NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5953-13T3

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Appellant, June 22, 2015

v. APPELLATE DIVISION

DATRELL T. WILLIAMS,

Defendant-Respondent.

________________________________________________________________

Argued March 23, 2015 – Decided June 22, 2015

Before Judges Lihotz, Espinosa and Rothstadt.

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).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

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.

I.

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,

(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

2 A-5953-13T3 and the offenses are within the jurisdiction of the court."

(internal quotation marks omitted).

In State v. Yoskowitz,

(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."

.

II.

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

3 A-5953-13T3 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,

(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.

4 A-5953-13T3 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 not happen. And so generally a year goes by.

5 A-5953-13T3 In response to a directive from the trial court, the

prosecutor's office provided a certification after the hearing

explaining the reason for the delay in charging defendant. The

certification stated the investigation was initiated in August

2011 and "remained active" until April 2013 in "an effort to

reach 2nd degree weight." The prosecutor's office had to close

the investigation after Detective McCullen resigned in April

2013 because he was the only undercover officer in contact with

defendant.

The trial judge rendered an oral decision granting

defendant's motion and dismissing Indictment No. 13-07-0671 with

prejudice. As we have noted, she did not find the prosecutor's

office acted with malice. She also determined neither double

jeopardy nor the mandatory joinder rule applied to require

dismissal of the indictment. Citing Gregory, the judge stated,

The doctrine of fundamental fairness protects a defendant from governmental harassment and oppression by multiple prosecution for the same wrongful conduct. . . . The fundamental fairness doctrine in the context of double jeopardy is based upon the reasonable expectation of the parties.

However, the judge found that Gregory was distinguishable.

She found further that defendant's case "clearly involved

different episodes."

6 A-5953-13T3 The trial judge acknowledged it was not feasible for the

prosecutor's office "to stop and canvass every single file that

the prosecutor has to determine whether" there are open cases

against a defendant before entering into a plea agreement. She

further accepted the legitimate objective of the prosecution to

keep the undercover investigation open to accumulate sales to

reach a weight that would result in a more serious charge

against defendant. She added,

But when a Prosecutor's Office does that and within its own office has another case going on involving the same defendant, it is this [c]ourt's belief that it should be the responsibility of someone in that Prosecutor's Office to coordinate those events and to understand what is going on.

. . . .

[T]here's some responsibility when a defendant has already pled. . . . [A]nd perhaps it’s just a matter of having some sort of a cross-reference within the Prosecutor's Office that before they come to court and . . . accept a plea . . . or go forward on a sentencing that someone from that office should be looking back to find out if there's a possibility that there's something out there pending. . . . This [c]ourt finds it is fundamentally unfair at this point to subject [defendant] to prosecution under this indictment . . . .

III.

"[O]ur courts have long held that a dismissal of an

indictment is a draconian remedy and should not be exercised

7 A-5953-13T3 except on the clearest and plainest ground." State v. Peterkin,

(App. Div.) (citations and internal

quotation marks omitted), certif. denied,

(1988);

see also State v. Hogan,

(App. Div.),

certif. denied,

(2001). "Dismissal is the last

resort because the public interest, the rights of victims and

the integrity of the criminal justice system are at stake."

State v. Ruffin,

(App. Div. 2004).

Even in a case in which we found an investigating officer's

"brazen misconduct" to be "wholly reprehensible," we reversed

the dismissal of seventeen indictments, stating, "we question

whether the public must pay the price by forfeiting its day in

court on otherwise properly found indictments."

. Therefore, although a motion

to dismiss an indictment is directed to the sound discretion of

the court, State v. Hogan,

(1996), "an

indictment should stand unless it is palpably defective." State

v. Lyons,

(App. Div. 2010) (citation

and internal quotation marks omitted).

