her with third-degree theft. She was subsequently
indicted in Superior Court. Nevertheless, defendant
successfully moved for dismissal of the indictment,
asserting that double jeopardy barred prosecution on the
indictment, since the municipal court offense was
identical to the indictment and part of a single episode for
which she had already been convicted. The State
appealed, and the Court reversed. The Appellate
Division found that knowledge of all of defendant’s thefts
was not imputable to the county prosecutor since the first
plea was handled by another prosecuting attorney in
another jurisdiction. Furthermore, defendant’s guilty
plea to a single theft charge in municipal court did not bar
a subsequent prosecution by county prosecutor of 67
other instances of embezzlement. The initial theft charge
was not prosecuted by county prosecutor and
investigation of the other offenses was not complete or
known to county at the time the plea was entered.
Therefore, neither double jeopardy nor compulsory
joinder requirements barred prosecution of the later
indictment.
In State v. Alevras, 213 N.J. Super. 331 (App. Div.
1986), defendant pled guilty, pursuant to a negotiated
plea agreement, to numerous counts of four different
indictments. Defendant claimed, however, that the
indictments should have been joined for purposes of trial
with an earlier conspiracy indictment, before he entered
into the plea agreement. The Court disagreed and held
that the indictments associated with the plea agreement
were not required to be joined, pursuant to Gregory and
N.J.S.A. 2C:1-8 and 2C:1-10, with the earlier conspiracy
indictment, since each indictment involved different
victims at different locations and different times. That
both sets of indictments involved the same co-
conspirators, the Court found, was insignificant.
In State v. Yoskowitz, 116 N.J. 679 (1989), the
Supreme Court detailed the criteria a defendant must
meet to invoke the compulsory joinder rule: (1) the
offenses must be criminal; (2) the offenses must arise from
the same episode or conduct; (3) the prosecutor or
prosecuting officer must have known of the offenses when
the first offense was tried; and (4) the offenses must be
within the jurisdiction and venue of the same court. The
Supreme Court also compared compulsory joinder
analysis to double jeopardy analysis, noting that a double
jeopardy analysis includes “a consideration of the
elements of the charged offenses as well as the evidence
supporting them,” irrespective of any classification as a
disorderly persons offense. The Court observed that a
compulsory joinder analysis, by contrast, may depend on
classification of one offense as a disorderly persons offense.VII. MISTRIALS
Retrial after a mistrial is generally permitted if the
mistrial is based on defendant’s consent or motion or if
the mistrial is based on “manifest necessity.” However,
there is an exception if the defendant’s motion is caused
by prosecutorial “bad faith.” See, e.g., United States v.
Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267
(1976). While courts have refused to categorize those
circumstances which would permit or prohibit retrial,
“manifest necessity” may justify granting a mistrial if the
jury is unable to reach a verdict. Logan v. United States,
144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892).A. ConsentUnited States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075,
47 L.Ed.2d 267 (1976). For repeated misconduct by
defense counsel in his opening statement, the trial court
excluded him from the trial and ordered him to leave the
courthouse. The trial court asked defendant’s co-counsel
if he were prepared to proceed with trial. Informed that
co-counsel was not prepared (he said that his role was to
make “legal arguments” only), the trial judge asked
defendant whether he consented to declaration of a
mistrial or desired to go forward. Defendant consented
to a mistrial, but later claimed that he should not have
been tried a second time for the crime. The Supreme
Court noted that ordinarily a defendant, by requesting a
mistrial, chooses to terminate the trial, and the Double
Jeopardy Clause will not bar reprosecution even where
prosecutorial misconduct, for example, is the basis for
defendant’s request. However, the Court continued, if
the judge or the prosecutor acted in bad faith, or engaged
in conduct to provoke defendant’s request for a mistrial,
then double jeopardy protection bars retrial.Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53
L.Ed.2d 80 (1977). Defendant moved to dismiss an
information after the prosecutor and defense counsel had
made opening statements, claiming that the allegations
in the information were incomplete. The trial court
initially reserved decision on defendant’s motion, but
when all the evidence had been admitted, the court
dismissed the information. Thereafter, defendant was
indicted for the same offense. The Supreme Court held
that the Government could retry defendant because the
proceedings against defendant had not ended in his favor
and the dismissal was not based on any judgment that he