NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2692-12T1

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, December 15, 2015 v. APPELLATE DIVISION RODNEY J. MILES, a/k/a JAMAL D. ALLEN,

Defendant-Appellant. _______________________________________________________

Submitted September 9, 2014 – Remanded October 14, 2014 Resubmitted December 8, 2015 – Decided December 15, 2015

Before Judges Fisher, Accurso and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-04-00786.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (James C. Jones, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

MANAHAN, J.A.D.

This matter returns to us after a remand to the Law

Division for a determination of the circumstances under which

the initial municipal court charge of simple possession was amended to loitering, whether the prosecutor was involved in the

downgrade, and whether controlling decisions of law barred the

second prosecution. State v. Miles, No. A-2692-12 (App. Div.

October 14, 2014) (slip op. at 8-10). As we conclude, after

application of the "same evidence" test, that defendant's second

prosecution was barred on grounds of double jeopardy, we

reverse.

We briefly set forth the facts and background from our

prior opinion:

On October 15, 2010, defendant was arrested in the City of Camden during an undercover drug operation. Defendant was charged in a warrant complaint with possession of a CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35- 5(b)(12). Defendant was also charged in a summons complaint with the disorderly persons offense of possession of fifty grams or less of marijuana, N.J.S.A. 2C:35-10(a). It is undisputed that these charges arose from the same course of conduct.

On April 4, 2011, the grand jury returned an indictment charging defendant with fourth-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35- 5(b)(12), and third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7. On September 14, 2011, defendant appeared pro se in municipal court via video conference from the county jail.1 Prior to that proceeding, the disorderly persons offense of possession of a CDS was amended to the offense of loitering to possess marijuana, N.J.S.A. 2C:33-2(b)(1). The

2 A-2692-12T1 following colloquy took place between the judge and defendant:

Q. All right. You're charged on October 15, 2010, with loitering to possess marijuana at 27th and Washington Street in Camden.

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?

Q. Yes.

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 child support, sir.

A. No, no, no, they had me - -

Q. Sir.

A. Okay.

Q. Trust me. I am not going to argue with you.

A. No, I'm not arguing.

Q. I'm not going to argue with you.

A. Oh, okay.

3 A-2692-12T1 Q. You're charged with loitering to possess marijuana in Camden, October 15, 2010. It'll be a $500 fine plus mandatory costs. Do you understand the penalties?

A. Yes, sir.

Q. Do you wish to have an attorney in this matter?

A. No, sir.

Q. Do you wish to have a trial?

A. No, sir.

Q. Do you want to plead guilty today?

A. Yes, sir.

Q. Are you pleading guilty because you are guilty?

A. Yes, sir.

Q. Are you doing it voluntarily?

A. Yes, sir.

Q. What's your plea to the charge, sir, guilty or not guilty? A. I plead guilty, sir.

Q. Did you loiter to possess marijuana at 27th and Washington Street in Camden on October 15, 2010?

A. Yes, I did, Your Honor.

4 A-2692-12T1 Q. Factual basis, plea, finding of guilty will be entered. $500 fine, $30 costs, $50 Violent Crime penalty, $75 [S]afe [N]eighborhood and [S]treet. Camden on or before December 6, 9:30 a.m., $25 a month. Okay?

A. Yes, Your Honor.

Q. Thank you.

Defendant moved to dismiss the indictment on double jeopardy grounds. Defendant argued in support of the motion that double jeopardy existed because he pled guilty to an offense that was related to the same conduct. The judge denied the motion finding the second prosecution was not barred because it required additional proofs.

________ 1During the course of the video conference, defendant admitted that he uses Rodney Miles as an alias but that David Allen is "his real name." Defendant was incarceratedon an unrelated charge related to nonpayment of child support.

[Miles, supra, slip op. at 1-4.]

Defendant also entered a conditional plea to count two of

the indictment. Pursuant to the plea bargain, he was sentenced

to probation. Defendant appealed the judge's denial of the

5 A-2692-12T1 motion to dismiss the indictment,1 and we remanded for further

proceedings. Miles, supra, slip op. at 10.

