STATE OF NEW JERSEY VS. KONSTADIN BITZAS (14-02-0228, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1653-14T1
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
July 10, 2017
Plaintiff-Respondent,
APPELLATE DIVISION
v.
KONSTADIN BITZAS, a/k/a
CONSTANTINE BITZAS,
CHRISTOS BITZAS, and
DEAN BITZAS,
Defendant-Appellant.
_________________________
Argued September 28, 2016 – Decided July 10, 2017
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County,
Indictment No. 14-02-0228.
Moses V. Rambarran argued the cause for
appellant (Rambarran Law Firm, attorneys; Mr.
Rambarran, of counsel and on the brief).
Anthony C. Talarico, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Gurbir S. Grewal,
Acting Bergen County Prosecutor, attorney; Mr.
Talarico, of counsel and on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
A Bergen County grand jury returned an indictment against
defendant Konstadin Bitzas, a/k/a Dean Bitzas, charging him with
second degree possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4a (count one); third degree terroristic threats,
N.J.S.A. 2C:12-3b (count two); fourth degree aggravated assault
by pointing a firearm at or in the direction of another, N.J.S.A.
2C:12-1b(4) (count three); fourth degree possession of a handgun
following a conviction for possessing a controlled dangerous
substance, N.J.S.A. 2C:39-7a (counts four through eight); second
degree possession of an assault firearm, N.J.S.A. 2C:39-5f (count
nine); and fourth degree possession of a large capacity magazine,
N.J.S.A. 2C:39-3j (counts ten and eleven).
Before the trial began, the judge severed counts four through
eight to allow the jury to decide the remaining counts without
being influenced by defendant's prior drug-related convictions.1
The State's first witness, P.K,2 was a woman who previously had a
dating relationship with defendant. She testified about the
incident that gave rise to the first three counts of the
indictment. P.K. continuously responded to defense counsel's
1
A bifurcated trial is required to avoid the prejudice that would
ensue if the jurors were previously aware that defendant had been
convicted of one or more of the predicate offenses listed in
N.J.S.A. 2C:39-7a; see State v. Ragland, 105 N.J. 189, 193 (1986).
2
Although the indictment identifies the complaining witness by
her complete name, we use only her initials to protect her privacy.
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questions in a disruptive manner. She disregarded the prosecutor's
instructions, deliberately mentioned extraneous information that
was prejudicial to defendant, and walked out of the courtroom
during her cross-examination on the first day of trial.
Although the trial judge issued curative instructions to the
jury, P.K.'s obstreperous behavior eventually overwhelmed the
proceedings. It soon became clear that the curative instructions
could neither counteract the prejudice caused by the witness's
misbehavior nor deter her from continuing to disrupt the trial.
As a sanction for P.K.'s refusal to adhere to the prosecutor and
the court's repeated instructions, the trial judge sua sponte
dismissed the first three counts of the indictment3 "with
prejudice." The judge did not consult with the attorneys before
taking such an extraordinary action. More importantly, the judge
did not identify any legal authority that permits a judge in a
criminal trial to unilaterally dismiss a criminal charge "with
prejudice" as a sanction for the misconduct of the State's fact
witness, or to enter the functional equivalent of a judgment of
acquittal before the State has completed presenting its case in
chief.
3
The three counts the judge dismissed charged defendant with
second degree possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4a; third degree terroristic threats, N.J.S.A.
2C:12-3b; and fourth degree aggravated assault, N.J.S.A. 2C:12-
1b(4).
3 A-1653-14T1
The judge overruled the State's objection challenging her
authority to take this action and denied the State's motion to
declare a mistrial. Defense counsel acquiesced to the trial
judge's decisions without comment. The State's case then continued
with the indictment's remaining counts, which were part of the
first phase of a bifurcated trial. The State called a law
enforcement witness who testified about the execution of a search
warrant on defendant's residence, the seizure of defendant's
firearms, and the operability of defendant's weapons.
The jury found defendant guilty on the three counts of the
indictment that charged him with second degree possession of an
assault firearm, N.J.S.A. 2C:39-5f; and fourth degree possession
of a large capacity magazine, N.J.S.A. 2C:39-3j. The same jury
later reconvened in the second phase of the bifurcated trial and
convicted defendant on five counts of fourth degree possession of
a handgun following a conviction for possessing a controlled
dangerous substance, N.J.S.A. 2C:39-7a. The trial court sentenced
defendant to an aggregate term of thirteen years, with eight years
of parole ineligibility.
In this appeal, both sides have framed their arguments in a
manner that repudiates the positions they advanced before the
trial court. Defendant now argues the trial judge abused her
discretion in allowing the jury to render a verdict on the
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remaining counts in the indictment after she dismissed with
prejudice the first three counts that involved P.K. as the
complaining witness. Defendant claims the judge should have
interviewed each juror individually to determine whether any of
them had a negative impression of defendant based on P.K.'s
extensive testimony portraying him as a "bad person in general."
Defendant also argues the judge's curative instructions were
insufficient to counteract the prejudice caused by P.K.'s
testimony.
The State similarly abandons the position it adopted before
the trial court. In a letter in lieu of a formal brief submitted
pursuant to Rule 2:6-2(b), the State now argues the trial judge
did not abuse her discretion in denying its motion for a mistrial
because defendant was not prejudiced "and the jury was given a
sufficient curative instruction."
Despite the sophistry of the parties' positions, our duty as
appellate jurists is to determine whether the magnitude of the
trial judge's error is clearly capable of producing an unjust
result. R. 2:10-2. We are satisfied the trial judge's decision
cannot stand as a matter of law. The testimony of the State's
complaining witness is replete with extraneous, highly prejudicial
comments about defendant's propensity for violence and alleged use
of illicit drugs. After carefully reviewing the record, we are
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satisfied the trial judge's initial response to the witness's
improper commentary was insufficient to counteract its prejudicial
effect.
The trial judge has the ultimate responsibility to manage a
trial. When presiding, the judge must impress upon all of the
trial's participants that they are expected to behave in a manner
that promotes decorum and solemnity. Although a trial is an
inherently adversarial proceeding, the attorneys' zeal is
circumscribed by the Rules of Professional Conduct and their role
as officers of the court. Witnesses, especially those who have
been victims of a crime, are understandably emotionally invested
in the outcome of the proceedings. It is therefore particularly
important for judges to: (1) set clear guidelines on how witnesses
should respond to a lawyer's questions; and (2) establish and
enforce the boundaries of appropriate behavior. Here, the trial
judge erred when she delegated these responsibilities to the
prosecutor.