In this case, the trial judge correctly ruled that the

compulsory joinder rule did not apply because the offenses were

neither based on the same conduct nor arose from the same

8 A-5953-13T3 episode.1 See

. The purely

legal question before us is whether the judge abused her

discretion by relying upon the doctrine of fundamental fairness

to dismiss the indictment. Review of a trial judge's legal

interpretations is de novo. State v. Grate,

(2015);

. "[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."

.

We acknowledge that "a trial court has inherent power to

fashion remedies in the interest of justice, which may include

dismissal of a[n] indictment for reasons of fundamental fairness

even in circumstances where a defendant's constitutional rights

are not implicated."

(citing State v. Cruz,

(2002)). However, our

review of the applicable legal principles and the record leads

us to conclude the trial judge mistakenly exercised her

discretion in dismissing the indictment as a matter of

fundamental fairness.

"For the most part," the concept of fundamental fairness

"has been employed when the scope of a particular constitutional

1 Although defendant argues on appeal that the offenses "appear[] to be part of the same broad criminal episode," he has not filed a cross-appeal from this ruling.

9 A-5953-13T3 protection has not been extended to protect a defendant."

. As the Court observed, the

doctrine "has been an 'elusive concept . . . [where] exact

boundaries are undefinable.'"

(alteration in original)

(quoting Bruce D. Greenberg, New Jersey's "Fairness and

Rightness" Doctrine,

, 928 (1984)).

The elusive quality of the doctrine is highlighted by the

fact that the "leading" cases described in Yoskowitz as

addressing fundamental fairness in the context of a multiple

prosecution,

, do not, in fact, turn on an

application of the doctrine.2 A review of cases that have

considered this issue is helpful to identify factors relevant to

a determination whether multiple prosecutions not barred by

double jeopardy or the compulsory joinder rule should be barred

as a matter of "fundamental fairness."

The issue in Gregory was whether the State could pursue

separate trials against a defendant for the sale of a small

quantity of heroin as well as possession with intent to

distribute a larger quantity of heroin that had been the source

2 In addition, although the issue of fairness in a multiple prosecution situation was discussed in both State v. Williams,

(2002), and State v. Veney,

(App. Div. 2009), the determinative question in both cases was whether the mandatory joinder rule, N.J.S.A. 2C:1-8(b) and Rule 3:15-1(b), barred the second prosecution.

;

.

10 A-5953-13T3 of the quantity sold.

. The

Court described the pertinent facts in Gregory as follows:

On December 27 the defendant had possession of all of the heroin in the bathroom cabinet when the undercover officer came to his apartment. The officer saw the heroin in the cabinet and purchased a small quantity in a glassine envelope which was taken therefrom. Though he then left the apartment he returned almost immediately with other officers to seize the remaining heroin. While the sale of the small quantity and the continuing possession of the larger quantity may under our case law be viewed here as separate offenses, surely the occurrences in their entirety at the defendant's apartment on December 27 involved the same conduct or the same criminal episode for purposes of procedural joinder.

[Id. at 522 (emphasis added).]

In announcing the mandatory joinder rule, the Court found

that a second trial for possession with intent to distribute was

barred because the prosecution would violate Section 1.07(2) of

the Model Penal Code.

The Court reasoned:

The Prosecutor was fully aware of all of the pertinent circumstances before the first indictment was returned. He had broad discretionary powers and in the exercise of his discretion he could have sought indictment for (1) the sale or (2) the possession with intent to distribute, or both. He sought and obtained indictment only for the sale and not until after trial thereon was completed did he seek and obtain indictment for the possession with intent to

11 A-5953-13T3 distribute. This course was patently unfair to the defendant and was in clear conflict with the goals and terms of § 1.07(2).

[Id. at 523 (emphasis added) (citation omitted).]

The Yoskowitz Court described State v. Currie,

(1964), as the "seminal double-jeopardy case decided on the

basis of fairness and the reasonable expectations of the

defendant. . . ."

. After a

motor vehicle stop, the defendant in Currie sped away, striking

one police officer, hitting the police car, and causing a second

officer to leap out of harm's way.

. The defendant was convicted in municipal court for

reckless driving and leaving the scene of an accident.

