Before Judges Kleiner, Coburn and Axelrad.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2000
On appeal from Superior Court of New Jersey, Law Division, Essex County.
An Essex County Grand Jury returned an indictment charging defendant, Al-Muhhye Allah, and his co-defendant, Geraldo Garcia, with second-degree conspiracy to possess heroin with intent to distribute, N.J.S.A. 2C:5-2 (count one); third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count two); second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5b(2) (count three); and third-degree possession of heroin with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count four).
The case was tried twice. The first trial ended when the prosecutor moved for a mistrial and the judge granted the motion on the ground of manifest necessity. In the second trial, presided over by another judge, the jury found defendant guilty of count two and acquitted him of the other offenses. He received a prison sentence of five years, two years to be served without parole. The appropriate fines and penalties were imposed.
The defendant never moved for dismissal of the indictment on double jeopardy grounds. Nonetheless, his primary point on appeal is that he is entitled to a reversal and dismissal of the indictment because the second trial was barred by double jeopardy. The dispositive issue is whether this belated claim can justify the relief sought. Although the trial court erroneously granted the mistrial, we agree with the State's argument that the defense of double jeopardy was waived and may not be raised on appeal. Since defendant's other points are without merit, the judgment is affirmed.
To place the double jeopardy issue in context, we briefly summarize the evidence presented by the State, which was essentially the same in both trials. On January 14, 1997, two officers stopped an automobile because it passed a stop sign without stopping. Garcia was the driver and defendant Allah was seated in the right front seat. One of the officers noticed an open cardboard box that appeared to contain envelopes of heroin. The box was located on the passenger's side of the front floor of the automobile. When the officer brought his observation to the attention of the suspects, Allah ran but was followed and arrested. The box contained 441 envelopes of heroin, which weighed over twenty grams.
Just before jury selection began for the first trial, the co- defendant, Geraldo Garcia, pleaded guilty to counts one, three, and four of the indictment pursuant to an agreement with the State that obliged him to testify at Allah's trial. While providing the sworn factual basis for his plea, Garcia acknowledged that he and Allah possessed the heroin, that they had purchased it for $2,000, each paying half, and that they intended to sell it. He said that when they were arrested the box of heroin was under his seat in the car.
During the first trial, the State rested without calling Garcia, who thereafter testified as a witness for the defense. On direct examination he testified about the beneficial terms of his plea agreement, his promise to provide a truthful factual basis for his plea, and defendant's presence with him in the car. The only other questions posed by defense counsel dealt with the location and condition of the box. Garcia testified that the box was under his seat and that the heroin could not be seen because it was covered with newspapers. The obvious implication of that testimony was that Allah was innocent.
At this point, Garcia's attorney, who had been observing the proceedings, asked for permission to consult with her client, stating that since her client's case was still open, he had "Fifth Amendment rights to not testify about this." After the consultation, she advised the court that her client would "assert the Fifth on advice of counsel." Garcia confirmed on the stand, outside the jury's presence, in response to questioning by his counsel and a question posed by the prosecutor, that he would not testify based on the Fifth Amendment. Of course, had he been subjected to cross-examination, his testimony, if consistent with his sworn plea statement, would have implicated defendant. Defendant's attorney then indicated that his direct examination had been concluded.
The prosecutor responded to these developments by moving for a mistrial. Over defendant's objection, the trial court, believing that the witness was entitled to invoke the privilege against self- incrimination and that charging the jury to disregard his testimony would be ineffective, granted the State's motion on the ...