August 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIK D. ROBERTS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-07-01391.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 3, 2012 -
Before Judges Payne and Messano.
On April 14, 2010, defendant Erik D. Roberts was arrested in Neptune Township and charged in a summons complaint with the petty disorderly persons offense of disorderly conduct, N.J.S.A. 2C:33-2(a)(2), and in a warrant complaint with third-degree terroristic threats against police officer Thomas Rafi, N.J.S.A. 2C:12-3(b). Bail was set on the indictable offense by the municipal court judge at $15,000, with a ten-percent cash option.
The next day, defendant appeared pro se in the municipal court via videoconference from the county jail. The municipal court judge advised defendant he was "charged . . . with disorderly conduct by yelling profanities and posturing in a threatening manner towards an officer." The judge further advised defendant of the possible consequences if convicted.*fn1
When asked how he pled to the charge, defendant responded, "Guilty." When asked by the judge as to his sentence recommendation, the prosecutor responded, "250 plus the mandatory." The following colloquy then occurred:
Judge: So, you want to plead guilty, sir? Defendant: Yes, your Honor.
Judge: Is anyone forcing you to plead guilty?
Judge: You're waiving your right to a trial and to an attorney; correct? Yes?
Judge: Do you admit that on April 14, 2010 you were guilty of disorderly conduct?
Defendant: Yes, your Honor.
Judge: I'll accept your guilty plea.
The judge then sentenced defendant to one year probation and imposed various fines and penalties.
Although she had fixed defendant's bail on the indictable warrant complaint, the municipal court judge asked defendant why he was being detained. Defendant responded: "When I got this disorderly conduct charge, they ran my name. They found out I had a warrant from Eatontown. So, they locked me up." The transcript reveals no mention of the indictable complaint.
On July 15, 2010, the Monmouth County grand jury heard testimony from Neptune Township police sergeant William Kirchner. He testified that on April 14, officers Rafi and Leslie Borges were "investigating a disorderly conduct involving a third person." While Borges awaited the arrival of backup units, defendant approached and began cursing, yelling, and demanding Borges "leave [defendant's] cousins alone." When defendant ignored orders to stay away, Borges told Kirchner to place defendant under arrest for disorderly conduct. Defendant was taken from the scene in a police car.
On arrival at police headquarters, defendant continued his harangue, telling Rafi, "I'm going to f------ kill you and your f------ family." Defendant continued in the crudest language, threatening to sexually assault Rafi's daughter and kill his wife and daughter. Based on Kirchner's testimony, the grand jury subsequently returned Indictment No. 10-07-1391, charging defendant with two counts of terroristic threats in the third degree, one against "L.B.," and a second against "T.R."*fn2
Defendant thereafter moved to dismiss the indictment, contending at oral argument that "[d]ouble jeopardy exists because he pled guilty to an offense that was related to his actions that were interpreted as threats being made against those police officers." Defense counsel argued that "the State would have to . . . prove those terroristic threats or the identical facts to which [defendant] already pled guilty to at the municipal court." She further contended that "[a] finding of guilt on these indictable offenses would require re-prosecution of these exact facts . . . . For whatever reason these summonses were not kept together . . . ." At oral argument, the State contended that there were two separate incidents, the first, "out on the street," and the second "at headquarters."
In a thoughtful, extensive written opinion issued on February 17, 2011, the judge reasoned that disorderly conduct was not a lesser-included offense of terroristic threats. He also concluded that defendant's conduct involved separate incidents, and "[t]he trial on the terroristic threats charge would not require proof of defendant's actions for disorderly conduct . . . ."
Citing our opinion in State v. Colon, 374 N.J. Super. 199 (App. Div. 2005), the judge also determined that "it would not be 'fundamentally unfair' to have defendant . . . face charges on the indict[ment] . . . after pleading guilty in municipal court to a disorderly persons offense." The judge stated:
This defendant could not have reasonably expected that his post-arrest threats would result in free crimes or that he would be absolved for those threats by pleading guilty to the disorderly person offense for which he was initially arrested. While it is preferable that all of the charges should have all been first forwarded by the municipal court to be reviewed by the prosecutor so as to avoid the potential for a claim of double jeopardy, the plea here . . . should not prevent the State from prosecuting this defendant for his more serious crimes. Especially since, as was the case in Colon, the municipal court proceeded with the guilty plea without the knowledge, consent or actions of the county prosecutor.
The judge entered an order denying defendant's motion.
On February 28, 2011, defendant pled guilty to both counts of the indictment. Pursuant to the plea bargain, he was sentenced to probation, preserving his right to appeal the denial of his motion to dismiss the indictment. This appeal followed.
