On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication December 27, 1997.
Before Judges Long, Stern and Kleiner. The opinion of the court was delivered by Stern, J.A.D.
The opinion of the court was delivered by: Stern
The opinion of the court was delivered by
The State appeals from the dismissal of an indictment charging defendant with possession of heroin, N.J.S.A. 2C:35-10a(1) (count one), and possession of heroin with intent to distribute, N.J.S.A. 2C:35-5b(3). The indictment was dismissed after the trial Judge declared a mistrial, at defendant's request, because of the State's violation of a sequestration order. The Judge concluded that the mistrial occurred as a result of the prosecutor's "inexcusable neglect," and that the concept of double jeopardy barred a retrial. We reverse.
For present purposes, we adopt the defendant's version of the facts:
Prior to trial, [the Judge] issued a sequestration order to be applicable to all the State and defense witnesses. On the first day of trial, the State called Sergeant Neil Minovich of the Newark Police Department who testified as to the events surrounding the arrest of the defendant. [We have not been supplied with this portion of the transcript.] On the second day of trial, the State called Police Officer W. Mehalaris to the stand. This officer also testified to the events leading up to the arrest.
During cross-examination, defense counsel began questioning the witness as to certain statements that appeared to resemble too closely the prior testimony of Sergeant Minovich. In particular, defense counsel asked the speed the officer was traveling when he first passed the Respondent. Officer Mehalaris testified that they were driving around twenty-five to thirty miles per hour which was the exact response given by Sergeant Minovich when he testified a day earlier.
The following questions were next asked by defense counsel:
Q. When was the last time you discussed this case with any of your colleagues?
A. Probably yesterday with the prosecutor. Q. When yesterday with the prosecutor?
Q. Yesterday afternoon? You mean Wednesday afternoon?
Q. Were your colleagues present when you ...