Opinion
A-2350-20
06-12-2023
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRYANT T. GEDDES, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel S. Rockoff, Assistant Deputy Public Defender, of counsel and on the brief). Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Submitted May 15, 2023
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 19-09-2202.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel S. Rockoff, Assistant Deputy Public Defender, of counsel and on the brief).
Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
Before Judges Whipple, Mawla, and Walcott-Henderson.
PER CURIAM
Defendant Bryant T. Geddes, Jr., appeals from a January 10, 2020 denial of his motion to dismiss a Camden County indictment following a guilty plea to theft, N.J.S.A. 2C:20-3, in a Gloucester County municipal court arising from the same forgery and check cashing scheme. We reverse for the reasons set forth below.
The facts are not in dispute. Defendant and two former co-workers were charged with stealing and depositing a forged check from Cole Construction Company. Specifically, on October 2, 2018, co-defendants used a mobile banking application to remotely deposit a check in the amount of $7,112.36 into a TD Bank (TD) account. Co-defendants, including Geddes, then withdrew funds from that account at TD locations in Gloucester and Camden counties.
On November 5, 2018, defendant was charged in Camden County with third-degree conspiracy to commit theft by deception via a forged check, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:21-5. On November 6, 2018, defendant was also charged in Gloucester County with third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:20-3(a). On January 28, 2019, a Camden County grand jury returned an indictment charging defendant with: third-degree conspiracy to commit theft by deception, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4(a) (count one); third-degree theft by deception, N.J.S.A. 2C:20-4 (count two); and third-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3) (count three). Approximately one month later, defendant, appearing pro se, pled guilty to theft by unlawful taking, N.J.S.A. 2C:20-3(a)- a disorderly persons offense-in a Gloucester County municipal court. He received a sentence of "minimum fines."
Defendant then filed a motion to dismiss the Camden County indictment. On January 10, 2020, the court held oral arguments. Now represented by counsel, defendant argued:
[M]y [m]otion [f]or [d]ismissal is based on the mandatory joinder rule which stems forth initially from State v. Gregory, [66 N.J. 510 (1975),] but has later been codified both by court rule and by statute which stands for the proposition basically that multiple offenses that are based on a single course of conduct, single criminal episode must be joined in a single prosecution. Any omitted offenses will later be barred.
. . . [T]he seminal case on that rule is [State v. Yoskowitz, 116 N.J. 679, 701 (1989),] which . . . laid out a four[-]part test to see whether or not this joinder rule is complied with. And it requires that, number one, the multiple offenses are criminal; number two, the offenses are based on the same conduct or arise from the same episode; number three, that the appropriate prosecuting officer knew of the offenses at the time the first case commences; and number four, that the offenses were within the jurisdiction and venue of a single court.
In denying defendant's motion, the trial court reasoned he failed to prove the fourth prong because the offenses were not within the jurisdiction and venue of a single court. Following the trial court's decision, defendant pled guilty to count one of the Camden County indictment-third-degree conspiracy to commit theft by deception, contrary to N.J.S.A. 2C:5-2(a)(1) and 2C:20-4. The court sentenced defendant to a one-year probationary term, and he was subject to various fines and penalties. This appeal ensued.
Defendant mainly argues he was prosecuted twice for the same crime and the court erred by denying his motion to dismiss the Camden County indictment following the guilty plea in a Gloucester County municipal court. Although he previously argued mandatory joinder prohibited the second prosecution in Camden County, defendant now asserts for the first time that the trial court's holding is contrary to constitutional and statutory law, citing double jeopardy and fundamental fairness.
Defendant, citing Yoskowitz, acknowledges mandatory joinder is not "activate[d]" by a disorderly persons offense, but instead argues we should consider his newly raised arguments and reverse because "it is well-settled that appeals are taken from orders and judgments and not from . . . reasons given for the ultimate conclusion." Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001).
"Generally, issues not raised below, even constitutional issues, will not ordinarily be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest." State v. Walker, 385 N.J.Super. 388, 410 (App. Div. 2006); see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). "An issue not raised below may be considered by the court if it meets the plain error standard or is otherwise of special significance to the litigant, to the public, or to achieving substantial justice, and the record is sufficiently complete to permit its adjudication." Walker, 385 N.J.Super. at 410; see also Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 230 (1998).