We also hold the trial judge erred when she denied the State's
motion to declare a mistrial after it became apparent that the
witness's misconduct had irreparably tainted defendant's right to
a fair trial. The judge's decision to dismiss the indictment's
first three counts was ineffective in counteracting the prejudice
caused by the witness's misconduct. More importantly, a Superior
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Court judge presiding in a criminal trial has no authority to sua
sponte dismiss a count in an indictment as a sanction for a lay
witness's misconduct before the State has completed presenting its
case in chief.
I
The First Day of Trial
On the first day of trial, the State called P.K. as its first
witness. She testified she had "a dating relationship" with
defendant that began in August 2012 and ended in a violent
confrontation on August 31, 2013. During this period, P.K. saw
defendant "on and off" and slept at his house occasionally. In
response to the prosecutor's questions, P.K. claimed defendant
bragged to his friends about having firearms in the house. She
testified defendant even pulled a machine gun out of his mattress
and said, "'Look what I got.'"
According to P.K., the event that gave rise to the first
three counts of the indictment occurred on August 31, 2013. She
arrived at defendant's house at approximately 10 p.m. P.K.
testified the following occurred that night:
PROSECUTOR: [T]ell us what happened when you
got to the defendant's house that night[.]
WITNESS: When I got to his house[,] he let me
in through the back, I believe, and he had
something -- he let out a big puff of smoke
and I got into an argument with him. He
grabbed my arm. He started hitting me so I
7 A-1653-14T1
tried to call the police. He pulled my phone
out. He broke my phone in half, threw it
against the dishes, started beating me up,
then went into his drawer, the same drawer
that he pulled out the gun from last time. I
saw him turning to me --
DEFENSE COUNSEL: Objection.
THE COURT: What's your objection?
DEFENSE COUNSEL: She's talking about something
that happened last time.
WITNESS: No, I am not, sir.
DEFENSE COUNSEL: Judge, we went over this
numerous times.
THE COURT: The objection is overruled but the
way I understood the testimony was about
August 31, 2013, correct?
PROSECUTOR: Yes.
[(Emphasis added).]
Although the judge overruled defense counsel's objection, the
first language we highlighted exemplifies the conduct that later
permeated P.K.'s testimony during cross-examination. Although
seemingly innocuous, her comment that defendant "let out a big
puff of smoke" is actually incendiary. As the trial judge later
explained, P.K.'s references to "smoke" were accompanied by a
"snorting" pantomime on the witness stand. Taken together, the
judge concluded that P.K. wanted the jury to view defendant as a
user of illicit drugs.
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The second highlighted portion reveals P.K.'s disruptive
tendencies while on the witness stand. As the record shows, P.K.
impulsively inserted herself into the colloquy between the judge
and defense counsel and personally refuted defense counsel's
objection by addressing him directly. These two elements of P.K.'s
temperament became the hallmark of her obstreperous demeanor,
which escalated out of control during defense counsel's cross-
examination.
When the prosecutor resumed her direct examination, she asked
P.K. to continue describing what occurred on the night of August
31, 2013. According to P.K., although defendant had broken her
cellphone, she was able to call the police using the home's
landline telephone. P.K. testified that when defendant discovered
she had called the police, he said: "I will fucking kill you. I
swear to God I will fucking kill you. I swear I will kill you for
this if you say anything." P.K. testified that when the police
arrived, she was "scared" and "didn't say one word." When asked
why she was scared, P.K. responded: "I was scared because of the
guns, because he beat me[,] and [because] he told me that he's
going to kill me."
After the police officers arrived, P.K. was transported to a
nearby hospital for a head injury that caused lumps. She had
visible bruises and abrasions "all over her body." The prosecutor
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showed P.K. a series of photographs taken the following day,
September 1, 2013, which purportedly depicted the injuries she
sustained to various parts of her body. P.K. also identified two
photographs that she claimed depicted her cellphone, which
defendant allegedly "broke . . . in half." A third photograph
depicted the wall-mounted landline telephone she used to call the
police. The last photograph depicted what P.K described as the
"machine gun under [defendant's] bed."4 Except for the excerpt
highlighted above, P.K. completed her testimony on direct
examination without incident.
P.K.'s disruptive behavior reached a critical point during
defense counsel's cross-examination. The first incident occurred
when defense counsel questioned P.K. about her trip to Greece to
visit defendant's parents in 2012. The following exchange
illustrates the problem:
DEFENSE COUNSEL: How long were you in
Greece[?]
. . . .
A. Two weeks. Unbearable weeks. Unbearable.
Isolation. One hundred ten degrees. No one,
no one else there. Wouldn't talk to me. Spent
the whole time ignoring me. It was lovely
traveling with him.
DEFENSE COUNSEL: Lovely traveling? When you
came back you decided the trip was over?
4
Although these photographs were admitted into evidence and
published to the jury, they are not part of the appellate record.
10 A-1653-14T1
A. Then he got back with his girlfriend he was
with for the whole time I was with him. Her
name was [N.M.]. They smoked crack together.
That's why he had a problem with our
relationship.
DEFENSE COUNSEL: Judge --
THE COURT: I have to talk to the attorneys.
(Sidebar with reporter)
THE COURT: [Prosecutor], did you not inform
your victim she can't talk about any prior bad
acts of the defendant?
PROSECUTOR: I did. He's asking the questions.
THE COURT: You're going to have to talk to
her. She should know this. This is like I
have to give a limiting instruction.
PROSECUTOR: All right. Perhaps . . . we can
break and I can reinforce that. It's 12:30
[p.m.] I can reinforce that.
THE COURT: I want to continue with the case.
DEFENSE COUNSEL: I have to see my son before
he goes away for [thirty] days. I don't mind
skipping lunch.
THE COURT: We'll continue. I'll give a
limiting instruction.
(Sidebar concluded)
[What occurs next is in the presence of the jury.]
THE COURT: [P.K.], can you step outside for a
moment[?]
