case for determination whether the only proof of
recklessness were intoxication, for if so, then the offenses
would be the same under the same-conduct test.
Resolving practical concerns that can give rise to double
jeopardy issues, the Court also ruled that the judge who
presides as a Superior Court judge over the trial of a
defendant’s indictment for death by auto should
simultaneously preside as a municipal court judge to
adjudicate defendant’s guilt for driving while
intoxicated. See also State v. Sloane, 111 N.J. 293 (1988).
In State v. Yoskowitz, 116 N.J. 679 (1989), defendant
pled guilty in municipal court to filing a false police
report about the staged “theft” of his car. Later, the state
prosecuted defendant for arson and attempted theft by
deception, alleging that defendant attempted to defraud
his insurance carrier and conspired in burning the car.
The Supreme Court reaffirmed its DeLuca ruling and
held that since defendant had not shown that the offenses
met either the same-elements test or the same-evidence
test, the arson and attempted theft prosecution did not
violate defendant’s double jeopardy rights.
In State v. Capak, 272 N.J. Super. 397, 403 (App.
Div. 1994), certif. denied, 137 N.J. 164 (1994),
defendant pled guilty in municipal court to theft of
prescription forms by failure to turn them over to a
doctor. When the state later prosecuted defendant for
attempting to obtain prescription drugs, she claimed
that the prosecution violated her double jeopardy rights.
Using a DeLuca analysis, the Appellate Division ruled
defendant had not shown that the offenses were the same
under either the same-elements test or the same-evidence
test.
State v. Catanoso, 269 N.J. Super. 246 (App. Div.
1993), certif. denied, 134 N.J. 563 (1993), upheld
defendant’s convictions for conspiracy and official
misconduct, but ruled that his conviction for bribery
should merge into the conviction for official misconduct.
The Court rejected defendant’s claims that his
convictions violated constitutional and statutory
prohibitions against double jeopardy because he had
previously been acquitted of another conspiracy which
overlapped the current offense. The Court found that
under the “totality of the circumstances” test, the crimes
were not the same, even though defendant’s role was the
same in each conspiracy, because the two conspiracies
took place at different locations, the time periods for the
two offenses overlapped only slightly, the co-conspirators
were not identical in each conspiracy, and the overt acts
were entirely different. The Court concluded that
neither the Federal or State Constitutions nor N.J.S.A.
2C:1-9 or 10, required the dismissal of the indictment.
The Court also rejected defendant’s claim that the two
cases should have been mandatorily joined, noting that
defendant had never requested joinder, the objects of the
two conspiracies were different, different evidence was
necessary to convict the defendant on the two
indictments, the conspiracies alleged in the two
indictments were not integral parts of a larger scheme but
constituted separate acts, and the consequences of the
two conspiracies were different.V. MULTIPLE PUNISHMENT
Another form of double jeopardy protection protects
against multiple punishment for the same offense. In the
final years of the 20th century, the United States
Supreme Court took up the question of what is
punishment for purposes of double jeopardy protection.
Generally, a series of cases asked whether some non-
criminal sanction, for example, a civil in rem forfeiture or
a civil penalty, was punishment such that when imposed
along with a criminal sanction for a parallel criminal
offense, double jeopardy protections were violated.In United States v. Halper, 490 U.S. 435, 109 S.Ct.
1892, 104 L.Ed.2d 487 (1989), defendant was a health
services manager and a “prolific but small-gauge
offender.” Initially, the federal government prosecuted
and convicted defendant for a $585 Medicare fraud
comprising 65 separate counts of fraud at $9 each.
Defendant was sentenced to two years imprisonment and
a $5,000 fine. The government then obtained a
$130,000 civil penalty under the federal False Claims
Act. The United States Supreme Court, breaking with
precedent, held that the civil penalty, despite its civil
label and despite Congressional intent to create a non-
criminal sanction, might provide more than a measure of
rough remedial justice and could constitute punishment
for double jeopardy purposes. The Supreme Court
remanded the case to the district court to allow the
government to prove its “injuries;” and to show that the
$130,000 civil sanction was proportionate to
government costs.In State v. Williams, 286 N.J. Super. 507 (Law Div.
1995), the court denied defendant’s motion to dismiss
the indictment, holding that civil forfeiture did not
constitute punishment for double jeopardy purposes;
and that the in rem forfeiture of funds found in close
proximity to illegal drugs did not violate the excessive
fines clause of the Eighth Amendment.