pursuant to leave granted, presents the interesting question of whether a Superior Court judge hearing non-indictable motor vehicle complaints simultaneously with the jury trial on related indictable charges must render his or her findings on the non-indictables when the jury cannot reach a verdict on the indictables. After declaring a mistrial on the indictable charges due to a "hung jury," the trial judge announced her intention to render her findings (under R. 1:7-4). Perceiving the possibility of a double jeopardy or other preclusion to retrial of the indictable offenses, the State obtained a stay from the trial judge of her decision to render findings, and we granted leave to appeal.
It is undisputed for purposes of this appeal that defendant was involved in a one car accident on June 22, 1992. A passenger in the pickup truck defendant was driving was killed when defendant hit a tree and the truck flipped over. Another passenger was seriously injured. Defendant was indicted for death by auto, contrary to N.J.S.A. 2C:11-5, and aggravated assault by auto, in violation of N.J.S.A. 2C:12-1c. The defendant was also charged in separate complaints with driving while intoxicated, contrary to N.J.S.A. 39:4-50, and careless driving, in violation of N.J.S.A. 39:4-97.
Pursuant to R. 3:15-3, a Superior Court judge joined the indictable offenses with the motor vehicle complaints for trial. The indictable offenses were tried before a jury, and pursuant to State v. Muniz, 118 N.J. 319, 571 A.2d 948 (1990), the judge simultaneously sat as a municipal court judge hearing the motor vehicle charges. After deliberating, the jury reported that it could not reach a verdict, and the judge declared a mistrial with regard to the indictable offenses. *fn1 The State then requested the judge to reserve judgment on the motor vehicle charges pending retrial of the indictment. As noted, the judge denied the State's request, but granted a stay of her decision, and we granted leave to appeal.
The issues presented by the appeal require consideration of R. 3:15-3 which provides, in relevant part:
3:15-3. Trial of Criminal Offenses and Lesser, Related Infractions
(a) Joinder of Criminal Offense and Lesser Related Infraction.
(1) Except as provided in paragraph (b), the court shall join any pending non-indictable complaint for trial with a criminal offense based on the same conduct or arising from the same episode.
(2) Regardless of whether a jury sits as the finder of facts with respect to the criminal offense, and unless the complaint charges a disorderly persons offense or a petty disorderly persons offense that must be submitted to the jury in accordance with the provisions of N.J.S.A. 2C:1-8(e), the Superior Court judge shall sit as a municipal court judge on the complaint and shall render the verdict with respect to the complaint on the proofs adduced in the course of trial.
(3) If evidence is held to be admissible with respect to the trial of the complaint but inadmissible with respect to the trial of the criminal offense, the court shall hear that evidence outside of the jury's presence and may, in its discretion, postpone such hearing until the jury has retired to deliberate. The court shall not render its verdict on the complaint until the jury has rendered its verdict or until the jury has been dismissed. (Emphasis added.)
The specific question before us relates to the impact of the last sentence of R. 3:15-3a(3). R. 3:15-3 was proposed by the Criminal Practice Committee ("the Committee") in 1988 "in light of the [Supreme] Court's opinion in State v. DeLuca, 108 N.J. 98, 527 A.2d 1355, cert. den. 484 U.S. 944, 108 S.Ct. 331, 98 L.Ed.2d 358 (1987), holding that the municipal infraction of drunk driving should be joined for trial with the criminal offense of death by auto so as to obviate the double jeopardy problems which may arise in the absence of joinder." Report of the Supreme Court Committee on Criminal Practice, 122 N.J.L.J. 116 (1988) [hereafter "Committee Report "]. The Committee was concerned that the potential double jeopardy problems discussed in DeLuca extend beyond the specific charges which were implicated in that opinion and may arise, regardless of the offenses involved, whenever there is a failure to join the trial of the criminal offense with the trial of any lesser or related non- indictable infraction. [Ibid.]
The Committee, however, foresaw the possibility of having a hung jury at the trial of the indictable offenses and specifically addressed that consequence with respect to the non-indictable charges. It, therefore, proposed R. 3:15- 3(a)(3) in the form ...