Prosecutor, if you could step outside with
her. I just want to give the limiting
instruction, [Prosecutor]. Could you step
11 A-1653-14T1
outside with her[?] . . . I want to give the
instructions to the jurors. We'll call her
back in when we're ready.
PROSECUTOR: All right.
. . . .
THE COURT: [Addressing the jury]
You heard testimony with regards to some other
prior bad activity involving the defendant. I
believe the statement . . . was he was using
crack cocaine with some other individual by
the name of [N.M.]. There's absolutely no
evidence of that at all. You're to disregard
that completely as though you never heard it.
. . . [Y]ou are not at any point in time to
inject that in any way into your
deliberations. It's as though it never
happened. You are to completely disregard it
because there's absolutely no evidence of that
whatsoever.
At this point, the record shows P.K. returned to the
courtroom, took the witness stand, and resumed with her testimony
on cross-examination. Soon thereafter, P.K. testified that she
slept at defendant's house after she returned from Greece "because
he wouldn't let me leave and go home." Defense counsel stated:
"I've known Mr. Bitzas . . . twenty-eight years." Defense
counsel's statement prompted an immediate objection from the
prosecutor. After sustaining the objection, the judge made the
following comments in the jury's presence, which resulted in the
following exchange:
THE COURT: Absolutely. [Defense counsel],
you're either going to be the attorney or
12 A-1653-14T1
you're going to be the witness. Which is it
going to be? Tell me right now before we
continue with this trial. You know what the
court rules are. You cannot testify on behalf
of anyone.
DEFENSE COUNSEL: I'm trying to get the truth.
I'm getting less than the truth.
THE COURT: [Defense counsel], I'll see you at
sidebar.
[The following colloquy occurred at sidebar.]
THE COURT: What is the circus that's going
on in this courtroom? You know that you are
not supposed to talk about your personal
feelings about the defendant, about whether
or not you like him, whether or not he's your
good friend for twenty-eight years. If I
hear any more about a personal relationship
that you have with the defendant you're going
to get sanctioned and I'm going to have to
declare a mistrial.
. . . .
DEFENSE COUNSEL: I didn't do it on purpose.
THE COURT: The same thing with the
Prosecutor. When you have a domestic violence
case[,] the first thing that you have to do
is . . . tell the witnesses you can't talk to
them about all the bad things that ever
happened with regards to crimes. That's
another egregious violation.
PROSECUTOR: I have instructed.
THE COURT: This is like a circus in this
courtroom.
PROSECUTOR: I have instructed her. She even
-- when we got to the courtroom she said, "But
it happened."
13 A-1653-14T1
I said to her, "It doesn't matter. You're not
allowed to talk about [that]." She said,
"Okay, okay." I've instructed her.
THE COURT: If she does it again the case is
over. It's going to be a dismissal with
prejudice if she does it again. Now she's
been warned.
PROSECUTOR: I cautioned her.
THE COURT: Like a circus on both sides.
(Sidebar conference concluded.)
[(Emphasis added).]
Defense counsel resumed his cross-examination by asking P.K.
to describe the events that preceded the confrontation in
defendant's residence on August 31, 2013. According to P.K., she
first met defendant that night at a joint restaurant and bar. She
told defendant she was hungry and wanted to eat before consuming
any alcoholic beverages. P.K. testified that defendant had
finished eating by the time she arrived and ignored her many
requests to get something to eat. She nevertheless consumed
several alcoholic drinks and soon noticed she was "not sober."
Although she asked defendant to drive her home or tow her car,5 he
left the club without helping her.
5
P.K. testified defendant owned and operated a towing service
company.
14 A-1653-14T1
P.K. eventually drove to defendant's residence. Defense
counsel asked P.K. what happened when she arrived. P.K. responded
as follows:
I walked in and he was holding some glass thing
in his hand. He lets out a big puff of smoke.
His eyes got like this. He started drooling.
And I said this is where you went? This is
why I got stuck there? This why? [sic] This
is all why?
I held the phone up. He went like this. He
started grabbing me, hitting me. Cracked my
phone. I said stop hitting me. Enough.
Enough. Every time. No. I'm not putting up
with it anymore.
And this time he knocked me down. I tried --
He took my phone out of my hand, cracked it
in half, threw it against the dishes. The
garbage is right next to the dishes.
We pause to note that defense counsel did not object to P.K.'s
clear references to defendant's illicit drug use; nor did the
trial judge take any measures to dissuade the witness from
continuing to disregard the boundaries of acceptable testimony.
Counsel's use of open-ended questions on cross-examination
also allowed P.K. to frame her responses in an erratic fashion,
aimlessly wandering without direction. This approach permitted
P.K. to continue to respond in a manner that exacerbated the
"circus" atmosphere the judge sought to avoid. The following
exchange illustrates the point:
DEFENSE COUNSEL: July 18, 2012. You're still
dating Mr. Bitzas?
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A. I don't know when that was. Can you give
me some context[] clues?
DEFENSE COUNSEL: Couple [of] days after you
started to date him. A couple [of] days after
you started to date him [when] you said he
wasn't normal and he had a black eye[;] two
days later you're still dating him?
A. Yeah. That seemed like the day that he
brought all the people over when he showed the
machine gun, yes.
DEFENSE COUNSEL: Judge, this is ridiculous.
A. Actually you're right.
DEFENSE COUNSEL: It's improper testimony.
THE COURT: The objection is overruled. She
answered your question. You wanted to know
what happened two days later. She says that's
the time --
DEFENSE COUNSEL: I asked specifically were you
dating two days later.
THE COURT: She answered that question. Move
on to your next question.
[(Emphasis added).]
Once again, the record shows P.K. addressing defense counsel
directly as counsel interacts with the trial judge on a point of
procedure. This combative interaction between defense counsel and
P.K. continued unabated. Throughout her cross-examination, P.K.
continued to mention defendant's alleged "crack" use with a woman
she identified as defendant's girlfriend. At one point, P.K. even
16 A-1653-14T1
attempted to interact with a person seated in the section of the
courtroom reserved for the public.
THE WITNESS: She could have called the police.
And he said he's in Pennsylvania. He lied.
He was in a hotel room with [N.M.] smoking
crack in Fort Lee with my keys. I wanted to
know where they were. That's the only time
I saw her. I couldn't ask her for a tampon.
