(dissenting).

As Chief Justice Burger said in his dissent in United States v. Martin Linen Supply Co., 430 U. S. 564, 581, 97 S. Ct. 1349, 1360, 51 L. Ed. 2d 642, 657 (1977),1 and as a review of the more *446recent cases reveals, with the narrow divisions among the Justices, there is “uncertainty” in the law concerning the double jeopardy protections of the Fifth Amendment, particularly witli respect to the Government’s right of appeal. But there is certainty as to some fundamental principles: (1) each case must be judged on its own circumstances to avoid application of an abstract formula, Wade v. Hunter, 336 U. S. 684, 691, 69 S. Ct. 834, 93 L. Ed. 974 (1949); United States v. Perez, 22 U. S. (9 Wheat.) 579, 6 L. Ed. 165 (18,24); State v. Rechtschaffer, 70 N. J. 395, 405-406 (1976) ; State v. Farmer, 48 N. J. 145, 174 (1966), cert. den. 386 U. S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967); State v. Laganella, 144 N. J. Super. 268, 287 (App. Div.), app. dism. 74 N. J. 256 (1976); (2) the policies of the protection are far more important than a partieluar label put upon its action by a court, Lee v. United States, 432 U. S. 23, 30, 97 S. Ct. 2141, 2146, 53 L. Ed. 2d 80, 87 (1977) ; United States v. Martin Linen Supply Co., supra, 430 U. S. at 571, 97 S. Ct. at 1354, 51 L. Ed. 2d at .651; State v. Currie, 41 N. J. 531, 539 (1964); (3) the interests involved are not those alone of a defendant but also involve society’s interest in fair trials designed to end in just judgments, Illinois v. Somerville, 410 U. S. 458, 469, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973); Wade v. Hunter, supra, 336 U. S. at 689, 69 S. Ct. 834; State v. Rechtschaffer, supra, 70 N. J. at 406; (4) where there is an imperious necessity to do so defendant’s interest must be subordinated to the public’s interest. Dotmum v. United States, 372 U. S. 734, 736, 83 S. ct. 1033, 10 L. Ed. 2d 100 (1963); Wade v. Hunter, supra, 336 U. S. at 689, 69 S. Ct. 834; (5) defendants have never been held to haA^e an absolute right to be placed in jeopardy only once on any given criminal charge, see United States v. Jorn, 400 U. S. 470, 483-484, 91 S. Ct. 547, 27 *447L. Ed. 2d 548 (1971), and the Double Jeopardy Clause does not operate mechanistically to mean that once an accused has been put on trial regularly the proceeding must run its ordinary course to judgment or acquittal, State v. Farmer, supra, 48 N. J. at 174, and (6) the fact that defendant was placed in jeopardy at a first trial “begins, rather than ends, the inquiry.” Illinois v. Somerville, supra, 410 U. S. at 467, 93 S. Ct. 10662.

On the issue of double jeopardy, it is principally because I conceive that the majority has prescinded from those considerations and because of its misconception of the nature of the trial court’s action here, i. e., whether or not it was really an “acquittal” of defendant, that I respectfully dissent. I also disagree with the majority on the application of R. 2:3-1 (appeals by the State). On that issue I thoroughly agree with Judge Fritz’ analysis of that rule in State v. Laganella, supra, 144 N. J. Super, at 283-284. The Supreme Court has held that 18 U. S. C. A. § 3731, which permits the Government to appeal in criminal eases, is meant to pose no greater harrier to such appeals than is posed by the Constitution itself. United States v. Martin Linen Supply Co., supra, 430 U. S. at 568, 97 S. Ct. at 1352, 51 L. Ed. 2d at 649. Similar considerations apply in the construction of R. 2:3 — 1, our counterpart to the federal statute. See Laganella, supra, 144 N. J. Super, at 284. I do not disagree with the majority’s holding that proof of “knowledge” on defendant’s part is a necessary element of the offense with which he was here charged under N. J. S. A. 2A.-85-2.

A

The “circumstances” of this case.

