January 4, 2017
Timpone, J., writing for a majority of the Court.
appeal, the Court clarifies the methodology to be used in
analyzing whether two offenses are the "same
offense" for double jeopardy purposes. Since the 1980s,
New Jersey courts have applied both the same-evidence test
and the same-elements test articulated in Blockburger v.
United States, 284 U.S. 299 (1932), in double jeopardy
determinations. A finding that offenses met either test
resulted in double jeopardy protection for the defendant.
October 2010, the Camden County police arrested defendant for
selling marijuana to an undercover police officer. Defendant
was charged in a warrant complaint with possession of
marijuana with intent to distribute and possession of a
controlled dangerous substance (CDS) with intent to
distribute on or within 1000 feet of a school property. In a
separate municipal summons, defendant was charged with the
disorderly-persons offense of possession of fifty grams or
less of marijuana. Those charges arose from the same
jury returned an indictment charging defendant with the
offenses in the warrant complaint. Defendant then appeared
pro se in municipal court to resolve the disorderly-persons
offense. At some point before that video proceeding, the
original municipal charge was amended to a different
disorderly-persons offense- loitering to possess marijuana.
Defendant asked the municipal court judge, "why they got
me going to Superior Court for this, Your Honor?" The
judge then responded that defendant was "not going to
Superior Court for this, " but rather for an unrelated
child support issue. Defendant then pled guilty to loitering
to possess marijuana.
defendant moved to dismiss the Superior Court indictment on
double-jeopardy grounds, arguing that prosecution on the
possession charges was barred because he had already pled
guilty to an offense that arose from the same conduct. The
Superior Court denied defendant's motion to dismiss,
reasoning that prosecution on the indicted charges was not
barred because it required proof of an additional
element-proximity to a school. Defendant pled guilty to
possession of CDS with intent to distribute within 1000 feet
of a school (the school-zone charge), but preserved his right
to appeal the denial of the motion to dismiss.
appeal, the Appellate Division remanded for a finding on the
circumstances surrounding the amendment of the
disorderly-persons offense. The panel noted that a plea to
the original municipal charge, instead of the amended one,
could have led to a different result after applying the
remand, the Superior Court found no direct evidence as to the
circumstances surrounding the amendment, and the prosecutor
represented that his office was not informed of
defendant's municipal court proceedings. Despite
defendant's expressed confusion during the municipal
court plea hearing, the Superior Court concluded that the
school-zone prosecution was not precluded by notions of
appealed again, arguing that double jeopardy barred
prosecution on the school-zone charge. The Appellate Division
agreed, finding that, although the second prosecution was not
barred under the same-elements test, it was barred under the
same-evidence test. 443 N.J.Super. 212, 220, 225-27 (App.Div.
Court granted the State's petition for certification. 225
N.J. 339 (2016).
New Jersey now joins the majority of jurisdictions in
returning to the Blockburger same-elements test as
the sole test for determining what constitutes the "same
offense" for purposes of double jeopardy. In the
interest of justice, the Court applied both the same-elements
test and the now-replaced same-evidence test in this case;
going forward, for offenses committed after the issuance of
this opinion, the same-elements test will serve as the
singular framework for determining whether two charges are
the same offense for purposes of double-jeopardy analysis.
Here, the municipal court had jurisdiction to resolve
defendant's disorderly-persons charge pursuant to
N.J.S.A. 2B:12-17, and failure to join does not automatically
bar subsequent prosecution. For judicial efficiency and
fairness to defendants, the Court urges careful coordination
between the municipal courts and county prosecutors. (pp.
Court has consistently interpreted the State
Constitution's double-jeopardy protection as coextensive
with the guarantee of the federal Constitution. A prime
concern when reviewing a double-jeopardy claim is whether the
second prosecution is for the same offense involved in the
first. (pp. 10-11)
United States Supreme Court first announced its test for
determining whether a second prosecution is for the same
offense in Blockburger, supra, 284 U.S. at
304: If each statute at issue requires proof of an element
that the other does not, they do not constitute the same
offense and a second prosecution may proceed. This has come
to be known as the same-elements test. (pp. 11-12)
Court read the language in Illinois v. Vitale, 447
U.S. 410, 421 (1980), as creating an alternative to
Blockburger's same-elements test-the
same-evidence test. The United States Supreme Court reached
the same conclusion in Grady v. Corbin, 495 U.S.
508, 510 (1990), but revised its position in United
States v. Dixon, 509 U.S. 688, 704, 708-09 (1993), in
which it deemed the same-evidence test unworkable and
reinstated the Blockburger same-elements test as the
sole measure of whether two offenses constitute the same
offense. (pp. 12-14)
Since Dixon, the majority of states have similarly
ruled that the Blockburger same-elements test sets
forth the proper test for determining whether two charges are
the same offense. Until this case, the Court has not had
occasion to reevaluate double-jeopardy jurisprudence in light
of Dixon's return to the same-elements test. As
a result, appellate panels have split over whether the
same-evidence test still applies in New Jersey. (pp. 14-16)
Court now adopts the same-elements test as the sole
double-jeopardy analysis, thereby realigning New Jersey law
with federal law. The same-elements test is effortlessly
applied at early stages of prosecution; it is capable of
producing uniform, predictable results; and it aids
defendants by reducing multiple court appearances.