I asked her for keys to get in my house. She
wouldn't give me --
THE COURT: You have to wait until the next
question. What's your next question[?]
DEFENSE COUNSEL: Why does she have a key to
your apartment?
THE WITNESS: Who?
DEFENSE COUNSEL: You said you had to wait for
her, pointing to someone in the audience.
P.K. did not identify who she pointed to, but that person was
seated somewhere in the public section of the courtroom. From
this point forward, P.K.'s combative conduct against defense
counsel quickly degenerated into outright refusal to answer his
questions.
DEFENSE COUNSEL: Where does your other family
live?
A. I'm not telling you anything about my
family. I don't want him to know anything
about my family. He's a dangerous person. No
way. No way.
DEFENSE COUNSEL: [Judge,] [a]sk her to control
these outbursts.
17 A-1653-14T1
A. I'm not revealing any information about my
family to this criminal with guns.
DEFENSE COUNSEL: Judge, this is completely
improper.
A. That's completely improper your question
[sic].
THE COURT: [P.K.], you have to calm down. You
have to wait for the question and respond to
the question. Any other information [sic]
respond to the question.
All right, [defense counsel].
DEFENSE COUNSEL: How far was your family's
house?
A. None of your business, sir. I'm not
letting you know where my family is so he can
kill them with his guns. No, no. Sorry. He's
already threatened my life. He's already done
things to them. No way. You can ask me that
after he threatened to kill me? Are you
serious?
DEFENSE COUNSEL: You want to talk at sidebar?
THE COURT: No. Answer the question. How
long does it take you to go from one location
to your family's house? Don't give an
address.
A. My location to my family's house?
THE COURT: Yes. How many minutes?
A. Which family member are you talking about?
THE COURT: The one that you said you went to
when you could not get into your house and you
didn't want to pay for a locksmith overtime.
A. I don't know. I can't answer that. I
don't know where I got the key that night. I
18 A-1653-14T1
don't remember what happened. That's none of
anybody's business.
. . . .
DEFENSE COUNSEL: Who is there [at your
family's house]?
A. Somebody in my family. None of your
business, sir. None of your business, sir.
Please don't ask me any question[s] about my
family. I don't want him having anything to
do with my family. This is my mistake that I
went out with this piece of garbage and I don't
think that they should suffer or be involved
in any way.
Following several failed attempts to get P.K. to respond, the
trial judge directed defense counsel to "[a]sk another question
on another topic." When counsel asked P.K. if her family lives
in Fort Lee, P.K. responded: "None of your business. Let me go.
I need to take a break, please." At this point, the transcript
merely states: "Witness leaves courtroom." Although it was not
yet near the end of the court-day, the trial judge advised the
jurors that the trial would not resume because one of the attorneys
"has something I excused him for. They're going to attend to that
other case." The trial resumed the following day.
II
The Second Day of Trial
The second day of P.K.'s testimony began with the prosecutor
assuming a more aggressive, proactive role in objecting to
questions that he thought were designed to revisit areas covered
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on the previous day. However, the record shows defense counsel's
questions sought only to obtain responsive answers to the questions
P.K. previously refused to answer. The trial judge was sympathetic
to the State's approach. After sustaining the prosecutor's
objections, the judge addressed defense counsel directly as
follows:
THE COURT: Move on to another topic. Whatever
topic it may be but it has to be a different
topic. I think yesterday you explored it at
length. She's explained it again today that
she got a spare key. She then . . . got into
her apartment that night. I think that's been
now settled, that whole entire issue.
WITNESS: Thank you, your Honor.
The cross-examination proceeded relatively uneventfully from
this point forward. Defense counsel established that P.K. agreed
to travel to Greece with defendant after having known him for
approximately one month. Although she had kind words for
defendant's parents, who resided in Greece at the time, P.K.
described the trip as extremely unpleasant. Defense counsel also
questioned P.K. about the nature of her and defendant's activities
as a couple. The next point of contention occurred when defense
counsel sought to explore P.K.'s testimony concerning her seeing
defendant in Florida.
DEFENSE COUNSEL: You testified you met him in
Florida?
20 A-1653-14T1
A. I was in Florida and he was following me
around over there.
DEFENSE COUNSEL: He was following you in
Florida?
A. Yes, he was.
DEFENSE COUNSEL: Who were you with in Florida?
A. I don't know. He said he was in a hotel
room [or] something. But they tried to
separate us. His friend and the friend's
sister separated us so that he couldn't come
near me because they said he was bad news and
he just got out of jail. That's exactly what
happened.
DEFENSE COUNSEL: Judge, this is completely
improper testimony.
A. That was exactly what happened. That's
why.
THE COURT: There's an objection.
Jurors, I'm going to instruct you again this
trial is specifically about an incident that
happened in August of 2013.
[Defense counsel], you're asking her questions
about something when she was eighteen,
nineteen years old. You're opening the door.
You're stepping right into it.
I'm going to inform the jurors that last bit
of testimony you just heard, that she believed
that she heard something with regards to him
being in jail, that that be completely
stricken from the record. You're not to
consider that in any way. It's hearsay.
Remember what I explained to you about
hearsay. What other people say most of the
time is inaccurate. Like playing telephone.
By the time it gets to another person it's an
21 A-1653-14T1
out-of-court statement. It's completely not
relevant, is not credible testimony in any
way. It's as though it never was said in
court.
[Defense counsel], I'm going to remind you
again you should probably continue with your
cross examination as it relates to this
case[,] but you're opening the door to all
these other things that are not relevant.
Immediately following the judge's rebuke of the manner in
which he questioned P.K., defense counsel asked P.K.: "Did you
hook up with him when you were in Florida?" This prompted an
immediate objection from the prosecutor. The judge sustained the
objection and again criticized defense counsel in the presence of
the jury. The judge admonished that "what somebody did when they
were eighteen[,] if it's even true[,]" is not relevant to the
case. Defense counsel responded by acknowledging he was not aware
the Florida trip occurred when P.K. was eighteen years old.
From this point forward, the matter proceeded in the same
disorderly fashion. The judge continued to disparage and criticize
defense counsel in the jury's presence; P.K. continued to defy the
decorum expected from a witness in a criminal trial by answering
defense counsel's questions with nonresponsive, extraneous matters
intended to cast defendant as a dangerous and violent man who used
illicit drugs on a regular basis. For example, when defense
counsel asked P.K. if defendant ever met her parents, she
responded: "No way. My family would never want to meet him.