The “circumstances” peculiar to this case are found in the record below. The majority and I view that record dif*448ferently. That difference presents a fundamental reason why I depart from my colleagues. The majority opinion assumes that the only cognizable opening by the State consisted of what the prosecutor asserted before the luncheon recess— i. e., that he was unable to prove that defendant had actual knowledge of the commission of the crime by Speight. The majority dismisses out of hand the fact that, after the luncheon recess — but before any evidence was offered and before the judge ruled on defendant’s motion to dismiss — the prosecutor advised the judge that, at lunch, he had learned that defendant had knowledge of the commission of the crime by Speight and that the State was prepared to offer testimony to that effect. As the judge said:

After lunch Mr. Graves [the assistant prosecutor] represents to us, and I am sure truthfully, that he has been advised that there is available testimony that the defendant Lynch was aware of the commission of the crime because he was present at it. [Emphasis supplied]

Defense counsel objected on the ground that he had not been afforded notice or discovery of the State’s intention to prove knowledge.

The judge observed:

It would be the utmost technicality to dismiss merely because the State .did not allege it [knowledge] in its opening. I would, as I indicated before, permit the State to reopen all other things being satisfied.

However, the judge further noted that the State, not being-prepared to prove knowledge until after the luncheon recess, "naturally did not provide any discovery to the defendant of that fact. It would be unfair in the extreme to put the defendant to a trial today on the issue of his knowledge of the actual commission of the crime.” (Emphasis supplied). In addition, the judge stated: "I would not permit the State because of the lateness of the -notice of this information to proceed with proof” that defendant had actual knowledge *449of the crime. The judge’s decision to dismiss the indictment after this ruling was rendered because, as he said, “I see no point in going through the charade.”

It is at once apparent that the trial judge undertook no considered evaluation of the facts. Thus, I view the dismissal of the indictment as nothing more than a ruling that the State could not proceed to prove its case because it failed to provide discovery under B. 3:13-3. I consider the action of the trial judge to be a discretionary one, analogous to the grant or denial of a mistrial.

B. 3:13-3 reads, in pertinent part:

(f) Continuing Duty to Disclose: Failure to Comply. If * * * during trial a party discovers additional material or witnesses previously requested or ordered subject to discovery or inspection, he shall promptly notify the other party or his attorney of the existence thereof. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate.

Pursuant to that rule, when the State, at the beginning of the trial and before any evidence was presented, advised the judge that it then had available witnesses to prove defendant’s knowledge of Speight’s commission of the crime, the judge was not limited to proceeding with the trial, as he said, “today.” He had the discretion to (1) prohibit the use of the newly available testimony; (2) order the State to advise the defense of the names of the new witnesses; (3) grant a continuance, or (4) declare a mistrial in order to give defendant an opportunity to examine the new evidence and adjourn the trial until defendant had sufficient time.

In my view, the situation confronting the trial judge was not unlike that on the record in United States v. Dinitz, 424 U. S. 600, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976), where the trial judge excluded one of defendant’s counsel *450from the trial as a result of the attorney’s conduct in delivering his opening statement. There the judge had three choices: (1) to stay the trial to allow an application to review the ouster of counsel, (2) continuation of the trial with existing counsel, or (3) a mistrial. See State v. Rechtschafer, supra> 70 N. J. at 409. Here the trial judge had the discretion to adopt any of the choices offered by B. 3: 13-3. In Dinitz the trial judge granted defendant’s motion for mistrial and defendant then moved to dismiss the indictment on the ground that a retrial would follow, thereby implicating the Double Jeopardy Clause. The motion was denied. The Court of Appeals reversed. Upon certiorari the Supreme Court reinstated the District Court order denying dismissal. Mr! Justice Stewart, writing for the majority,. distinguished between mistrials granted by the judge on his own motion and those granted at defendant’s request. In the latter instance he said that when a defendant moves for the mistrial because of some judicial or prosecutorial error, it is his choice either to run the risk of conviction followed by appeal and reversal, or to obtain the mistrial and later undergo a new trial. He pointed out that if misconduct by the prosecutor or bad faith conduct by the judge brings on the motion for a mistrial, a retrial is barred. Since there was no such improper conduct by the prosecutor or the judge, the 'Supreme Court held that a retrial, ordered by the judge in exercise of his discretion, did not violate the Double Jeopardy Clause.

