On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-11-2085.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Simonelli.
By leave granted, the State appeals from a September 1, 2011 order of the trial court, dismissing with prejudice count twenty-three of a multi-count indictment against defendant Roy Hermalyn. This count charged defendant with second-degree official misconduct by engaging in sexual conduct with the victim while defendant was a public servant. N.J.S.A. 2C:30-2a.*fn1
The trial court held that the State's attempt to re-try defendant on this count violated the Double Jeopardy Clause. We agree, and affirm.
The history of this case was described at length in our two prior opinions, State v. Hermalyn, Docket Nos. A-2700-07, A-4003-07 (App. Div. Jan. 9, 2009) (Hermalyn I), and State v. Hermalyn, A-1669-09 (April 28, 2010) (Hermalyn II). To summarize, in a twenty-seven-count indictment, the State charged defendant, an assistant school superintendent, with committing a litany of sexual offenses against three students, J.P., E.P., and J.M.G.
After a trial, the jury acquitted defendant of all counts relating to E.P. With respect to J.P, the jury acquitted defendant of every count of the indictment that accused him of committing a specific sexual act with J.P, but convicted him of "official misconduct by sexual conduct with [J.P.]" and "endangering the welfare of [a] child." The jury convicted defendant of "official misconduct by sexual conduct" with J.M.G and "criminal sexual contact by force by touching [J.M.G.'s] chest." The jury acquitted defendant of the other specific sexual allegations - allegedly touching J.M.G.'s penis, touching J.M.G.'s inner thigh, and touching his own penis "in the view of [J.M.G.]."
On defendant's direct appeal, we reversed his conviction and remanded for a re-trial on the counts concerning J.P. and J.M.G. on which defendant was convicted (the "convicted counts"). We based our decision on the following facts. During jury deliberations a sheriff's officer improperly advised jurors that they had to render a unanimous verdict on all counts. At a hearing held after the verdict, one of the jurors confirmed that, but for the sheriff's officer's comment, she would have voted to acquit defendant on at least count twenty-six, which accused him of touching J.M.G.'s chest, and possibly on the other count as well. The State conceded that the officer's remark was improper. We concluded that at least one, and possibly several, jurors construed the remark as meaning that the jury was not allowed to deadlock; found that the taint extended to all of the convicted counts; and ordered a retrial as to those counts. The Supreme Court denied the State's motion for leave to appeal from our decision. State v. Hermalyn, M-837 (March 19, 2009).
On remand, the defense moved before the trial court to dismiss the remaining counts concerning J.P., on grounds of double jeopardy and collateral estoppel. The trial court granted the motion, but in an unreported opinion, we remanded the matter to the trial court for further consideration. Notably, our opinion indicated our inclination to regard the counts on which we had reversed defendant's conviction (the "vacated counts") as a nullity, analogous to a situation in which there is a hung jury on certain counts. See Yeager v. United States, 557 U.S. 110, 120, 129 S. Ct. 2360, 2367, 174 L. Ed. 2d 78, 88 (2009).
We directed the trial judge on remand to focus on the counts on which the first jury had acquitted defendant (the "acquitted counts") and to apply the analysis set forth in Yeager. In particular, we directed the judge to decide whether "based on the way the case was actually presented," the first jury had necessarily decided that defendant did not commit the predicate sexual acts on which the vacated counts were based. Hermalyn II, supra, slip op. at 12. We indicated that we could not perform that analysis, because the State had not provided us with the transcripts from the first trial.*fn2 Id. at 3, 7-8.
On remand, by order dated October 27, 2010, the judge dismissed the charges relating to J.P., on the grounds that "the sexual conduct involving J.P. alleged in counts one and two [the vacated counts] was identical to the sexual conduct alleged in counts three through sixteen [the acquitted counts]." The judge further found that the "matters put in issue and necessarily decided by the jury were whether" defendant committed the sexual conduct specified in the acquitted counts. And he found that the jury's verdict on the acquitted counts "determined that the sexual conduct did not take place." He therefore concluded that a re-trial on the first two counts was barred by "principles of double jeopardy and collateral estoppel." By order dated January 25, 2011, we denied the State's motion for leave to appeal.
With respect to J.M.G., the defense filed a motion to require the State to file a bill of particulars concerning counts twenty-three and twenty-six, and to dismiss count twenty-three. Count twenty-six alleged that on some unspecified dates between December 1, 2002 and February 1, 2004, defendant "intentionally" touched J.M.G.'s chest for sexual purposes. Count twenty-three alleged in general terms that on some unspecified dates during that same time period, defendant ...