During the remand hearing, the prosecutor informed the Law

Division judge that when municipal charges are pending that

arise out of the same event as did these criminal charges, "we

ask the municipal court not to go forward, we pull those

complaints up to our office." Despite this procedure, there was

no information provided by the State at the remand hearing

whether in this case the disorderly persons charge was "pulled"

or, if it had been, why it remained in the municipal court

system. The prosecutor represented that in this case, his

office did not appear in municipal court nor was his office

notified of the proceeding. At the conclusion of the hearing,

the judge determined that the prosecutor played no role in the

downgrade of the municipal court charge.

The judge further held there was no basis to find that

defendant "did not understand that the serious offense" of

violating the school-zone statute "would continue to be

prosecuted, notwithstanding the efforts of the municipal court

judge, who was attempting to expedite [defendant's] release from

incarceration." He determined that the second prosecution was

1 The conditional plea preserved defendant's right to appeal from the adverse determination of the pretrial motion pursuant to Rule 3:9-3(f).

6 A-2692-12T1 not precluded by notions of fundamental fairness, because

defendant "was fully cognizant" of the pending Superior Court

proceedings "in light of his several appearances" in Superior

Court on those charges.

Defendant argues that the State either implicitly or

explicitly consented to the amendment of the municipal charge

and, because of its involvement, there is no basis to preclude a

finding that double jeopardy barred further prosecution based on

the "same conduct." Defendant further argues the doctrine of

fundamental fairness should bar further prosecution, since the

transcripts demonstrate he "in fact believe[d]" that his

municipal plea resolved the matter, and that his belief was

reasonable because he was "firmly told" by the court "that the

matter was in fact before the municipal court for adjudication."

The State argues that double jeopardy did not attach

because the municipal court's unilateral amendment of the charge

"amounts to a legal nullity." The State further argues that the

municipal court no longer had jurisdiction to process the

municipal complaint upon defendant's indictment.2

2 During the remand hearing, it was noted that it is a regular practice for the municipal court judge conducting the "video" hearing to sua sponte downgrade charges in an effort to resolve the open charges and effectuate the release of a defendant.

7 A-2692-12T1 The State also argues that the record supports the Law

Division judge's decision that the second prosecution was not

precluded by principles of fundamental fairness, as there was no

evidence of harassment or oppression by the State. Further, the

State contends that defendant could not have reasonably expected

that the original plea offer of five years' imprisonment with a

fifteen-month parole disqualifier could be resolved by a $500

fine, and points out that defendant appeared in Superior Court

on the indictable charges five times, including the day before

the municipal court date.

I.

Actions taken by a municipal court on matters beyond its

jurisdiction are a legal nullity that cannot form the basis for

a later plea of double jeopardy. State v. Le Jambre,

(1964). Here, defendant was not charged in municipal

court with a crime. Defendant was charged with the possession

of less than fifty grams of marijuana in violation of N.J.S.A.

2C:35-10(a)(4), which specifies that possession of that quantity

of marijuana is a disorderly persons offense. Disorderly

persons offenses, as designated by statute, are not crimes

within the meaning of the New Jersey Constitution. N.J.S.A.

2C:1-4(b). They afford no right to indictment or trial by jury,

and conviction of such an offense may not "give rise to any

8 A-2692-12T1 disability or legal disadvantage based on conviction of a

crime."

The statutory jurisdiction of the municipal

court includes disorderly persons offenses. R. 7:1.

Although the municipal court judge misunderstood the status

of defendant's drug-related charges pending in the Superior

Court, we reject the State's argument that the return of the

indictment deprived the municipal court of jurisdiction over the

disorderly persons offense. See State v. Labato,

(1951) (prosecutor's objection to proceeding on disorderly

persons offense in former city police court did not deprive the

police court of jurisdiction over that offense, even when

indictment on the same facts was returned two weeks after the

conviction).

II.

Rule 3:15-3 states:

(a) Joinder of Criminal Offense and Lesser Related Infraction.