Here, too, when the trial judge was confronted with the choices set forth in B. 3:13-3, a discretionary ruling was called for. He exercised that function by refusing to permit the use of the testimony — this although, as he found, the prosecutor had truthfully advised that the evidence had only been uncovered during the luncheon recess. Thus, as in Dinitz, there was no misconduct which would have prevented a retrial, for the judge found that the prosecutor had acted in entire good faith.

*451In his opinion for the court in State v. Rechtschafer, supra, Justice Sehreiber reduced the inquiry on a mistrial issue to the practicalities involved:

The common threads that run through the Supreme Court cases are centered about the propriety of the trial court’s granting sua sponte the mistrial and its cause. Did the trial court properly exercise its discretion so that a mistrial was justified? Did it have a viable alternative? If justified, what circumstances created the situation? Was it due to prosecutorial or defense misconduct? Will a second trial accord with the ends of public justice and with proper judicial administration? Will the defendant be prejudiced by a second trial, and if so, to what extent? See State v. Hudson, 139 N. J. Super. 360 (App. Div. 1976). [70 N. J. at 410-411]

Here, patently, the trial judge had a "viable alternative” to dismissing the indictment. He could have permitted the amendment of the opening, continued the trial or, if necessary, he could have adjourned it and ordered a new trial at a later date. I therefore consider the dismissal of the indictment to be an abuse of discretion. It was a dismissal only on a procedural ground, not on the merits, and double jeopardy considerations do not bar the State’s appeal. State v. Laganella, supra, 144 N. J. Super, at 286-288.

The court in Laganella, in an opinion thoroughly discussing the relevant policy considerations, held that dismissal of an indictment on the ground of failure of the State to comply with discovery under R. 3 .T3-3 (f) was a mistaken exercise of discretion and double jeopardy considerations did not bar appeal by the State. Compare State v. Farmer, supra, where it was held that declaration of a mistrial in order to afford defendant full discovery was not an abuse of discretion and retrial did not violate the Due Process Clause.

The majority distinguishes Laganella by noting:

The trial judge in Laganella never intended to pass on the essential merits of the State’s case; rather the dismissal was based upon its perception of the impropriety of the State’s trial strategy. Here, of course, no impropriety on the part of the State played any role *452in the dismissal; rather the dismissal was based simply upon the court’s view that the announced State’s proofs were insufficient as a matter of law.

I submit that the dismissal here was not on the merits any more than was the dismissal in Laganella. The decision of the trial judge here, stripped of its label of “acquittal” (see below), was not based on the ground that “the State’s proofs were insufficient as a matter of law.” Rather, the proofs of the State, as proffered by the prosecutor after the luncheon recess, were precluded by the judge’s action, rather than considered insufficient.

The leading case of United States v. Perez, supra, holds that a court has the authority to discharge a jury from giving any verdict “whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated,” and a second trial is not barred by double jeopardy considerations. 22 U. S. (9 Wheat.) at 580. In my view, the circumstances of this case make it evident that a “manifest necessity” for mistrial existed and the ends of “public justice” — i. e., the State’s right to obtain a just judgment and to bring criminal defendants to trial — were frustrated by the precipitous dismissal of the indictment.

B

Was the judgment below a true “acquittal"?