22 A-1653-14T1
Never. They would never let him near me or their house. No way.
No way." When defense counsel followed up to clarify, P.K.
admitted that defendant had met her mother, but not her "mother
and father." When defense counsel remarked "[V]ery clever," P.K.
made the following unsolicited statement:
THE WITNESS: Can you not mention my
handicapped mother? I don't want him near
her. He entered her house. It's a very
sensitive area. If he comes near her -- she
was getting crank calls from him. I don't
want to stray off the subject. However, I
don't want him involved in her life.
In reacting to this event, the trial judge failed to correct
the witness's improper, unsolicited comments, but again
reprimanded defense counsel in the jury's presence.
THE COURT: You asked the question. I keep
on telling you. You keep on going on all
these other topics and then you don't like the
answer.
DEFENSE COUNSEL: Actually the answers are not
responsive.
THE COURT: They're responsive. You're asking
if he met the mother and father.
DEFENSE COUNSEL: I had no idea the mother had
a handicap. This is the first I'm hearing of
it.
PROSECUTOR: Your Honor, again we're going to
get some testimony from counsel . . . as to
what he knew and what he didn't know.
DEFENSE COUNSEL: I didn't know any of this.
23 A-1653-14T1
THE WITNESS: She had a stroke. She's in a
wheelchair. Please leave her alone. She
doesn't need his trauma that we had from him
or enough [sic]. I don't want to bring her
up. Would you mind please? Out of respect
please. And understanding about the
experiences that I've been through, please
understand. Keep that in mind. That's all
I'm asking.
DEFENSE COUNSEL: All I wanted to know is
. . . did he ever meet your mother. That was
a yes or no question.
A. He followed me to my house one day. He
entered her house. I was having a private
conversation with her. He said, "I locked
your keys in your house [P.K.]." He entered
her house, opened it without --
DEFENSE COUNSEL: Yes or no.
A. Yes, he opened it and trespassed without
anybody inviting him.
DEFENSE COUNSEL: There's no control here.
THE COURT: Wait until he asks the question
and answer the question.
Go ahead. Ask your next question.
THE WITNESS: Next question please.
DEFENSE COUNSEL: Is it fair to say your mother
is a neighbor?
A. Listen, can you please get off my mother
please. I'm begging you. I really am in fear
for my life and her life because of him.
Please. You're asking me where she lives now?
DEFENSE COUNSEL: I ask for an instruction
about this.
24 A-1653-14T1
PROSECUTOR: Objection again for these
editorial comments by counsel, your Honor.
It's not appropriate for this trial.
This chaotic scene continued in the jury's presence, while
the judge and counsel discussed their respective recollections of
what P.K. had said about her family during her testimony on the
previous day. Finally, the judge again admonished defense counsel
to remain focused on the event identified in the indictment.
THE COURT: [Defense counsel], I'm going to
direct you to ask questions about the
incident. [The] August 31, [2013] incident.
I've given you more than enough leeway to
explore all different topics on cross-
examination[,] but we [have to] concentrate
on this indictment.
DEFENSE COUNSEL: Excellent.
THE COURT: Make sure that you discuss it with
your client[,] but every question from now on
better be with regards to that indictment.
DEFENSE COUNSEL: Judge, Mr. Bitzas needs to
use the bathroom.
THE COURT: He can wait. He's a big boy.6
DEFENSE COUNSEL: He has diabetes.
THE COURT: Have a seat. Go ahead.
6
We have included this remark by the trial judge because it
displays insensitivity and a lack of judicial decorum. Although
levity is not always inappropriate in a courtroom, this remark is
facially offensive because it gratuitously demeans defendant based
on his gender, shows insensitivity to a basic human need, and
ignores a potentially serious health issue.
25 A-1653-14T1
Defense counsel resumed the contentious cross-examination,
trying to remain focused on the incident that occurred on August
31, 2013. P.K. remained combative and undeterred. She claimed
defendant consistently lied to her about the nature of their
relationship and continued his involvement with N.M. while dating
her. When defense counsel characterized her relationship with
defendant as akin to "living in a fictitious world," P.K.
responded: "Everything I'm finding is like illegal, messages,
drugs, everything." Defense counsel did not object.
The matter finally reached a critical point of no return when
defense counsel questioned P.K. about what occurred in defendant's
house on August 31, 2013. When defense counsel asked P.K. if
defendant was "attentive" to her, she responded: "He was attentive
to his drugs." This prompted defense counsel to turn to the trial
judge and say: "This is ridiculous." At the prosecutor's request,
the parties approached the judge at sidebar to discuss the matter.
Once outside the jury's presence, the prosecutor stated for the
first time that defendant was also facing a disorderly persons
charge for possessing drug paraphernalia; this charge was being
tried simultaneously by the trial judge as a municipal court. The
prosecutor argued the judge could use P.K.'s testimony to support
the factual findings the court would need to make with regard to
this charge.
26 A-1653-14T1
The judge rejected the prosecutor's argument as an improper
attempt to justify P.K.'s repeated references to defendant's
illicit drug use. The judge noted that evidence of drug
paraphernalia should be presented through the testimony of police
witnesses. The prosecutor ultimately agreed and abandoned this
argument. The judge then returned to P.K.'s repeated violations
of the strict limits she was required to follow with respect to
her testimony. The prosecutor assured the judge that she had
instructed P.K. accordingly. The judge excused the jurors to
address the problems associated with P.K.'s testimony and to
address P.K. directly:
THE COURT: There's been an objection from the
defense about the fact the victim, [P.K.],
once again has talked about the defendant
using drugs[.]
. . . .
I gave [the prosecutor] significant time to
go outside. She assured me she had spoken to
[P.K.], that she understands now. It was
inadvertent. She actually had advised you
during the preparation for the trial that you
could not discuss the drug activity. And then
she reminded you of it again because we had a
violation in court. And that is just not
allowed pursuant to the rules of evidence.
Although it happened, although you may have
observed it[,] the rules of evidence do not
allow for you to talk about drug activity in
a case such as this because he's not charged
with possession of cocaine or possession of
any drug for that matter.