(1) Except as provided in paragraph (b), the court shall join any pending non-indictable complaint for trial with a criminal offense based on the same conduct or arising from the same episode.

. . . .

(c) Consequence of Failure to Join. In no event shall failure to join as required in paragraph (a) be deemed to constitute

9 A-2692-12T1 grounds for barring a subsequent prosecution of the complaint except as required by statute or by the Federal or State Constitutions.

It is without dispute that defendant's municipal court

charge was required to be joined and resolved with his

indictable offenses then pending in Superior Court. This did

not occur for reasons that, even after remand, remain unclear.

However, as the Rule states, defendant's conviction in municipal

court of a disorderly persons offense did not bar subsequent

prosecution on the indictable unless that prosecution was barred

by constitutional protections such as the Double Jeopardy

Clause.

III.

Defendant's principal argument is that his "school-zone"

conviction was barred on double jeopardy grounds. The Double

Jeopardy Clause of the Fifth Amendment provides that no person

shall "be subject for the same offense to be twice put in

jeopardy of life or limb[.]" U.S. Const. amend. V. "The

parallel provision in the State Constitution is Article I,

paragraph 11, which provides: '[n]o person shall, after

acquittal, be tried for the same offense.'" State v. DeLuca,

, cert. denied,

,

,

(1987).

10 A-2692-12T1 When reviewing double jeopardy claims, the issue is

"'whether the second prosecution is for the same offense

involved in the first.'" State v. Yoskowitz,

(quoting

). In State v. Salter,

(App. Div. 2012), we explained:

The longstanding rule for determining whether a second prosecution is for the "same offense" was expressed in Blockburger v. United States,

,

,

(1932). In that case, "[t]he Court stated that 'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.'"

. . . [O]ur Supreme Court slightly expanded the analysis, noting that the question is "whether the evidence actually used to establish guilt in the first prosecution is identical to that that will be used in the second prosecution." . . . "[I]n DeLuca, the Court 'established that a second prosecution will be barred if either the "elements" test or the "evidence" test is satisfied.'" "If the same evidence used in the first prosecution is the sole evidence in the second, the prosecution of the second offense is barred."

[(internal citations omitted).]

The protections against double jeopardy afforded by the New

Jersey Constitution are co-extensive with those guaranteed by

the Federal Constitution. State v. Schubert,

(2012). Three separate constitutional safeguards are

11 A-2692-12T1 incorporated within its protections: "It protects against a

second prosecution for the same offense after acquittal. It

protects against a second prosecution for the same offense after

conviction. And it protects against multiple punishments for

the same offense." State v. Dively,

(1983)

(quoting North Carolina v. Pearce,

,

,

(1969)).

Here, the factual scenario presented and the applicable

statute implicates the protection against a second prosecution

after conviction as well as whether multiple punishments may be

imposed for the same offense.

We commence our discussion by addressing the school-zone

statute. N.J.S.A. 2C:35-7(a) and (c) state in relevant part:

a. Any person who violates subsection a. of [N.J.S.A.] 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or a school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in [N.J.S.A.] 2C:35-12, be sentenced by the court to a term of imprisonment. Where the violation involves less than one ounce of marijuana, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one- third and one-half of the sentence imposed, or one year, whichever is greater, during

12 A-2692-12T1 which the defendant shall be ineligible for parole. . . .

. . . .

c. Notwithstanding the provisions of [N.J.S.A.] 2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for a violation of subsection a. of [N.J.S.A.] 2C:35-5 (manufacturing, distributing or dispensing) or [N.J.S.A.] 2C:35-6 (employing a juvenile in a drug distribution scheme).

New Jersey applies a two-part test for determining whether

multiple punishments constitute double jeopardy. State v.

Maldonado,

(1994). First, the court should

determine whether the Legislature intended that a defendant

incur multiple punishments for the conduct.

Next, if the

legislative intent is unclear, the court will proceed to apply

the test set forth in

,

,

.