Defendant raises the following argument before us:
AS A MATTER OF NEW JERSEY LAW, FUNDAMENTAL FAIRNESS/"EQUITABLE DOUBLE JEOPARDY" BARRED THE STATE FROM PROCEEDING ON AN INDICTMENT WHICH ADDRESSED THE SAME OVERALL CRIMINAL TRANSACTION AS HIS PRIOR PLEA IN MUNICIPAL COURT; THAT MUNICIPAL PLEA WAS TO AN OFFENSE SIMILAR ENOUGH TO THE INDICTABLE OFFENSES THAT DEFENDANT HAD A REASONABLE EXPECTATION THAT THE MUNICIPAL-COURT PLEA WOULD DISPOSE OF THE ENTIRE MATTER.
We have considered this argument in light of the record and applicable legal standards. We reverse and remand the matter for further proceedings consistent with this opinion.
We state some general principles that guide our review. The decision on a motion to dismiss an indictment rests with the trial court's sound discretion. State v. Hogan, 144 N.J. 216, 229 (1996) (citing State v. McCrary, 97 N.J. 132, 144 (1984)). That broad discretion is mistakenly exercised if it "[is] without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation and internal quotation marks omitted). "[I]f a trial court's discretionary decision is based upon a misconception of the law, a reviewing court owes that decision no particular deference. Rather, [the court] must ensure that there is no manifest denial of justice, and decide the controversy in the proper light of the applicable law." State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010) (citation omitted). Because the trial judge's decision was based upon the legal consequences drawn from established facts, we review the decision de novo.
As we recently said:
The United States Constitution provides that no person "shall . . . be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const., amend. V. New Jersey's constitutional bar against double jeopardy provides that "[n]o person shall, after acquittal, be tried for the same offense." N.J. Const. art. I, ¶ 11. Our double jeopardy provision has consistently been interpreted to be co-extensive with the protections afforded by its federal counterpart, and protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. [State v. Salter, 425 N.J. Super. 504, 517-18 (App. Div. 2012) (alterations in original) (citations and internal quotation marks omitted).
Our courts have traditionally applied a more flexible "same evidence" test, as opposed to the more restrictive, "same elements" test, applied by the federal courts. See id. at 518-19 (explaining the two standards).
Defendant concedes on appeal that traditional notions of double jeopardy did not foreclose his prosecution on the indictment. Instead, he contends that subsequent prosecution on the indictment was barred by the "fundamentalfairness"/equitable double jeopardy test enunciated in State v. Gregory, 66 N.J. 510 (1975), and State v. Yoskowitz, 116 N.J. 679 (1989). Defendant argues that based upon what transpired in the municipal court, he "had the right to reasonably expect that" his guilty plea disposed of all potential criminal charges arising from his actions that day.
The doctrine of fundamental fairness/equitable double jeopardy protects a defendant from "governmental harassment and oppression by multiple prosecution for the same wrongful conduct." Gregory, supra, 66 N.J. at 513. "[T]he doctrine . . . has been an elusive concept . . . [whose] exact boundaries are undefinable . . . . For the most part, it has been employed when the scope of a particular constitutional protection has not been extended to protect a defendant." Yoskowitz, supra, 116 N.J. at 704-05 (citations and internal quotation marks omitted). "Fundamental fairness is a doctrine to be sparingly applied. It is appropriately applied in those rare cases where not to do so will subject the defendant to oppression, harassment, or egregious deprivation." Id. at 712.
In Gregory, supra, 66 N.J. at 511, the defendant made a sale of heroin to an undercover police officer, who subsequently notified other officers who, in turn, seized additional heroin from the defendant's apartment. The defendant was indicted, tried and convicted for the undercover sale. Id. at 511-12. He was thereafter indicted, tried and convicted for possession and possession with intent to distribute the additional heroin seized from his apartment. Ibid.
The Court concluded that, "[w]hen the defendant was originally indicted[,] both he and the State were fully aware that on [the same date] there had been a sale . . . of the small quantity of heroin and possession by him of the larger quantity." Id. at 518. When the defendant was initially indicted and tried, "his reasonable expectations were that there would be no further prosecution on the basis of his possession and sale . . . ." Ibid. The Court concluded "[f]airness dictated that if the State contemplated any additional prosecution based on . . . possession and sale it would join it with the original prosecution rather than withhold mention of it until after completion of the trial. Such withholding and later prosecution smacks of harassment and oppression and should be barred." Ibid.
In Yoskowitz, supra, 116 N.J. at 683-84, the defendant arranged to have his car stolen and destroyed in an effort to defraud his insurer. He was charged with the disorderly persons offense of filing a false police report, to which he pled guilty in municipal court. Id. at 682, 686. Several months later, the defendant was indicted for arson and attempted theft by deception. Id. at 687.