27 A-1653-14T1
[The prosecutor] explained to me, assured me
that she had spoken to you, [P.K.], and that
it would not happen again.
Yesterday we finished the trial early because
[P.K.] . . . requested a break and I allowed
her to take that break so she could compose
herself. She appear[ed] to be very upset. I
thought it best rather than continue for
another hour until 2:30 [p.m.] we would go for
the day.
Today there has been eight violations of that
court order.
I have her, I counted them, eight times the
victim today has mentioned either smoke, she's
been snorting on the witness stand, mimicking
what the defendant was doing which in no
uncertain terms is snorting cocaine or
something with a glass pipe. She did it at
least three or four times.
There [were] an additional three . . .
mention[s] of drug activity even before the
August 31, 2013 incident and then the last one
was the one we just heard where she said oh,
he's more concerned about his drugs. That's
what he was concerned about.
There's too many violations. I tried to cure
the problem with the jurors by giving them an
instruction to disregard it[,] but I cannot
do it anymore with eight violations.
I'm going to dismiss this half of the trial.
This part of the trial is dismissed with
prejudice.
. . . .
It's only with regards to the counts involving
[P.K.].
. . . .
28 A-1653-14T1
That would be count one, [second degree]
possession of [a] weapon for [an] unlawful
purpose. It would be count two, which is the
. . . [third degree] terroristic threats. And
it would be count three, which is [fourth
degree] pointing of a firearm. The other
counts, however, are going to remain because
those other counts have nothing to do with
[P.K.].
[(Emphasis added).]
At first, the prosecutor objected to the judge's sua sponte
decision, arguing the curative instructions were sufficient to
counteract any prejudice. The State also took the position that
there was "nothing improper" about the witness's comments that she
saw defendant blowing "a puff of smoke." The prosecutor maintained
the statement was ambiguous and permitted the jury to infer
defendant was smoking a cigarette. Finally, the prosecutor again
argued this evidence was relevant to the disorderly persons
offense, which the judge would need to decide as the trier of
fact.
The judge rejected these arguments and clarified that when
P.K. testified about seeing defendant blow a puff of smoke, she
"used her hands to explain it to the jurors" and "started
snorting." The judge specifically found that from the "way [P.K.]
presented her hands, it's clear as though someone was using some
type of glass thing." The judge ruled P.K.'s testimony in this
regard was improper for the same reasons "you can't bring out the
29 A-1653-14T1
previous conviction." The judge also emphasized that these were
not isolated mishaps by a nervous witness. "She's clearly
let[ting] the jurors know about the fact that the drug activity
is not just a one[-]time incident." Based on this record, the
judge found that giving the jury further curative instructions
would be futile. In the judge's own words, "It's now too
prejudicial."
The judge then addressed P.K. directly as follows:
I wanted [P.K.] to be here to hear it. I
didn't want someone else explaining it to her.
I wanted you to hear from me . . . the reasons
the case is being dismissed.
Perhaps you're very upset and for that reason
you weren't able to follow the instructions
of the [c]ourt but I tried. Eight times I let
it go. I can't let it go after eight times.
I wanted you to hear it from me. You're
excused.
The judge advised defense counsel to inquire as to whether
defendant was willing to consider reopening plea negotiations
based on the court's decision to dismiss the first three counts
of the indictment with prejudice. The prosecutor made clear that
the State was not willing to modify its previous plea offer based
on these events. At this point, the court recessed for lunch.
At the start of the afternoon session, but outside the jury's
presence, the prosecutor addressed the trial judge as follows:
PROSECUTOR: Your Honor, I did go and meet
with members of my office.
30 A-1653-14T1
I just would like to state that the State is
not sure and not in agreement that the [c]ourt
has the authority to dismiss those counts
before the end of the State's case.
. . . .
THE COURT: It has nothing to do with the end
of the State's case. It's a mistrial and
dismissal with prejudice for failure to follow
the court order.
PROSECUTOR: I understand.
THE COURT: It has nothing to do with the
strengths of the [State's] proofs[,] which is
a different standard.
PROSECUTOR: I understand. However, and I'm
accepting your Honor's decision, but . . . the
reasons for the dismissal with prejudice were
because of . . . undue prejudice to this jury.
. . . .
However, proceeding with this jury in light
of your Honor's decision is not the proper
remedy. And the reason for that, if I may
say, if down the line this defendant is
convicted after this trial and raises the
conviction on appeal, one of his claims would
be that this jury, because of your Honor's
decision that there was undue prejudice, he
will raise that claim that this jury was
prejudiced.
Now, the State will not have a claim at that
point because your Honor has made that
decision. We're asking for a mistrial[;]
dismiss this jury and let's start anew, get a
trial date with the remaining counts, certain
persons and the possession of an assault
weapon.
[(Emphasis added).]
31 A-1653-14T1
The judge denied the State's motion for a mistrial. The
judge ruled that she was going to instruct the jury that the three
dismissed counts in the indictment "were dismissed pursuant to a
legal ruling" and that they had "nothing to do with the State [or]
the defense." Defense counsel did not participate in this matter.
When the jury returned to the courtroom to start the afternoon
session, the judge apprised the jurors as follows:
With regards to the indictment, if you
recall[,] . . . there were six counts. Because
of legal reasons, and the State has not been
involved in this and neither has the defense,
but I as the Judge for a legal reason have
dismissed counts one, two[,] and three.
We're going to proceed with the remainder of
the case[,] which is the possession of the
assault firearm, which is count nine, and the
other two counts, five and six, [which] were
possession of the large capacity ammunition
magazine. So there's three counts. So when
you deliberate you are not to consider any of
the testimony that you've heard up until now.
It will be stricken and you're not to consider
it in any way in your deliberations. You can
only consider the testimony that is going to
start from this point forward because the
testimony that's going to begin from this
point forward has to do with those counts, the
ammunition, [the] large capacity magazine[,]
and the assault firearm.
Call your next witness.
The State's next and only witness was Fort Lee Detective
Matthew Traiger. During his testimony, Traiger described the
firearms seized from defendant's residence pursuant to a search
32 A-1653-14T1
warrant on September 1, 2013. Traiger testified that when he
began his shift that day, he was ordered to respond to defendant's
residence to relieve an officer who was previously assigned to
conduct "surveillance on the home in an unmarked vehicle."