The majority asserts that the dismissal of the indictment is “the exact equivalent of an acquittal” and the “decision was one on the merits.” Though the trial judge’s decision on defendant’s motion was merely a dismissal of the indictment, the judgment entered does call it an “acquittal.” But in this area we are not concerned with the label or the form of the court’s action. Lee v. United States, supra, 432 U. S. 23, 30, 97 S. Ct. 2141, 2146, 53 L. Ed. 80, 87; United States v. Martin Linen Supply Co., supra, 430 U. S. 564, 571, 97 *453S. Ct. 1349, 1354, 51 L. Ed. 2d 642, 651, or with “technisms,” State v. Currie, supra, 41 N. J. 531, 539. In my view, the dismissal was neither an acquittal nor a judgment on the merits, for it was not a resolution of the factual elements of the offense charged. The majority cites Martin Linen Supply Co. for the principle that “a judgment of acquittal being a disposition on the merits after a jury had been discharged for failure to agree, barred defendant’s retrial.” True. But the majority fails to state that Justice Brennan’s opinion in Martin Linen clearly demonstrates what an acquittal is — a resolution of some or all of the factual elements of the offense charged. He said:

* * * we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.

There can be no question that the judgments of acquittal entered here by the District Court were “acquittals” in substance as well as form. The District Court plainly granted the Rule 29(c) motion on the view that the Government had not proved facts constituting criminal contempt. * * * In entering the judgments of acquittal, the Court also recorded its view that “the Government has failed to prove the material allegations beyond a reasonable doubt” and that “defendant should be found ‘not guilty.’ ”

Thus, it is plain that the District Court in this case evaluated the government’s evidence and determined that it was legally insufficient to sustain a conviction. [430 U. S. at 571, 97 S. Ct. at 1354, 51 L. Ed. 2d at 651; emphasis supplied.]

And, in his concurring opinion, Justice Stevens noted with reference to the Senate Report on the Criminal Appeals Act of 1970:

* * * the Committee believed that the Constitution barred any appeal from an acquittal or from a dismissal amounting to an acquittal; “[a] true acquittal is based upon the insufficiency of the evidence to prove an element of the offense.” Id., at 11.

The same understanding was demonstrated by the bill’s sponsor when he presented the Senate Report on the floor. He summarized the bill as providing that “the Government has the right to appeal any ruling by a district court in a criminal ease which dismisses a prosecution in favor of a defendant except where the ruling is an *454acquittal”; he also presented a letter from the Solicitor General explaining that the bill would allow “an appeal from any dismissal except one amounting to a ‘judgment of acquittal,’ i. e., a factual judgment that the defendant is mot guilty of the crime charged and is thereby entitled to protection against double jeopardy." 116 Cong. Rec. 35659 (1970). (Remarks of Sen. Hruska). [Id., 430 U. S. at 579, 97 S. Ct. at 1358, 51 L. Ed. 2d at 655-656; emphasis supplied]

In United States v. Sisson, 399 U. S. 267, 90 S. Ct. 2117, 26 L. Ed. 2d 608 (1970), the issue was whether the action of the trial court was an “arrest or judgment” or an acquittal. -Mr. Justice Harlan, expressing the view of five members of the court, held that the District Court’s decision, depending as it did on facts not in the indictment but developed at the trial, was an acquittal. 399 U. S. at 288, 90 S. Ct. 2117. In Section 11(c) of that opinion he said:

The same reason underlying our conclusion that this was not a decision arresting judgment — i.e., that the disposition is bottomed on factual conclusions not found in the indictment but instead made on the basis of evidence adduced at the trial — convinces us that the decision was in fact an acquittal rendered by the trial court after the jury’s verdict of guilty. [399 U. S. at 288, 90 S. Ct. at 2129; emphasis supplied]

And, in United States v. Wilson, 420 U. S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975), Mr. Justice Marhall, while stating that the court had no occasion to determine whether the ruling in Wilson’s favor was actually an acquittal (420 U. S. at 336, 95 S. Ct. 1013), notes that in the course of the debates over the Bill of Eights there was no suggestion that the Double Jeopardy Clause imposed any general ban on appeals by the prosecution. He notes, further, that

The only restriction on appeal rights mentioned in any of the proposed versions of the Clause was in Maryland’s suggestion that ‘there shall be * * * no appeal from matter of fact,’ which was apparently intended to apply equally to the prosecution and defense. [420 U. S. at 342, 95 S. Ct. at 1021; emphasis supplied]