Furthermore, Rule 3:10-2(c) states the defense of double jeopardy must be raised before trial. See State v. Allah, 170 N.J. 269, 282 (2002) (explaining the "plain language of the [r]ule provides that the defense of double jeopardy must be raised by motion before trial and that the failure to present the defense constitutes a waiver"). Rule 3:10-2(c) allows for relief from the waiver provision if defendant can demonstrate good cause. See, e.g., State v. Del Fino, 100 N.J. 154, 161 (1985) (explaining a successful showing of good cause depends on the circumstances surrounding the delay and the merits of the underlying assertion).
Although there is no disagreement defendant asserts the defense of double jeopardy for the first time in this appeal, we find sufficient good cause to consider his arguments. We do so recognizing mandatory joinder, which was argued at the trial level, is "a concept that is more stringent than double jeopardy principles in disallowing certain successive prosecutions." State v. Reid, 456 N.J.Super. 44, 57 (App. Div. 2018). And, double jeopardy issues are governed by less stringent standards. Id. at 69. Nevertheless, both concepts are derived from the constitutional protections afforded criminal defendants and share a similar purpose: to disallow certain successive prosecutions. Additionally, there is no dispute that defendant's February 2019 plea in a Gloucester County municipal court, followed by his Camden County guilty plea, constitute eligible "convictions" for the purposes of double jeopardy.
There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two cases failure to enter judgment must be for a reason other than a motion of the defendant. [N.J.S.A. 2C:1-9(c).]
The double-jeopardy clauses of the federal and New Jersey Constitutions provide that no person shall be tried twice for the same criminal offense. U.S. Const. amend. V; N.J. Const. art. I, ¶ 11. The Supreme Court of New Jersey "has consistently interpreted the State Constitution's double-jeopardy protection as coextensive with the guarantee of the federal Constitution." State v. Miles, 229 N.J. 83, 92 (2017). "The Double Jeopardy Clause contains three protections for defendants. It protects against (1) 'a second prosecution for the same offense after acquittal,' (2) 'a second prosecution for the same offense after conviction,' and (3) 'multiple punishments for the same offense.'" Ibid. (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). In examining the first two protections, we review "whether the second prosecution is for the same offense involved in the first." Id. at 93 (quoting Yoskowitz, 116 N.J. at 689).
In 2017, our Supreme Court adopted the same-elements test as "the sole double-jeopardy analysis . . . ." Id. at 96. The same-elements test involves a review of whether the statutes at issue require proof of identical elements. Id. at 93 (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).
Here, defendant was charged in both counties with conspiracy to commit theft by deception, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4. While he was indicted in Camden County for conspiracy to commit theft by deception, he pled guilty to a downgraded theft by unlawful taking or disposition in a Gloucester County municipal court. Theft by deception, under N.J.S.A. 2C:20-4, provides "[a] person is guilty of theft if he [1] purposely obtains [2] property of another [3] by deception." On the other hand, theft by unlawful taking or disposition, under N.J.S.A. 2C:20-3(a), provides "[a] person is guilty of theft if he [1] unlawfully takes, or exercises unlawful control over, [2] movable property of another [3] with purpose to deprive him thereof."
A side-by-side comparison of the two statutes shows some overlap in the elements in that both statutes require intent-implied by the word "purpose"- to convict one of theft. However, the two statutes do not necessarily have the same elements. First, under N.J.S.A. 2C:20-4, the State is required to prove a defendant was deceitful in obtaining the property of another, whereas N.J.S.A. 2C:20-3(a) requires the State to prove a defendant took the property by unlawful means. Second, under N.J.S.A. 2C:20-3(a), the State is required to prove a defendant's purpose was to deprive the victim of their property, while N.J.S.A. 2C:20-4 requires the State to prove the purpose was simply to obtain the property. Since each statute requires proof of elements the other does not, double jeopardy does not apply based on the same-elements test.
However, defendant also argues N.J.S.A. 2C:1-10(a)(3) offers statutory double jeopardy protection that exceeds constitutional protections. The relevant statute provides:
A prosecution of a defendant for a violation of a different provision of the statutes . . . is barred by such former prosecution under the following circumstances:
a. The former prosecution resulted in an acquittal or in a conviction as defined in [N.J.S.A.] 2C:1-9 and the subsequent prosecution is for:
....
(3) The same conduct, unless (a) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil, or (b) the second offense was not consummated when the former trial began.
[N.J.S.A. 2C:1-10 (emphasis added).]