. He was convicted over one year later of atrocious

assault and battery and, in his appeal, argued the second

prosecution "was barred under principles of double jeopardy, and

res judicata or collateral estoppel."

.

The Court stated "the constitutional safeguard against

double jeopardy . . . justly assures that the State with its

great resources will not be permitted to harass and oppress the

individual by multiple prosecution or punishment for the same

offense."

. However, the Court observed, "[t]he

difficulty arises in determining just when we are dealing with

the same offense within the contemplation of the safeguard."

12 A-5953-13T3

The policies underlying the safeguard dictate that "[t]he

primary considerations should be fairness and fulfillment of

reasonable expectations in the light of the constitutional and

common law goals."

.

The Court also discussed the practical factors relevant to

a determination as to whether a second prosecution involves

"elements of oppression or harassment" or violates the

reasonable expectations of the defendant.

. The

Court noted that motor vehicle violations are tried

expeditiously, in a comparatively informal proceeding with a

limited evidential presentation in which the defendant faces

minor fines and jail terms.

The Court concluded, "The

elements of oppression or harassment historically aimed at by

the constitutional and common law prohibition are not

significantly involved; and permitting the second prosecution

would not violate the reasonable expectations attendant upon the

first proceeding while barring it would operate with gross

unfairness to the State."

Accordingly, the Court

rejected the defendant's claim that the second prosecution was

barred by double jeopardy, res judicata or collateral estoppel.

.

In State v. Tsoi,

(App. Div. 1987), we

reversed the dismissal of an indictment for third-degree theft

13 A-5953-13T3 by embezzlement based upon multiple thefts that followed the

defendant store clerk's guilty plea in municipal court to a

single theft of $85.

. We stated, "We do not

consider it reasonable that [the defendant] would . . . expect

that 67 other instances of embezzlement totaling over $6,000,

and known at that time only to her, would be disposed of upon

the single plea in municipal court."

. Applying the

principles articulated in Currie and Gregory, we held that the

elements of harassment and oppression were not present and the

second prosecution was not barred.

; see also

State v. Catanoso,

(App. Div.)

(holding defendant who was indicted twice for his participation

in a conspiracy to receive kickbacks had no reasonable

expectation that his trial on one "Canadian golfing junket

conspiracy would discharge his criminal responsibility for the

lengthy conspiracy . . . charged in the first indictment"),

certif. denied,

(1993).

Both State v. Tropea,

(1978) and State v.

Godfrey,

(App. Div.), certif. denied,

(1976), concerned attempts to prosecute a defendant on

charges after the State failed to prove his guilt in a prior

prosecution for a related offense.

14 A-5953-13T3 In Tropea, the defendant's conviction for operating his

vehicle at forty-four miles per hour in a twenty-five mile-per-

hour zone was reversed on appeal based on the State's failure to

prove the applicable speed limit. Id. at 311. Rather than

dismissing the charges, we remanded the matter for retrial.

Ibid. After granting certification, the Supreme Court elected

not to decide whether double jeopardy applied and instead barred

the second trial on fundamental fairness grounds. Id. at 315-

16. The Court explained:

Here the failure of the State to have produced an essential element of proof, namely, the applicable speed limit, remains without satisfactory explanation. It was raised by defendant as an objection at the trial level. While a defendant subjected to multiple speeding prosecutions may very well face less embarrassment, expense and anxiety than are encountered by those faced with criminal prosecutions, nevertheless the burdens to which he is subjected are not mere trifles. Under the circumstances of this case a rerun at the trial level would result in unwarranted harassment and should be avoided if the interests of justice will not otherwise be disserved.

They will not. Here another trial would merely afford the State another opportunity to produce evidence which it failed to muster at the original proceedings.

[Id. at 316 (emphasis added).]

The defendant in Godfrey was acquitted of receiving stolen

property by the trial judge because the proofs showed that

15 A-5953-13T3 defendant had himself stolen the van in question.3

. We concluded the State was

barred from subsequently prosecuting the defendant for stealing

the van and knowingly bringing the van into New Jersey, N.J.S.A.