*455And, in interpreting the opinion of Justice Harlan in United States v. Sisson, supra, Justice Marshall reiterates:

In Part II-c of the opinion, for which Mr. Justice Black provided a majority of the Court, Mr. Justice Harlan explained the third reason for concluding that the District Court’s order was not an arrest of judgment: because the order was “bottomed on factual conclusions not found in the indictment but instead made on the basis of evidence adduced at the trial,” it was an acquittal “rendered by the trial court after the jury’s verdict of guilty.” 399 U. S. at 288, 90 S. Ct. at 2129, 26 L. Ed. 2d 608. [420 U. S. at 349, 95 S. Ct. 1013, 1025 emphasis supplied]

Finally, in Lee v. United States, supra, Mr. Justice Powell for the majority, emphasized:

We recently made it clear that a trial court’s ruling in favor of the defendant is an acquittal only if it “actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” United States v. Marlin Linen Supply Co., 430 U. S. 564, 571, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977). [432 U. S. at 30, 97 S. Ct. at 2146, 53 L. Ed. 2d at 87, n. 8 emphasis supplied]

Here there never was a resolution of any of the factual elements of the case by the trier of fact. That was prevented by defendant’s motion to dismiss the indictment. In my judgment, the order below, whatever its label, was not an acquittal.

C

The Wilson — JenTcins — Serfass trilogy and Lee v. United Slates.

As I read the majority opinion its theme seems to be that, after “jeopardy attaches” if there is a dismissal of the charge, a subsequent appeal by the State is barred if its success would result in a retrial of defendant. In support of that position the cases of United States v. Wilson, supra; United States v. Jenkins, supra, and Serfass v. United States, 420 U. S. 377, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975), are cited.

It is true that the language in Wilson and JenTcins does state that where a successful government appeal from a dis*456missal of a criminal charge would not result in a retrial, double jeopardy policies are not offended. The reasoning is that, in the event of such successful appeal, there would be simply a reinstatement of the guilty verdict originally found against defendant and thus no second trial. But neither Wilson nor Jenkins reaches the question presented here because (a) they do not involve what I consider a discretionary action of the trial judge in dismissing an indictment; (b) in both cases the dismissal occurred after presentation of all the evidence, and (c) they do not reach the question whether, in such a context, where the successful appeal by the government may result in retrial — as in mistrial or analogous cases— double jeopardy policies would be offended. In this case there has been no trial, no evidence has been introduced against defendant and there has been no resolution of any of the factual issues involved.

In Jenkins, where the Supreme Court held that the government’s appeal was barred by double jeopardy considerations, the court noted that the District Court had grounded its post-trial dismissal on findings of fact based on the evidence which resolved against defendant many (but not all) of the factual elements of the crime involved. 420 U. S. at 367, 95 S. Ct. 1006. It was in this context that the court held that defendant could not be put to trial for the second time to defend against those same facts. Defendant in the present case has not been subjected to any trial where evidence has been introduced against him or where any of the essential elements of the crime have been resolved either for or against him by the trier of the facts.

In 8 erf ass the Supreme Court held that the government’s appeal from a pretrial dismissal of the indictment against him was not barred. There the allowance of the appeal was permitted simply because, since the dismissal was in a pretrial order, and since defendant had not yet “been put to trial before the trier of the facts,” jeopardy had not attached. As Chief Justice Burger put it, “[A]n accused must suffer jeopardy before he can suffer double jeopardy.” 420 U. S. *457at 393, 95 S. Ct. at 1065. I fail to see the relevance of the 8 erf ass holding to this case.

With reference to the Wilson-Jenhins-Serfass trilogy, the majority opinion states: “Nothing in any of these cases suggests that a trial error favoring a defendant could be corrected on the State’s appeal if the successful result of the appeal would be defendant’s retrial.” That is true, but neither do any of those cases suggest that where a trial judge takes discretionary action and invokes the signposts of “manifest necessity” and “public justice” — as I conceive the situation to be here — the government’s appeal would be barred. To apply such a rigid rule that would bar any appeal by the State which may result in a retrial would be an “unconscionable result.” State v. Rechtschaffer, supra, 70 N. J. at 405. Similarly, in Wade v. Hunter, it was said:

The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many eases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. [336 U. S. at 688-689, 69 S. Ct. at 837]

See also, United States v. Jorn, supra, 400 U. S. at 484, 91 S. Ct. 547, and State v. Farmer, supra, 48 N. J. at 174.

