Argued March 23, 2015
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 13-07-0671.
Gretchen A. Pickering, Assistant Prosecutor, argued the cause for appellant (Robert L. Taylor, Cape May County Prosecutor, attorney; Ms. Pickering, of counsel and on the brief).
Peter T. Blum, Assistant Deputy Public Defender, attorney for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief).
Before Judges Lihotz, Espinosa and Rothstadt.
After concluding that a prosecution was not barred by either double jeopardy or the mandatory joinder rule, the trial court dismissed an indictment with prejudice against defendant, relying upon the "doctrine of fundamental fairness and equitable treatment." We agree with the trial court that prosecution of the cocaine charges was not barred by double jeopardy or the mandatory joinder rule, N.J.S.A. 2C:1-8(b) and R. 3:15-1(b). The question presented by the State's appeal is whether, under the facts of this case, the rarely applied doctrine of fundamental fairness is properly relied upon to protect the defendant from oppression and harassment. We conclude that the application of the doctrine here was a mistaken exercise of discretion and reverse.
Although the mandatory joinder rule does not apply, a review of its origin and application provides helpful background for our consideration of the issue on appeal. The rule had its origin in State v. Gregory, 66 N.J. 510 (1975). The Supreme Court announced the adoption of a rule that would conform to Section 1.07(2) of the American Law Institute's Model Penal Code, which provides that "a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode where the prosecuting attorney knows of the offenses when he begins the first trial and the offenses are within the jurisdiction of the court." Id. at 519 (internal quotation marks omitted).
In State v. Yoskowitz, 116 N.J. 679 (1989), the Court identified the four criteria a defendant must satisfy in order to invoke the mandatory joinder rule: "(1) the multiple offenses are criminal; (2) the offenses are based on the same conduct or arose from the same episode; (3) the appropriate prosecuting officer knew of the offenses at the time the first trial commenced; and (4) the offenses were within the jurisdiction and venue of a single court." Id. at 701.
The facts are undisputed. On August 20, 2011, defendant was a passenger in a vehicle that was stopped in Upper Township. After searching the vehicle, officers found a large quantity of marijuana in the trunk. Defendant was arrested and, on April 3, 2012, was charged in Indictment No. 12-04-0238, with one count of third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1). In March 2013, defendant pled guilty to this charge pursuant to a plea agreement in which the prosecution agreed to recommend a non-custodial period of probation. On May 3, 2013, defendant was sentenced to two years' probation and a twelve-month suspension of his driver's license. The probation was to run concurrent with a two-year term of probation already imposed upon defendant on another indictment.
On May 14, 2013, just eleven days after defendant was sentenced on Indictment No. 12-04-0238, defendant was arrested in Upper Township on a warrant charging him with possession and distribution of cocaine. The charges were based upon sales he made to Detective Steve McCullen, an undercover officer employed by the Cape May County Prosecutor's Office, of 1.85 grams of cocaine on August 9, 2011, in Dennis Township, and 6.588 grams of cocaine on August 19, 2011, in Upper Township. Those sales formed the basis for two counts of third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3), charged against him in Indictment No. 13-07-0671.
Defendant filed a motion to dismiss the indictment. Defense counsel argued that all the charges against defendant arose from conduct during August 2011 and that in entering his guilty plea, defendant had a reasonable expectation he was resolving all criminal matters against him in Cape May County. Citing Gregory and State v. James, 194 N.J.Super. 362 (App. Div. 1984), counsel asked the court to find the charges arose from the same criminal episode and that the charges relating to the undercover sales should be dismissed as a matter of fundamental fairness.
The State argued the charges in Indictment No. 13-07-0671 were wholly unrelated to the earlier charge that was the subject of the plea agreement. Although conceding the State was charged with knowledge of the undercover sales, the assistant prosecutor stated the prosecutor's office was unaware of the August 2011 undercover sales when defendant was sentenced under Indictment No. 12-04-0238, and did not have a responsibility to check for outstanding charges. Noting "plea agreements . . . [do not] encompass every single criminal activity that [a defendant has] committed up until that point, " the prosecutor argued it would impose an unreasonable burden to require the State to canvas all investigating authorities to determine whether there are any open files against a defendant before entering into a plea agreement. Addressing the nearly two-year delay in bringing the charges, the prosecutor responded that the delay was not uncommon and noted the charges were brought well within the statute of limitations, N.J.S.A. 2C:1-6(b)(1). The prosecutor also explained the reason for delaying the filing of charges arising from an undercover operation:
[A]n undercover officer like Detective Mc[C]ullen . . . once they charge someone he can never be used as an undercover officer in Cape May County again. It will ...