On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-06-0137.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz, Waugh and St. John.
The State appeals from the May 9, 2011 order of the Law Division dismissing the indictment against defendant Charles J. Crook, with prejudice. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we reverse.
Middlesex County Indictment No. 08-06-1037 charged defendant with third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a). Defendant successfully moved for a change of venue to Union County because the victim was a Middlesex County Sheriff's Officer, and employees of the Middlesex Vicinage court system, including a sitting Criminal Part judge, were witnesses to the incident.
Defendant was prosecuted before a jury by a Union County Assistant Prosecutor (AP), who had not been cross-designated as a Special Deputy Attorney General (Special DAG). The jury failed to reach a verdict, and a mistrial was declared on December 17, 2010.
On May 9, 2011, before defendant's scheduled retrial, a different judge considered the AP's non-designation as a Special DAG, and any effect it may have on the first and subsequent trials.*fn1 The judge reasoned that because the AP was not designated as a Special DAG during the first trial, "The State was not ready, [and] did not have an authorized representative to represent itself at that proceeding." The judge also determined that "a county prosecutor only has jurisdiction to prosecute those cases in its own county." Further, the judge stated, "[the AP] brought this case to trial without jurisdiction and I believe that jeopardy attached when that jury was selected." As a result, the judge ultimately determined that without the proper designation as a Special DAG, "there was in effect prosecutorial misconduct . . . [and] this case was tried without jurisdiction."
The judge dismissed the indictment with prejudice, and the order memorializing his decision stated: "[T]he Prosecutor of Union County having no jurisdiction to represent the State in said matter interfered with the Defendant's right to a trial by jury . . . ."
The State raises the following argument for our consideration on appeal:
THERE WAS NO BASIS TO DISMISS THE INDICTMENT WITH PREJUDICE; THE FAILURE TO PROPERLY DEPUTIZE THE ASSISTANT PROSECUTOR WAS THE EQUIVALENT OF A TECHNIAL ERROR.
Because the issue before this court challenges the authority of the AP, we extended to the Attorney General the opportunity to file an amicus curiae ...