Further, I conceive that the majority attaches an inordinate conclusive significance to the time that “jeopardy attaches,” as though, that event having happened, the double jeopardy problem is solved and there can be no retrial after dismissal. But as said in Serfass v. United States, supra:

It is true that we have disparaged “rigid, mechanical” rules in the interpretation of the Double Jeopardy Clause. Illinois v. Somerville, 410 U. S. 458, 467, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973). However, we also observed in that case that “the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.” Ibid. Cf. United States v. Sisson, 399 U. S. at 303, 90 S. Ct. 2117, 26 L. Ed. 2d *458608. Implicit in the latter statement is the premise that the “constitutional polices underpinning the Fifth Amendment’s guarantee” are not implicated before that point in the proceedings at which “jeopardy attaches.” United States v. Jorn, 400 U. S. at 480, 91 S. Ct. 547, 27 L. Ed. 2d 543. As we have noted above, the Court has consistently adhered to the view that jeopardy does not attach until a defendant is “put to trial before the trier of the facts, whether the trier be a jury or a judge.” Id., at 479, 27 L. Ed 2d 543.

This is by no means a mere technicality, nor is it a “rigid, mer chanical” rule. It is, of course, like most legal rules, an attempt to impart content to an abstraction. [420 U. S. at 390-391, 95 S. Ct. at 1064]

Defendant here has never been “put to trial before the trier of the facts,” for, as said above, there has been no resolution of any of the fact issues involved.

Further, I read Lee v. United States, supra, 432 U. S. 23, 97 S. Ct. 2141, 53 L. Ed. 2d 80, as refuting the contention of the majority that, once jeopardy attaches with a dismissal following, a retrial is barred. Lee was a bench trial. Therefore jeopardy attached when the court began to hear evidence. Serfass v. United States, supra, 420 U. S. at 488, 95 S. Ct. 1055. After the prosecutor’s opening statement defense counsel moved to dismiss the information. The trial judge reserved decision and the government presented its case consisting of the testimony of two witnesses. The judge then recessed for 15 minutes. After the recess, defense counsel moved for a judgment of acquittal on the ground that the prosecution had failed to establish an essential element of the offense. Thereupon the judge granted defendant’s initial motion to dismiss because of the failure of the information to charge knowledge or intent. Lee was later indicted for the same offense. On substantially the same evidence as was presented on the first trial he was convicted. On appeal the Court of Appeals for the Seventh Circuit affirmed, rejecting Lee’s claim that the second trial was barred by the Double Jeopardy Clause. 539 F. 2d 612 (1976).

On certiorari the Supreme Court affirmed. One of the principal arguments by Lee was - that once the court had *459determined to hear evidence in the first trial, he was entitled to have it proceed to a formal finding of guilt or innocence. Therefore he argued that the conviction on the second trial violated the Double Jeopardy Clause. Justice Powell, writing for the majority, cited United States v. Dinitz, supra, for the proposition that where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution. 432 U. S. at 32, 97 S. Ct. at 2147, 53 L. Ed. 2d at 89. The court emphasized that both in Dinitz and in Lee the proceedings were terminated at defendant’s request. The court reiterated the Dinitz principle that there was no double jeopardy barrier to petitioner’s retrial unless the judicial or prosecutorial error that prompted defendant’s motion was “intended to provoke” the motion or was otherwise “motivated” by bad faith or undertaken to “harass” or “prejudice” defendant. Id., 432 U. S. at 32, 97 S. Ct. at 2147, 53 L. Ed. 2d at 89. Since the errors in the first Lee trial were not the product of the kind of overreaching outlined in Dinitz, but were, at most, mere negligence, the court held that Lee’s second trial did not violate the Double Jeopardy Clause.