Rule 3:15-1(b) bars subsequent prosecutions for
indictable offenses, and failure by the prosecution to
properly join indictable offenses bars a subsequent
prosecution. State v. Williams, 172 N.J. 361, 368
(2002). The Court recognizes a narrow circumstance where it
is possible that neither the same-elements test nor the rule
in Williams would prevent a second prosecution; if
those unlikely events unfolded, the second prosecution might
well be barred on joinder or fundamental fairness grounds. As
a further safeguard, the Court invites the Supreme Court
Committee on Criminal Practice to review the joinder rule and
consider adding non-indictable offenses to it. (pp. 16-21)
Because the decision establishes a new rule of law, the Court
applies the new singular same-elements standard prospectively
to offenses committed after the date of this opinion. In
fairness to defendant, the Court conducts double-jeopardy
analysis using both the same-elements test and the
now-removed same-evidence test. Application of the
Blockburger same-elements test would lead to the
conclusion that loitering to possess marijuana is not the
same offense as possession within a school zone. Each offense
contains at least one element not required to prove the
other. Under the same-evidence test, however, successive
prosecution for the school-zone offense is prohibited because
it is based on the same evidence that supported the plea and
conviction on the loitering offense. (pp. 21-23)
offenses committed after the issuance of this opinion, the
same-elements test will serve as the singular framework for
determining whether two charges are the same offense for
double-jeopardy analysis. (p. 23)
judgment of the Appellate Division is AFFIRMED.
Defendant's conviction and sentence on the school-zone
offense are vacated.
JUSTICE ALBIN, DISSENTING, expresses the
view that majority's new rule cannot be squared with the
principles of fairness that previously animated New
Jersey's double-jeopardy jurisprudence. According to
Justice Albin, the majority's reversion to the
same-elements test will allow the State to pursue repeated
prosecutions for the same offense despite an earlier
conviction or acquittal.
JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, and
SOLOMON join in JUSTICE TIMPONE's opinion. JUSTICE ALBIN
filed a separate, dissenting opinion in which JUSTICE
appeal from and certification to the Superior Court,
Appellate Division, whose opinion is reported at 443
N.J.Super. 212 (App. Div. 2015).
A. Glyn, Deputy Attorney General, argued the cause for
appellant (Christopher S. Porrino, Attorney General of New
P. Keenan, Assistant Deputy Public Defender, argued the cause
for respondent (Joseph E. Krakora, Public Defender,
appeal, we clarify the methodology to be used in analyzing
whether two offenses are the "same offense" for
double jeopardy purposes. Since the 1980s, we have applied
both the same-evidence test and the same-elements test in
double jeopardy determinations. A finding that offenses met
either test resulted in double jeopardy protection for the
defendant. In contrast, the federal courts and most state
jurisdictions apply only the same-elements test, as
articulated by the United States Supreme Court in
Blockburger v. United States, 284 U.S. 299, 52 S.Ct.
180, 76 L.Ed. 306 (1932).
join the majority of jurisdictions in returning to the
Blockburger same-elements test as the sole test for
determining what constitutes the "same offense" for
purposes of double jeopardy. Here, because we are changing
course, we examine the facts through the additional lens of
the now-replaced same-evidence test as a matter of fairness
to defendant Rodney Miles.
October 2010, the Camden County police arrested defendant for
selling marijuana to an undercover police officer on the
corner of 27th and Washington Streets in Camden, New Jersey.
Defendant was charged in a warrant complaint with possession
of marijuana with intent to distribute, in violation of
N.J.S.A. 2C:35-5(b)(12), and possession of a controlled
dangerous substance (CDS) with intent to distribute on or
within 1000 feet of a school property, in violation of
N.J.S.A. 2C:35-7. In a separate municipal summons, defendant
was charged with the disorderly-persons offense of possession
of fifty grams or less of marijuana, in violation of N.J.S.A.
2C:35-10(a)(4). Those charges arose from the same attempted
Camden County grand jury returned an indictment charging
defendant with the offenses in the warrant complaint.
Defendant then appeared pro se in municipal court to resolve
the disorderly-persons offense charged in the municipal
summons. Defendant appeared via video conference from the
county jail, where he was being held on an unrelated
child-support charge. At some point before that video
proceeding, the original municipal charge was amended to a
different disorderly-persons offense -- loitering to possess
marijuana, in violation of N.J.S.A. 2C:33-2.1(b)(1).
Confusion ensued as evidenced by the following colloquy
between the judge and defendant at the municipal court
Q. All right. You're charged on October 15, 2010, with
loitering to possess marijuana at 27th and Washington Street
A. Yes, sir.
Q. Do you wish to have an attorney in this matter?
A. No, sir. What -- they got me -- can I ask you something?
This is a municipal charge, right, Your Honor?
A. Well, why they got me going to Superior Court for this,
Your Honor? That's why I said I don't understand.
Q. No, no, you're not going to Superior Court for this.
You're going to Superior Court for child support, sir.
A. No, no, no, they had me --
Q. Trust me. I am not going to argue with you.
A. No, I'm not arguing.
Q. I'm not going to argue ...