Before Judges Muir, Jr., Kestin, and Steinberg.
The opinion of the court was delivered by: Steinberg, J.s.c., t/a
 Submitted: December 17, 1997
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
On this appeal, we are confronted by issues of whether double jeopardy or fundamental fairness preclude retrial of defendant on drug trafficking charges after the trial court set aside defendant's conviction for the failure of the investigating police to apprise the prosecutor of the use of a confidential informant in the events giving rise to the indictment. The police failure prevented prosecutorial compliance with R. 3:13-3 discovery or, alternatively, prevented the prosecutor from seeking a protective order under R. 3:13-3(f). We conclude neither double jeopardy nor the fundamental fairness doctrine preclude retrial. Consequently, we affirm the trial Judge's order denying defendant's motion to dismiss the indictment against him.
A Cumberland County grand jury indicted Gerone Wright (defendant), along with his brother, co-defendant Alfred Wright, for third-degree possession of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS (cocaine) with intent to distribute, contrary to N.J.S.A. 2C:35-5b(3) (count two); third-degree distribution of CDS (cocaine), contrary to N.J.S.A. 2C:35-5b(3) (count three); third-degree possession of CDS (cocaine) with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-5 and 7 (count four); and third-degree conspiracy to distribute CDS (cocaine), contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(3) (count five).
On July 30, 1992, Investigator Charlene Banks (now Charlene Banks Eugene) of the Narcotics Task Force Unit in Burlington County began working undercover with the Cumberland County Narcotics Task Force Unit and the Vineland Police Department. As part of the undercover investigation she was assigned to purchase narcotics from defendant, Gerone Wright, or his brother, co-defendant Alfred Wright, while working with a confidential informant who was to introduce her to defendants.
Investigator Banks was told that the confidential informant had made arrangements for the transaction, which would be finalized by placing a call to defendant's pager for confirmation. The deal would be consummated after the page.
At approximately 9:00 p.m. on July 30, 1992, the confidential informant gave the pager number to Investigator Banks while at a WaWa convenience store in Vineland. Investigator Banks then dialed the number from a public telephone located in the parking area outside of the WaWa. The confidential informant held the telephone receiver until he was sure the page had gone through.
After placing the page, Investigator Banks hung up the receiver. She and the confidential informant waited for a return call. The telephone did not ring. Soon thereafter, however, defendant drove a red Renault into the parking lot.
Defendant got out of the Renault and walked toward Investigator Banks and the confidential informant. They discussed the narcotics transaction. Defendant spoke directly with the confidential informant who then relayed the terms of the deal to Investigator Banks. They agreed to a purchase of a quarter of an ounce of cocaine for $250. At the end of the negotiation, defendant directed the confidential informant to a movie theater parking lot in order to complete the transaction.
Pursuant to defendant's instructions, Investigator Banks and the confidential informant drove to the parking lot adjacent to a nearby movie theater. Investigator Banks parked her vehicle next to an empty space, anticipating defendant would park there.
Detective Sergeant Daniel Schontz and Officer Joseph Lowry conducted surveillance near a driveway entrance to the movie theater parking lot. Sergeant Schontz observed an individual on a motorcycle turn into the driveway leading into the movie theater parking lot, and head towards the movie. Approximately ten minutes later, the motorcycle exited the same driveway. Officer Lowry obtained the motorcycle's complete license plate number. A motor vehicle look-up revealed that the motorcycle was registered to Alfred Wright.
Fifteen minutes later the motorcycle again entered the theater driveway. Schontz, who was familiar with Alfred Wright, was sure that Alfred Wright was the person on the motorcycle. Defendant never appeared at the theater parking lot.
The cyclist drove over to Investigator Banks and the confidential informant and discussed the cocaine purchase. His black helmet and visor covered his face. Investigator Banks was never able to identify him. The cyclist stated he wanted all the money for the purchase in advance. However, Investigator Banks preferred to pay half in advance and the other half after inspecting the cocaine. The cyclist agreed. After obtaining half the purchase price from the confidential informant, who had received it from Investigator Banks, the cyclist left saying he would be right back because he had not brought the cocaine with him. He returned fifteen minutes later.
Upon his return, the cyclist told the confidential informant he had the cocaine but he did not want to deal directly with Investigator Banks. The confidential informant told the cyclist that Investigator Banks wanted to see the cocaine before she would pay the rest of the money. The cyclist gave the confidential informant a paper towel containing four plastic sandwich bags full of cocaine. The confidential informant then gave the bags to Investigator Banks.
After examining the cocaine, Investigator Banks paid the confidential informant the rest of the money. The confidential informant, in turn, gave the money to the cyclist. About ninety minutes later, Investigator Banks positively identified a photograph of defendant as the ...