2A:119-9.4 Godfrey, supra,

. Observing

that "the State, with knowledge of the facts, chose the wrong

statute under which to prosecute," we found such prosecution was

barred on both double jeopardy and fundamental fairness grounds

and, further, that the facts fell "squarely within Gregory."

.

In a case decided after Yoskowitz, a juvenile argued he

should not be prosecuted a second time on one of two counts when

the trial court had made no conclusion regarding his guilt or

innocence on the charge. State v. M.N.,

(App. Div. 1993). Although we found that a second

prosecution was not barred on double jeopardy grounds, we

concluded the doctrine of fundamental fairness barred re-

prosecution of that charge.

Still, we noted, "the

doctrine of fundamental fairness is to be sparingly applied."

3 N.J.S.A. 2A:139-3 provided, "Any person who receives or purchases a motor vehicle knowing it to have been stolen, is guilty of" an offense. 4 N.J.S.A. 2A:119-9 provided, "Any person who, having at any place without this state stolen property of another, . . . brings the same into this state, is guilty of" an offense.

16 A-5953-13T3

. "'It is appropriately applied in those rare cases

where not to do so will subject the defendant to oppression,

harassment or egregious deprivation.'"

(quoting

(Garibaldi, J., concurring and

dissenting)).

We reiterate that the offenses here are clearly separate

offenses not subject to the mandatory joinder rule or vulnerable

to dismissal on double jeopardy grounds. Although all the

offenses involved controlled dangerous substances and occurred

in August 2011, they concern different transactions and, indeed,

different drugs. The charge that resulted in a guilty plea

arose from a motor vehicle stop that yielded the recovery of a

quantity of marijuana. The indictment charged defendant with

discrete sales of cocaine to an undercover officer.

We then consider the factors relied upon in the caselaw to

determine whether a second prosecution that is not barred under

double jeopardy or mandatory joinder grounds should be dismissed

under the fundamental fairness doctrine. Among the factors to

be considered are: (1) the knowledge of the prosecutor regarding

offenses that are ripe for charging against a defendant; (2)

whether a second prosecution is attributable to malice, a

failure to establish guilt in a prior proceeding, or to a

legitimate prosecutorial objective; (3) whether elements of

17 A-5953-13T3 harassment or oppression are present, and (4) whether the

reasonable expectations of the defendant are defeated by a

subsequent prosecution. In assessing these factors, we consider

the facts "in a practical light." See

.

In Gregory, the Court found it significant that the

prosecutor was "fully aware" of the facts underlying the two

offenses and exercised his discretion in a manner that was

"patently unfair" to the defendant.

. Although the prosecutor here must be charged with

knowledge of the undercover sales, the record fails to show the

prosecution was motivated by malice and the trial court so

found. Moreover, the delay in bringing those charges was

attributable to legitimate prosecution objectives - the

protection of an ongoing undercover investigation and the effort

to continue the investigation until the sales amounted to a

higher degree offense. In contrast to Gregory, this was an

appropriate exercise of prosecutorial discretion. And, this is

not a case in which the second prosecution would merely serve to

give the prosecution a second bite at proving the same

underlying offense. See Tropea, supra, 78 N.J. at 316;

.

18 A-5953-13T3 Like Tsoi, the defendant here was engaged in continuing and

separate criminal acts. Although the prosecutor was aware of

the two undercover sales, defendant must also be charged with an

awareness of his own criminal involvement. Under these

circumstances, it was not reasonable for him to expect that his

guilty plea to a third-degree marijuana charge would shield him

from all other drug charges during a similar period of time.

See

.

In sum, this is not one of those "rare cases" in which the

doctrine of fundamental fairness must be applied to protect a

defendant from "oppression, harassment or egregious

deprivation."

(Garibaldi, J.,

concurring and dissenting).

Reversed.

19 A-5953-13T3