On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0012-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Collester.
After review de novo on the record, the Law Division judge denied defendant Kathryn Torres' motion to dismiss motor vehicle charges of failure to stop at a stop sign, N.J.S.A. 39:4-144, running a red light, N.J.S.A. 39:4-81, and reckless driving, N.J.S.A. 39:4-96. Based on the municipal court record the judge found defendant guilty of these offenses as well as an amended charge of failure to produce a driver's license, N.J.S.A. 39:3-29. Following sentence, defendant filed a notice of appeal and sets forth the following arguments:
POINT I -- THE STATE WAS BARRED FROM PROSECUTING THE DEFENDANT ON THE MOTOR VEHICLE DRIVING OFFENSES BY VIRTUE OF DEFENDANT'S CONSTITUTIONAL PROTECTION AGAINST DOUBLE JEOPARDY AS WELL AS STATE LAW.
POINT II -- THE PROSECUTION ON THE CHARGE OF RECKLESS DRIVING WAS BARRED BY N.J.S.A. 2C:1-10.
The motor vehicle charges as well as criminal complaints were the result of an incident on May 3, 2002. On June 5, 2002, an indictment was returned against defendant charging her with second-degree eluding a police officer and creating a risk of injury or death, contrary to N.J.S.A. 2C:29-2(b) (count one); third-degree resisting arrest by threats or physical force against Detective Sergeant Love, contrary to N.J.S.A. 2C:29-2(a)(1) (count two); fourth-degree resisting arrest by flight from Officer Mary Grace Ingram, contrary to N.J.S.A. 2C:29-2(a)(3) (count three); third-degree aggravated assault on police officer Detective Ingram, contrary to N.J.S.A. 2C:29-1(b)(5) (count four); fourth-degree obstructing administration of the law, contrary to N.J.S.A. 2C:29-1 (count five); and third-degree resisting arrest by threats or force against Detective Ingram, contrary to N.J.S.A. 2C:29-2(a)(1) (count six). The motor vehicle charges were stayed pending resolution of the indictment.
The criminal case was called for trial on February 9, 2004, but the jury panel was exhausted during the course of voir dire examination. On February 17, 2004, a jury was impaneled and sworn. Prior to opening statements the next day, the court found discovery violations by the State and sua sponte declared a mistrial. Defendant then filed a motion on February 23, 2004 to dismiss the indictment and bar retrial on grounds of double jeopardy. On April 27, 2004, the Law Division judge granted the motion and issued an order which read in pertinent part as follows:
[T]he defendant having filed a motion to dismiss the indictment and bar retrial on double jeopardy grounds on February 23, 2004, and the court having ordered the conduct of a plenary hearing for the purpose of determining whether sanctions would be imposed against the Atlantic County prosecutor and/or the Atlantic City Police Department, said hearing, initially ordered by the court on the date of mistrial, namely, February 18, but thereafter modified by the court's written revised order of March 4, 2004, and the defendants having filed additional motions with regard to production of discovery, and the court having reviewed all moving in opposition briefs of the parties, and having further convened a plenary hearing on April 24, 2004 when the testimony of Det. Sgt. Love was taken and the court having entertained oral argument of all counsel, and the court having further made specific findings of fact of law with regard to the circumstances occurring before and during trial, and the court intending to incorporate all of its factual and legal findings on the record from February 21, 2004, and no cause appearing to the contrary, It is therefore on the 27th day of April, 2004, Ordered and adjudged that Indictment No. 2-06-1135-B be and hereby is dismissed on double jeopardy grounds, thereby barring any retrial of defendants Kathryn Torres and Tashiva Torres, and that no sanctions be imposed upon either the State of NJ (pros's office) or Atlantic City in view of the dismissal.
Neither the State nor defendant has supplied to us a transcript of the plenary hearing of April 21, 2004 or any findings of fact or law by the trial judge following the plenary hearing. It is undisputed that there was no disposition on the motor vehicle charges at the hearing.
In May 2007, more than three years after the indictment was dismissed, six motor vehicle summonses were returned to the Atlantic City Municipal Court for trial. No reason or explanation was given for the extensive delay in prosecution of the Title 39 charges.
Following trial in the Atlantic City Municipal Court, the defendant was acquitted of driving while suspended, but found guilty of reckless driving, failure to stop at a stop sign, failure to stop at a red light, failure to wear a seat belt and driving as an unlicensed driver. On appeal the Law Division judge held that prosecution on the motor vehicle offenses was not ...