Traiger's shift began at 4 p.m. He arrived at defendant's
residence to relieve the other officer approximately thirty
minutes later.
Although the jurors were instructed to disregard everything
they had heard over the past two days, Detective Traiger testified
that the purpose of conducting surveillance on defendant's home
"was a pending arrest and search warrant for a party in the
premises." When asked to identify "the party" in question, Traiger
responded: "Dean Bitzas." Traiger then pointed to defendant and
identified him as the person he arrested that day after finding a
Norinco SKS assault firearm and two large capacity ammunition
magazines in his residence. The State rested at the conclusion
of Detective Traiger's testimony.
III
Against this record, defendant raises the following arguments
on appeal:
POINT I
IT WAS AN ABUSE OF DISCRETION TO CONTINUE WITH
THE SAME JURY AFTER THE DISMISSAL OF THE
DOMESTIC VIOLENCE COUNTS DUE TO
COMPLAINANT/VICTIM'S REPEATED TESTIMONY ABOUT
33 A-1653-14T1
DEFENDANT'S PRIOR BAD ACTS RESULTING IN
PREJUDICE TO THE DEFENDANT AND TAINTING OF THE
JURY.
POINT II
THE COURT'S INSTRUCTION TO THE JURY FOLLOWING
THE OTHER CRIME EVIDENCE WAS NOT SUFFICIENTLY
PROPER AND DID NOT CURE THE PREJUDICIAL EFFECT
FROM THE MINDS OF THE JURY.
We begin our analysis by reaffirming that "'[a] trial judge
has the ultimate responsibility to control [a] trial[.]'" State
v. Cusumano, 369 N.J. Super. 305, 311 (App. Div.) (quoting Horn
v. Vill. Supermarkets, Inc., 260 N.J. Super. 165, 175 (App. Div.
1992), certif. denied, 133 N.J. 435 (1993)), certif. denied, 181
N.J. 546 (2004). A trial judge is entrusted with the sound
discretion to manage the conduct of a trial in a manner that
facilitates the orderly presentation of competent evidence,
whether in the form of physical exhibits or witness testimony made
under oath, subject to the laws of perjury. The exercise of this
authority is circumscribed by the judge's responsibility to act
reasonably and within constitutional bounds. Ryslik v. Krass, 279
N.J. Super. 293, 297–98 (App. Div. 1995).
As we have long-recognized,
The trial judge is the symbol of experience,
wisdom and impartiality to the jury and, as
such, must take great care that an expression
of opinion on the evidence should not be given
so as to mislead the jury. He must not throw
his judicial weight on one side or the other.
34 A-1653-14T1
[State v. Zwillman, 112 N.J. Super. 6, 20–21
(App. Div. 1970) (emphasis added), certif.
denied, 57 N.J. 603 (1971).]
Here, the record shows the judge was not mindful of these
admonitions. On a number of occasions, the judge attempted to
control P.K.'s obstreperous behavior by reprimanding defense
counsel in the jury's presence. The judge criticized defense
counsel for asking questions that "opened the door" for P.K. to
testify about areas or topics that the judge viewed as not germane
to the August 31, 2013 incident. The judge also permitted P.K.
to opine when the prosecutor objected to defense counsel's
questions. The record shows these failures were not isolated
incidents. The judge frequently did not: (1) address P.K.
directly; (2) order her to stop talking when an attorney objected;
or (3) instruct her to wait for the judge to rule on the objection
before responding.
The judge's failure to exercise control first manifested
itself during the afternoon session of the first day of P.K.'s
testimony. When defense counsel cross-examined P.K. about a trip
to Greece she took shortly after meeting defendant, P.K.
gratuitously stated that defendant and another woman, identified
here as N.M., "smoked crack together." When defense counsel
objected, the judge discussed the matter with the attorneys at
sidebar. However, instead of formulating an appropriate response
35 A-1653-14T1
with the input of counsel, the judge asked the prosecutor: "[D]id
you not inform your victim she can't talk about any prior bad acts
of the defendant?" When the prosecutor responded that she had
spoken to P.K. about her testimony, the judge again shifted the
burden to the prosecutor to remind the witness. The judge believed
she was only responsible for giving a curative instruction to the
jury.
The judge directed P.K. and the prosecutor to step outside
the courtroom. The judge then instructed the jury to "disregard
completely" P.K.'s testimony that defendant "was using crack
cocaine with some other individual by the name of [N.M.]." P.K.
and the prosecutor returned to the courtroom. Thereafter, P.K.
took the witness stand and defense counsel resumed his cross-
examination.
This event exemplifies the judge's misguided approach to
courtroom management. Her role as the ultimate authority and
presiding judge in the trial required that she directly address
P.K. outside of the jury's presence. The judge should have sternly
and clearly instructed the witness that she should respond to the
questions without deliberately adding information prejudicial to
defendant. The judge should have made equally clear that the
witness was testifying under the court's direction and control.
She was thus expected to answer all questions truthfully,
36 A-1653-14T1
respectfully, and completely. If a witness does not understand a
question, she should say so before attempting to respond. This
will provide an attorney with the opportunity to rephrase the
question, if possible.
We recognize that victims of a crime have a right under our
Constitution to be "treated with fairness, compassion and respect
by the criminal justice system." N.J. Const. art. I, ¶ 22. The
Legislature also adopted the Crime Victim's Bill of Rights to
ensure, inter alia, that a crime victim is "free from intimidation,
harassment or abuse by any person[,] including the defendant or
any other person acting in support of or on behalf of the
defendant, due to the involvement of the victim or witness in the
criminal justice process[.]" N.J.S.A. 52:4B-36(c).
However, when victims testify in a criminal trial, they are
subject to the authority of the judge presiding over the
proceedings and must follow the judge's instructions. If a witness
is unwilling or unable to adhere to a trial judge's instructions
or the witness's courtroom conduct becomes so obstreperous that
it interferes with the orderly administration of the trial, the
judge has the authority and responsibility to take reasonable
measures to restore order, preserve the decorum and solemnity of
the proceedings, and protect the defendant's right to a fair trial.
37 A-1653-14T1
Here, the record shows P.K. repeatedly introduced extraneous
and prejudicial information that was calculated to cast defendant
as a dangerous individual. The judge characterized what happened
in her courtroom as a "circus." The chaotic spectacle that
occurred here arose from the witness's disruptive behavior, the
defense attorney's inability to conduct an appropriate cross-
examination, and the trial judge's misunderstanding of her role
and responsibility to manage a contentious criminal trial.