While N.J.S.A. 2C:1-10(a)(3) reiterates the same-elements test, it also adds a subsequent prosecution for the same conduct is barred if the statutes defining the offenses are intended to prevent substantially similar harms. In other words, if N.J.S.A. 2C:20-4 and N.J.S.A. 2C:20-3(a) are meant to prevent substantially similar harms, then the Camden County prosecution of defendant is barred.
"On a motion to dismiss a criminal indictment, a court 'view[s] the evidence and the rational inferences drawn from that evidence in the light most favorable to the State.'" State v. Twiggs, 233 N.J. 513, 544 (2018) (alterations in original) (quoting State v. Saavedra, 222 N.J. 39, 56-57 (2015)). "A criminal indictment is proper if the State presented the grand jury with 'at least some evidence as to each element of a prima facie case.'" Ibid. (quoting State v. Bennett, 194 N.J.Super. 231, 234 (App. Div. 1984)) (internal quotation marks omitted). We review a trial court's denial of a motion to dismiss an indictment for abuse of discretion. Ibid. (citing Saavedra, 222 N.J. at 55).
Where, the trial court's decision does not simply involve the exercise of discretion, but instead concerns an alleged misapplication of law, we must examine those legal contentions de novo without affording the court special deference. Miles, 229 N.J. at 90 (applying de novo review to legal issues of double jeopardy and joinder, arising in the context of reviewing a trial court's ruling on a motion to dismiss an indictment). "When an appellate court reviews a trial court's analysis of a legal issue, it does not owe any special deference to the trial court's legal interpretation." Ibid. (citing Manalapan Realty, LP v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)). Indeed, as the Court reaffirmed in Miles, "[w]hen a question of law is at stake, the appellate court must apply the law as it understands it." Ibid. (quoting State v. Mann, 203 N.J. 328, 337 (2010)).
Defendant contends "[a]ll three counts of the indictment . . . are also barred by statutory double jeopardy" because both theft statutes operate to prevent offenders from purposely depriving others of their property. And,
. . . even if this [c]ourt finds that counts one and two were not barred by the "same[]elements" test for constitutional double jeopardy, counts one and two likewise should have been barred by the more protective statutory double jeopardy in the Criminal Code. ... [E]ven if N.J.S.A. 2C:20-3[(a)] theft and N.J.S.A. 2C:20-4 theft are not the "same offense[s]" under Blockburger, these offenses are certainly not "intended to prevent substantially different harm[s] or evil[s]."
[(Seventh and eighth alterations in original).]
In Gregory, the defendant sold one glassine envelope of heroin to an undercover police officer in an apartment. 66 N.J. at 511. The defendant retrieved the single envelope of heroin from a stash of similar envelopes in the apartment's bathroom medicine cabinet. Ibid. Initially, the State prosecuted and convicted the defendant of only the drug sale. Id. at 511-12. Later, the State charged, prosecuted, and convicted him of possession and possession with intent to distribute the drugs stored in the medicine cabinet. Id. at 512.
The Court in Gregory vacated the defendant's conviction on the second indictment for possession with intent to distribute, concluding that it was unfair for the State to prosecute him for that offense, having already convicted him of the related drug sale. Id. at 522-23. The Court recognized constitutional principles of double jeopardy might not protect the defendant from the second prosecution, depending upon how broadly one conceives of the criminal "transaction(s)" involved. Id. at 517-18. Nonetheless, the Court disallowed the successive prosecution based on non-constitutional principles of fairness and the defendant's reasonable expectations. Id. at 518.
Applying these principles and based upon our de novo review of the record, and recognizing the trial court did not address these same arguments, we reverse the court's denial of defendant's motion to dismiss the Camden County indictment. We make this holding based upon the inescapable conclusion that defendant's plea to theft, pursuant to N.J.S.A. 2C:20-3(a), and subsequent guilty plea for conspiracy to commit theft by deception, pursuant to N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:20-4, fundamentally turn upon the same illegal activity. Moreover, the statutes are intended to prevent substantially similar harms-the taking of another person's property.
Guided by the Court's reasoning in Gregory, we hold defendant's subsequent conviction in Camden County based on the same criminal act, which he pled guilty to in a Gloucester County municipal court, is contrary to principles of fairness. We therefore reverse the trial court's denial of Defendant's motion to dismiss the Camden indictment and vacate the one-year probationary sentence.
Reversed. We do not retain jurisdiction.