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November 29, 2010


On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Municipal Appeal No. 28-12-09.



Argued September 29, 2010

Before Judges Fisher, Sapp-Peterson and Simonelli.


In this appeal by the State, we determine whether a guilty plea to fourth-degree creating a risk of widespread injury or death, N.J.S.A. 2C:17-2(c), precluded defendant's subsequent prosecution in municipal court for certain motor vehicle offenses. Defendant moved before the municipal court to dismiss the motor vehicle charges on double jeopardy grounds. The municipal judge denied the motion. On appeal de novo to the Law Division, Judge Kyran Connor granted the motion, vacating the guilty pleas and dismissing the complaint on double jeopardy grounds. We affirm.

The underlying facts supporting the indictment occurred on December 18, 2007, when police received a report of a motorist operating his vehicle on a hockey rink at Mulligan Field in Lower Township. Defendant's vehicle nearly struck a group of children. His vehicle collided with several objects, including a concrete barrier, a tree, and two trash receptacles. When the vehicle finally stopped, approximately fifteen men restrained defendant until police arrived. The arresting officer detected a strong odor of alcohol on defendant's breath and observed that defendant's eyes were droopy and watery. Defendant was belligerent both at the scene and later at a local hospital where he was transported for treatment. The Lower Township Police issued summonses to defendant for driving under the influence (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; and failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f). A complaint was also issued for driving a motor vehicle in a recreational area, in violation of Lower Township Ordinance No. 475-1(E)(1). Laboratory tests performed by the State Police revealed that defendant's blood alcohol content was .237.

On January 29, 2008, a grand jury indicted defendant on a single count of fourth-degree creating a risk of widespread injury or death. The indictment read in pertinent part:

DONALD R. HAND, on or about December 18, 2007, in the Township of Lower, County of Cape May, and within the jurisdiction of this Court, recklessly did create a risk of widespread injury or damage, by operating a motor vehicle in an intoxicated state on a populated athletic field; contrary to . . . N.J.S.A. 2C:17-2(c)[.]

On April 17, 2008, defendant, who was represented by counsel, appeared in Superior Court. His attorney advised the court that defendant would plead guilty to the indictment and that in exchange, the State would recommend a 365-day prison term. In response to this representation, the prosecutor advised the court:

Judge, that is an accurate representation of our agreement. I expect the factual basis, Judge, with regard to this matter . . . would include . . . defendant acknowledging that while highly intoxicated[,] he operated his motor vehicle in an area which was populated by young kids, a recreational area, out off the street onto the grass area[,] placing many of the people there in risk of injury.

The court thereafter personally questioned defendant under oath, and defendant admitted that he had consumed a pint of vodka at a home located near the athletic field. He told the court that he did not know "how [he] got the keys" and did not remember the events, but accepted the accounts of others regarding his behavior. He was subsequently sentenced in accordance with the plea agreement.

The State remanded the traffic summonses to municipal court for disposition. On November 24, 2009, defendant appeared before the Lower Township Municipal Court with counsel. At that time, the prosecutor reported to the court that there "might possibly be a joint motion" to dismiss the DWI charge because she "sort of concur[red] with [defense counsel]'s arguments regarding double jeopardy[.]" The judge disagreed and denied defendant's motion to dismiss the charges. Six days later, defendant pled guilty to the DWI and reckless driving offenses. Noting that this was defendant's seventh DWI conviction, the judge sentenced him to six months incarceration, a ten-year loss of his driving privileges, along with appropriate fines and penalties.

Defendant appealed the conviction to the Law Division, challenging the denial of his motion to dismiss. Judge Connor, citing the "same evidence" test set forth in State v. DeLuca, 108 N.J. 98, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987), reasoned that "defendant's driving while intoxicated was already effectively adjudicated on April ...

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