In State v. Dillihay,

(1992), the Court

held that double jeopardy principles preclude multiple

punishments for a defendant convicted of both N.J.S.A. 2C:35-5

(Section 5 offenses) and, also, for the crime of violating

N.J.S.A. 2C:35-7 (Section 7 offenses) based on the fact that the

Section 5 offense occurred in a school zone. The anti-merger

provision of N.J.S.A. 2C:35-7(c) allowed for multiple

convictions on both statutes.

-

13 A-2692-12T1 52. However, it was held that the two offenses were "the same"

under the Blockburger test "because the State must prove all

elements of Section 5 offense in order to establish a violation

of Section 7," and the Section 5 offense does not require proof

of any additional facts required to establish the school-zone

offense.

.

The Court determined that, although convictions for first

and second-degree crimes based on violations of N.J.S.A. 2C:35-5

must merge into a third-degree crime for violating the school-

zone statute, a defendant convicted of a drug offense in a

school zone must be "sentenced to no less than the mandatory

minimum sentence provided in the school-zone statute."

. That result would reflect the Legislature's clear intent to

impose an enhanced punishment upon defendants whose violations

of Section 5 occur in a school zone.

A.

In pleading to the amended disorderly persons offense,

defendant admitted that he "loiter[ed] to possess marijuana."

In his Superior Court plea to violation of N.J.S.A. 2C:35-7, he

admitted he possessed the drug with the intent to distribute it,

in violation of N.J.S.A. 2C:35-5(b)(12).

Pursuant to Dillihay, the original fourth-degree predicate

charge of violating N.J.S.A. 2C:35-5(b)(12) would have merged

14 A-2692-12T1 with his conviction for the Section 7 offense. Therefore, had

he been convicted of both indictable offenses, he could have

been subjected only to a single punishment. Moreover, had he

been convicted in municipal court of the original disorderly

offense with which he was charged, his conviction for N.J.S.A.

2C:35-7 would have been barred by the same double jeopardy

principles that require merger of Section 5 offenses with the

Section 7 school-zone crimes.

In application of the Blockburger "elements" test, we

conclude the school-zone crime and the loitering offense to

which defendant pled guilty are not the same offense for purpose

of double jeopardy because they each contain different elements

from the other. The loitering statute penalizes persons who

loiter in a public place for the purpose of obtaining or

distributing drugs and who exhibit conduct manifesting that

purpose. N.J.S.A. 2C:33-2.1(b). Section (c) of the statute

emphasizes that an essential element of the offense is that the

conduct occur in a public place. N.J.S.A. 2C:33-2.1(c). The

statute describes conduct that "may" be deemed adequate to

establish the defendant's purpose in loitering, including

repeated: (1) beckoning or stopping motorists or pedestrians "in

a public place"; (2) passing or receiving objects from motorists

or pedestrians "in a public place"; or (3) circling in a motor

15 A-2692-12T1 vehicle and passing or receiving an object from a person "in a

public place."

A conviction under N.J.S.A. 2C:35-7 requires proof that the

violation occurred in a school zone as an element of the

offense. State v. Baynes,

(1997). The

elements of the crime are: "(1) possession of a controlled

dangerous substance, (2) with the purposeful or knowing intent

to distribute the substance, and (3) within 1000 feet of any

school property." State v. Gregory,

(2015).

In contrast, the loitering statute does not require as an

element of the offense that the possession or distribution of

drugs occurred in a public place within a school zone. Although

it is an affirmative defense to prosecution under the school-

zone statute if the prohibited conduct took place entirely in a

private residence, that defense applies only when, at the time

it occurred, no one younger than seventeen years old was present

and the offense did not involve distribution or possession with

intent to distribute or dispense a drug for profit. N.J.S.A.

2C:35-7(e). The distribution or sale for profit of drugs in a

private residence located within a school zone is generally

prohibited under the statute. N.J.S.A. 2C:35-7.

Defendant's conviction under N.J.S.A. 2C:35-7 also required

as an element of the crime that he possessed the drugs with the

16 A-2692-12T1 intent to distribute them. N.J.S.A. 2C:35-7(a). This element is

not required for conviction of the disorderly persons offense of

loitering in a public place. N.J.S.A. 2C:33-2.1.

