reversed the denial of the second defendant’s motion and
held that he should have the benefit of his codefendant’s
earlier ruling. The Court abandoned the traditional
doctrine requiring mutuality as an absolute perquisite for
invoking collateral estoppel and adopted, instead, a more
flexible approach suggested in contemporary case law and
the Restatement, Judgement 2d. (No. 2, 1975). The Court
noted that in some cases the absence of mutuality might
militate against collateral estoppel, and the Court
rejected defendant’s argument that the State’s failure to
have sought interlocutory appeal in the first case should
favor collateral estoppel in the second. Nevertheless, the
Court noted that “the inconsistent adjudications were
based on precisely the same facts” and concluded that
“the facts of this case present such a classic example of
unfairness that we feel constrained to afford the
defendant the benefit of the earlier ruling invalidating the
search.” Id. at 195. The Court took steps to avoid
recurrence of the problem. R. 3:5-7(a) was amended to
require joinder of all such motions by coindictees for
consolidated consideration in a single hearing. Where a
defendant makes a convincing showing that he was
unable to participate at a prior suppression hearing in
which the challenged search was invalidated, and the
evidence adduced at both hearings is substantially the
same, he should be afforded the right to claim the benefits
of such a hearing. However, where a defendant resists
such joinder or fails without adequate justification to
participate in the consolidated suppression proceeding, a
claim of collateral estoppel will be unavailable.
Romano v. Kimmelman, 190 N.J. Super. 554 (App.
Div. 1983), aff’d 96 N.J. 66 (1984). In earlier matters
unrelated to plaintiffs’ indictment for drunk driving, the
municipal court was persuaded that results of the
breathalyzer tests were unreliable because of radio
frequency interference affecting the breathalyzer’s
performance. Plaintiffs, none of whom was a party to the
earlier municipal court proceedings, but all of whom
were charged with drunk driving, brought suit seeking to
collaterally estop the State from using breathalyzer test
results at their trials. The Court noted that in Gonzalez,
the Supreme Court had abandoned mutuality as absolute
prerequisite for invoking the doctrine of collateral
estoppel. Nevertheless, “in criminal proceedings the
identity-of-parties requirement remains paramount,
tempered by considerations of fairness to the defendant.”
190 N.J. Super. at 563. The court concluded that those
considerations did not require collateral estoppel in this
case. Although the Attorney General participated in the
earlier municipal court proceedings, nevertheless, that
court was a court of limited jurisdiction whose ruling had
not been reviewed by an appellate court. Moreover, the
question was one of general public importance and great
concern. The court’s responsibility for the protection of
the public through the fair administration of drunk
driving laws overrode its concern for the time and expense
suffered by plaintiffs and others who must protect their
own rights individually. Collateral estoppel, the Court
stated, although a principle designed to prevent
relitigation of issues, should not to be the device by which
the greater public good is overridden.In State v. Ingenito, 87 N.J. 204 (1981), defendant
was charged with various violations of the weapons laws.
Specifically, defendant was accused of receiving stolen
property, the unlicensed transfer of weapons, and
possession of a firearm by a previously convicted felon.
The last count was severed and defendant was tried on the
receiving stolen property and unlicensed transfer of
weapons counts. He was convicted of the unlicensed
transfer charge but acquitted of the receiving stolen
property allegation. One week later, defendant was tried
before a second jury on the possession of a weapon by a
convicted felon charge. He stipulated that he was a
convicted felon. With regard to the second element of the
crime, possession of the firearm, the State proffered the
testimony of the county clerk about the record of
defendant’s recent conviction for the unlicensed transfer
of weapons. Defendant’s objection to this tactic was
overruled by the trial court and defendant was convicted
of the charge. In reversing the conviction, the Supreme
Court determined that the use of defendant’s prior
conviction of unlicensed transfer of weapons constituted
improper application of collateral estoppel by the State in
a criminal trial, thereby impinging a defendant’s
constitutional right to trial by jury. Stressing the jury’s
function as fact-finder, evaluator of credibility of
witnesses and ultimate resolver of a defendant’s guilt or
innocence, the Court ruled that those considerations
required that ”that same [jury] decide all of the elements
of the charged offense....”In State v. Lane, 279 N.J. Super. 209 (App.
Div.1995), defendant contended for the first time on
appeal that his retrial for second-degree aggravated
assault impinged his rights under both the Double
Jeopardy Clause and the collateral estoppel doctrine.
The Appellate Division noted that a defendant must raise
the double jeopardy offense by pretrial objection.
Likewise, the Court noted, a defendant may not raise an
issue of collateral estoppel for the first time on appeal.