Alleging that a detective told him he would only be charged with the disorderly persons offense if he cooperated with the investigation of the arson, the defendant sought dismissal of the indictment on double-jeopardy grounds. Id. at 685. In reversing the denial of that motion, the Court "f[ound] that an inadequate factual record exist[ed] to determine whether [the fundamental-fairness doctrine] [wa]s applicable to th[e] case." Id. at 708. "[C]oncerned that under the unique circumstances . . . , [the] defendant may have reasonably expected that the subsequent prosecutions would not be brought," the Court remanded the matter "to determine what representations were made to defendant . . . [and whether] it was reasonable for defendant to rely on such representations . . . ." Ibid.
The Court further said that if "the . . . County Prosecutor's Office knew or should have known that prosecutions for the related indictable offenses would be instituted in the near future . . . the hearing should have been suspended until all the charges could be heard together." Id. at 709; see also State v. Dively, 92 N.J. 573, 589 (1983) ("A breakdown in communications between state and municipal officials forms no justification for depriving an accused of his right to plead double jeopardy.") (citation and internal quotations omitted). A defendant's reasonable expectations must be measured by "an objective standard . . . that looks strictly at the reasonably anticipated or foreseeable effects on the defendant." Yoskowitz, supra, 116 N.J. at 735.
In Colon, supra, 374 N.J. Super. at 203-04, the defendant struck a bicyclist while fleeing from the police in a stolen car. The defendant was issued municipal court summonses for various traffic offenses, including reckless driving. Id. at 204. He was also indicted for eluding, aggravated assault, assault by auto, motor vehicle theft, and receipt of stolen property. Ibid. The day after the indictment was returned, the defendant pled guilty to the municipal court traffic offenses. Id. at 204-05. The defendant subsequently sought dismissal of the indictment on fundamental fairness grounds. Id. at 219.
In affirming the lower court's denial of the motion to dismiss, we said that while it was preferable the municipal court offenses be joined with the indictable offenses in one proceeding, [T]he failure to have joined the two prosecutions, which involved offenses containing admittedly divergent elements, [did not preclude the] defendant's prosecution . . . on fairness grounds, particularly since it appear[ed] . . . that [the] nature of the charges pending in the municipal court did not automatically trigger notice to the prosecutor[,] . . . the judge [also] appear[ed] to have been unaware of the existence of [the] defendant's indictment by a grand jury and certainly was not informed of the fact on the record; and [the] defendant provided a misleading response when queried by the judge regarding the charges that were holding him in jail. Moreover, we have been presented with no evidence that would support the contention that defendant reasonably expected, by pleading guilty to the municipal charges, that he would have resolved his liability for eluding the police and, in doing so, causing serious injury to a passing bicyclist. [Id. at 220-21.]
We concluded it was not fundamentally unfair for the State to have proceeded with its prosecution of the defendant on the more serious indictable offenses. Id. at 221.
In this case, as in Colon, supra, 374 N.J. Super. at 220, "the nature of the charges pending in the municipal court did not automatically trigger notice to the prosecutor." The disorderly conduct complaint mentions only officer Borges, and the indictable complaint references Rafi and another "special law enforcement officer Heine."
However, it is unclear whether the indictable complaint was in the possession of the municipal court judge, despite the fact that she set bail on defendant the previous day. If it was, the record does not explain what procedures used to insure compliance with Rule 3:15-3(a)(1), which generally requires that "the court . . . join any pending non-indictable complaint for trial with a criminal offense based on the same conduct or arising from the same episode," were in place and, if they were, why they were not followed in this case.
Despite having set bail, after accepting defendant's guilty plea, the municipal court judge asked why he was being detained. Defendant's response -- that he was subject to outstanding warrants from another town -- may have been less than candid. See Colon, Id. at 220-21 (where we considered that the defendant "provided a misleading response when queried by the [municipal court] judge regarding the charges that were holding him in jail"). However, that presumes defendant had been served with the indictable complaint, something that is also unclear from the record.
The State correctly points out that the existing record is void of any communications between the municipal and county prosecutor. And, although never affirmatively stated by certification or affidavit, we might reasonably assume that, since defendant pled guilty at his first appearance in the municipal court, the county prosecutor had no knowledge of what transpired there until much later. However, that failure of communications does not necessarily inure to the State's benefit. Dively, supra, 92 N.J. at 589.
In Colon, supra, 374 N.J. Super. at 221, we noted there was "no evidence . . . support[ing] the contention that [the] defendant reasonably expected, by pleading guilty to the municipal charges, . . . he would have resolved his liability for eluding the police . . . ." Under all the circumstances presented in this case, and based upon the inadequacy of the record, we cannot reach the same conclusion with any degree of certainty.
We therefore remand the matter to the trial court for further proceedings consistent with this opinion. On remand, the judge shall conduct a hearing that focuses on the particular circumstances in the municipal court, including defendant's knowledge of the actual complaints filed against him, and his reasonable expectations when he pled guilty to disorderly conduct. We leave the actual conduct of the remand hearing to the judge's sound discretion.
Reversed and remanded. We do not retain jurisdiction.