Accordingly, we conclude the "elements" test does not bar

defendant's second prosecution.

B.

In determining whether a successive prosecution would be

barred, New Jersey courts have also applied the "same evidence"

test.

;

.3 Under the "same evidence" test, as expressed by

the United States Supreme Court in Illinois v. Vitale,

,

,

(1980), the Double

Jeopardy clause will preclude a later prosecution of a greater

offense where a defendant already has been convicted of a lesser

offense: (1) when "the lesser-included offense require[d] no

proof beyond that required in the greater offense," and (2)

"also the proof of the greater offense must establish the lesser

offense."

. The "same evidence"

test may be applied to determine if a defendant's guilty plea

3 The motion judge mistakenly referred to the Blockburger "same elements" test as the "same conduct" test. The term "same conduct" test is generally used to mean the alternative to Blockburger, also called the "same evidence" test. See, e.g., United States v. Dixon,

,

,

(1993); State v. Colon,

(App. Div. 2005).

17 A-2692-12T1 precludes a second prosecution based on the same evidence that

supported the plea to the first offense. State v. Hand,

(App. Div. 2010).

Here, the "evidence" that defendant violated the school-

zone statute was based on the allegation that he was located at

27th and Washington Streets when he possessed the marijuana with

the intent to distribute it and that location was within 1000

feet of a school. Although defendant did not admit to his

location in his plea to the indictable offense, proof of his

location was evidence required to prove the crime.

The defendant's location in a public place was the same

evidence required to find him guilty of the disorderly persons

offense of loitering. Since proof of defendant's location was

critical to a conviction for both charges, the proof relied on

by the State to establish defendant's conviction for possession

within a school zone would also establish his violation of the

loitering statute. Defendant's conviction on the loitering

statute required no proof beyond that. Therefore, applying the

same evidence test would preclude defendant's subsequent

prosecution under N.J.S.A. 2C:35-7.

We note that in 1993 the United States Supreme Court

rejected the "same evidence" test as an alternate to the

Blockburger test.

,

A-2692-12T1 2859-64,

(overruling Grady v. Corbin,

,

,

(1990), and its

antecedents, which included

,

,

).

In Colon, supra,

, we recognized that

the test had been "repudiated by Dixon." However, we "declined

to find, in the absence of dispositive precedent to the

contrary, that the 'same [evidence]' test was no longer

applicable to a determination of double jeopardy under the New

Jersey Constitution."

Similarly, in State v. Capak,

(App. Div.), certif. denied,

(1994), we recognized

Dixon's holding, and noted that New Jersey constitutional

protections are co-extensive with federal protections. Despite

that recognition, we stated, "to the extent DeLuca and Yoskowitz

may be understood to embody state constitutional principles,

until our Supreme Court holds otherwise," we would continue to

apply the "same [evidence]" test. Id. at 403. Further, this

court hewed to that position when we applied the "same evidence"

test in

-31.

This court, however, has also declined to apply the "same

evidence" test in light of Dixon. See State v. Kelly,

(App. Div. 2009) (rejecting defendant's double

19 A-2692-12T1 jeopardy arguments, in part, because they were based on Grady v.

Corbin, which was overruled by the United States Supreme Court

in Dixon), aff'd on other grounds, State v. Kelly,

(2010); State v. Ellis,

(App. Div.

1995) (declining to apply "same evidence" test from Grady v.

Corbin because it had been overruled).

In reaching our determination, we adopt the rationale

utilized in

, where we

rejected the "more restrictive approach" of Dixon:

As an intermediate appellate court, we are therefore confronted with the difficult determination of whether to adhere to the Court's existing interpretation of federal and state double jeopardy protections, set forth in [Yoskowitz, supra,

,] DeLuca and Dively, or without significant precedent to suggest that the Court would narrow or restrict the flexibility of its view of double jeopardy to accord with newly-established federal constitutional law, to forecast that it would do so in a state constitutional context. We find the latter course to be presumptuous, and, accordingly, follow Capak in holding that such a determination must be made by the Supreme Court, not by us. We accordingly view defendant's proofs in light of the "same [evidence]" test in determining whether state constitutional proscriptions against double jeopardy have been violated.