This case is strikingly similar to Lee. In both cases: (1) jeopardy had attached when the dismissal was entered; (2) the trial was peremptorily terminated at defendant’s request by reason of his motion. I view Lee as refuting the majority’s contention that a dismissal after jeopardy has attached bars a retrial.

D

Balancing society’s interests against those of defendant in the circumstances of this case.

Further citation is not needed to restate the policy considerations in applying the Double Jeopardy Clause. Suffice to say that the competing interests of society and the defendant are to be weighed in striking a balance not offensive *460to the Clause. State v. Rechtschaffer, supra, 70 N. J. at 405. Defendant’s “valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, supra, 336 U. S. at 689, 69 S. Ct. at 837. As we have said above, balanced against the interests of defendant is the right of the State to bring criminals to trial in the interests of public justice. Illinois v. Somerville, supra.

Thus we ask: in reality, what harassment would reversal of the dismissal of the indictment here impose upon defendant? “Harassment is not a synonym for inconvenience. All repeated prosecutions distress defendants. Harassment, at least in double jeopardy law, involves misconduct by the prosecutor as well as hardship to the defendant.” Comment, “Twice in Jeopardy,” 75 Yale Law J. 262, 286 (1975). It has been noted that reprosecution burdens and disadvantages defendant more after he has had a full trial than if it ends prematurely. Comment, “Twice in Jeopardy,” supra at 288. The brevity of the first trial is a factor in determining whether a retrial should be barred. Gori v. United States, 367 U. S. 364, 81 S. Ct. 1523, 6 L. Ed. 2d 901 (1961); State v. Farmer, supra, 48 N. J. at 184. In the Circuit Court opinion in Gori the brevity of the trial was noted and the court said that “for the defendant to receive absolution for his crime, later proven quite completely, because the judge acted too hastily in his interest, would be an injustice to the public in the particular case and a dangerous precedent for the future.” United States v. Gori, 282 F. 2d 43, 48 (2 Cir. 1960). Except for the fact that defendant’s guilt in the present case has not yet been proven, the statement is relevant here. The State should not be deprived of the opportunity to prove it by barring retrial.

I would submit that Justice Clark’s dissent in the 5-4 decision of Downum v. United States, supra, suggests the proper principle to be applied in measuring the ineon*461venience to which defendant would be put in the event of retrial: <

As I see the problem, the issue is whether the action of the prosecutor in failing to check on the presence of his witness before allowing a jury to be sworn was of such moment that it constituted a dcprival of the petitioner’s rights and entitled him to a verdict of acquittal without any trial on the merits. Obviously under the facts here he suffered no such deprivation. Ever since Perez this Court has recognized that the “ends of public justice” must be considered in determining such a question. 9 Wheat., at 580. In this light I cannot see how this Court finds that the trial judge abused his discretion in affording the Government a two-day period in which to bring forward its key witness who, to its surprise, was found to be temporarily absent. I believe that the “ends of public justice,” to which Mr. Justice Story referred in Perez, require that the Government have a fair opportunity to present the people’s case and obtain adjudication on the merits, rather than that the criminal be turned free because of the harmless oversight of the prosecutor. [372 U. S. at 743, 83 S. Ct. at 1038]

Here the opening by the State had taken only a relatively short time. The degree of defendant’s “harassment” by a second trial would be minimal considering the relatively slight exposure he had at the first trial. In this case I consider that Ms right to have the trial completed was subordinate to the public’s interest in fair trials designed to end in a just judgment. Since the questions of “manifest necessity” and “public justice” depend on the circumstances of each case, I feel that the circumstances here demonstrate that both factors required the trial judge to deny defendant’s motion to dismiss and to either permit amendment of the the State’s opening, declare a mistrial, or grant a continuance or adjournment.

For the foregoing reasons I would reverse the dismissal and order a new trial to be scheduled after the State has fully complied with the discovery rule. B. 3:13 — 3.