[(quoting

).]

20 A-2692-12T1 C.

The State argues that its lack of involvement in the

municipal court proceedings militates against a finding of

double jeopardy on fundamental fairness grounds.4 First, we

disagree that prosecutorial involvement in the proceedings is

requisite to such a finding. Second, while it may be that the

State had no knowledge of the proceedings that resulted in

defendant's municipal court plea, the State should have been

aware that a disorderly persons offense based upon the same

conduct had been lodged against the defendant. Yet, even on

remand, the State could offer no explanation why the offense was

not joined with the indictable charges. The failure to join the

offense resulted in the offense's amendment and disposition

through a municipal court process of which the State was aware,

even if the prosecutor was not noticed for the proceeding in

question.

The procedure that allowed the municipal court to amend the

charges produced an unfair outcome for defendant. As we noted,

4 In regard to its applicability to either party, fundamental fairness has been held to be a "settled repository of rights of the accused." State v. Abbati,

(1985). Even if we harbored doubts about whether the doctrine of fundamental fairness may be invoked by other than the accused, we need not decide that question because we conclude that the doctrine — if considered here from the State's point of view — does not warrant the outcome the State has urged.

21 A-2692-12T1 a plea to the original charge of possession as a lesser-included

offense would have resulted in the unequivocal bar of the

indictable charges.

Additionally, we disagree that defendant should have known

his municipal court plea was not intended to resolve the

indictable charges. A fair reading of the transcript evinces

defendant's efforts to inform the municipal court judge of the

Superior Court charges. At worst, the uncounseled defendant was

misled and, at best, defendant was understandably confused.

Through no fault of his own he accepted the plea offered by the

municipal court judge and was sentenced.

Notwithstanding our determination on the issues of

prosecutorial involvement, fairness and notice to defendant, we

conclude that "fundamental fairness" would not bar the second

prosecution.

The fundamental fairness doctrine derives from an implied

judicial authority to create appropriate and just remedies and

to assure the efficient administration of the criminal justice

system.

. It has been

"extrapolated from or implied in other constitutional

guarantees" that nevertheless are insufficient to protect

individual defendants harassed by arbitrary government action.

Doe v. Poritz,

(1995) (quoting

22 A-2692-12T1

(Handler, J., dissenting)). The doctrine has

been applied when "[s]omeone was being subjected to potentially

unfair treatment and there was no explicit statutory or

constitutional protection to be invoked."

Our Supreme Court has cautioned that the doctrine is to be

applied "sparingly" to the most compelling circumstances where,

in the absence of judicial intervention, a defendant will be

subject to oppression, harassment or egregious deprivation.

State v. Saavedra,

(2015); State v. Miller,

(2013), cert. denied, ___ U.S. ___,

,

(2014);

. It has been applied only in the clearest of cases. See

State v. Maisonet,

(2001) (defendant was

forced to appear for a jury trial over several days in a dirty

and disheveled condition having been denied access to soap,

running water, toothpaste or a comb);

(the doctrine of fundamental fairness required the

institution of procedural protections to determine

classification of convicted sex offenders will be subject to

community supervision and notification provisions); State v.

Tropea,

, 311-16 (1978) (fundamental fairness

precluded remand for retrial when State has failed to introduce

evidence of essential element of proof); State v. Baker, 310

23 A-2692-12T1 N.J. Super. 128, 138 (App. Div. 1998) (fundamental fairness

precluded State from seeking death penalty based on deliberate

prosecutorial misconduct in seizing juror notes and releasing

them to the press after conviction but before penalty phase had

commenced), certif. denied,

(2002).

Had we been required to decide the applicability of the

fundamental fairness doctrine as essential to the resolution of

this appeal, we would conclude that the facts presented do not

qualify as the type of indisputably unfair circumstances that

have garnered judicial support for application of the doctrine.

Reversed.

24 A-2692-12T1