As former trial judges, we are keenly aware of the challenge
of maintaining order in a courtroom when confronted with a
contentious witness. To assist our trial colleagues who may
encounter similar circumstances, we suggest the following options.
When faced with a recalcitrant witness, a judge should address the
witness directly, but outside of the jury's presence. The judge
should next identify the problem with particularity. Problems
include: (1) not allowing the attorney to finish the question; (2)
continuing to speak after an objection has been raised; (3)
unresponsive answers; (4) providing extraneous, prejudicial
information; and (5) arguing with the attorney asking the
questions. Having identified the problem, the judge should clearly
and concisely explain to the witness that the conduct disrupts the
orderly presentation of the evidence to the jury and clashes with
the decorum and solemnity of the proceedings.
38 A-1653-14T1
If the witness does not respond to this approach, but instead
continues to disrupt the proceedings, as P.K. did here, the judge
should confer with counsel and seek their input outside of the
jury's presence. Before acting, the judge must determine whether
the misconduct is willful, based on the judge's observations and
interactions with the witness. If the judge finds the witness's
misconduct is willful, the judge should state the basis for this
finding on the record. Thereafter, the judge can consider if
enjoining the witness from continuing to testify is a
constitutionally viable alternative by balancing defendant's right
to cross-examination and the State's right to present its case.
We emphasize that these are just suggestions. The decision to
grant a mistrial "'to prevent an obvious failure of justice'"
always remains within the sound discretion of the trial judge.
State v. Smith, 224 N.J. 36, 47 (2016) (quoting State v. Harvey,
151 N.J. 117, 205 (1997)), cert. denied, 528 U.S. 1085, 120 S. Ct.
811, 145 L. Ed. 2d 683 (2000).
However, the trial court must exercise its discretion to
declare a mistrial within the following analytical framework:
To address a motion for a mistrial, trial
courts must consider the unique circumstances
of the case. State v. Allah, 170 N.J. 269,
280 (2002); State v. Loyal, 164 N.J. 418, 435–
36 (2000). If there is "an appropriate
alternative course of action," a mistrial is
not a proper exercise of discretion. Allah,
supra, 170 N.J. at 281. For example, a
39 A-1653-14T1
curative instruction, a short adjournment or
continuance, or some other remedy, may provide
a viable alternative to a mistrial, depending
on the facts of the case. See State v. Clark,
347 N.J. Super. 497, 509 (App. Div. 2002).
[Smith, supra, 224 N.J. at 47.]
Applying this standard of review, we conclude the trial judge
abused her discretion in failing to declare a mistrial. The record
shows a pattern of undeterred transgressions by the State's key
fact witness. The trial judge counted eight individual instances
in which this witness introduced irrelevant and highly prejudicial
information about defendant. These were not isolated events. The
witness was also highly combative with defense counsel. The judge
failed to address the witness directly about her misconduct.
Instead, she reprimanded defense counsel in the jury's presence
for failing to ask a proper question. The trial judge's conduct
severely prejudiced defendant. As Justice Long noted:
[I]n presiding over a jury trial, the judge,
who holds a powerful symbolic position vis-a-
vis jurors, must maintain a mien of
impartiality and must refrain from any action
that would suggest that he favors one side
over the other, or has a view regarding the
credibility of a party or a witness.
[State v. O'Brien, 200 N.J. 520, 523 (2009).]
Although the parties have repudiated the legal positions they
advanced before the trial court, we decline to allow this
incongruity to determine the outcome here. The integrity of our
40 A-1653-14T1
criminal justice system and defendant's constitutional right to a
fair trial drive our analysis. These principles lead us to one
conclusion: What occurred in this trial cannot stand.
We make clear that the issue of double-jeopardy is not
addressed by this decision. We nevertheless make the following
brief comments. It is well-settled that "jeopardy attaches to a
defendant when he [or she] is put on trial in a court of competent
jurisdiction upon a valid indictment and a jury is impaneled and
sworn to determine the issue of his guilt or innocence of the
crime charged." Allah, supra, 170 N.J. at 280. But not every
mistrial implicates the double jeopardy clauses of the Fifth
Amendment of the United States Constitution, as applied to the
states by the Fourteenth Amendment, Benton v. Maryland, 395 U.S.
784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969), or
Article I, Paragraph 11 of the New Jersey Constitution.7
Here, the trial judge sua sponte dismissed with prejudice the
first three counts in the indictment as a sanction against P.K.'s
disruptive behavior. The judge did not have the authority to take
this action. A judge presiding over a criminal jury trial cannot
7
Although New Jersey's double-jeopardy clause has been described
as "textually narrower in scope," State v. Dunns, 266 N.J. Super.
349, 362 (App. Div.), certif. denied, 134 N.J. 567 (1993), "the
double-jeopardy protections provided in the State and federal
constitutions are essentially coextensive in application." Ibid.;
see also State v. Koedatich, 118 N.J. 513, 518 (1990).
41 A-1653-14T1
enter a judgment of acquittal before the State has completed
presenting its case and without applying the standards the Supreme
Court established in State v. Reyes, 50 N.J. 454, 458–59 (1967);
see also R. 3:18-1. "Only where the governmental conduct in
question is intended to 'goad' the defendant into moving for a
mistrial may a defendant raise the bar of double jeopardy to a
second trial after having succeeded in aborting the first on his
own motion." State v. Gallegan, 117 N.J. 345, 358 (1989) (quoting
Oregon v. Kennedy, 456 U.S. 667, 676, 102 S. Ct. 2083, 2089, 72
L. Ed. 2d 416, 425 (1982)).
There is no indication in the record that the judge considered
the double-jeopardy implications of her decision. The parties
have not briefed whether a decision declaring a mistrial would bar
the State from trying defendant on the charges as originally
reflected in the indictment. The State also did not seek timely
appellate review of the judge's decision to dismiss with prejudice
the first three counts in the indictment. We thus express no
opinion on this issue.
IV
Conclusion
The jury's verdict finding defendant guilty of second degree
possession of an assault firearm, N.J.S.A. 2C:39-5f, and fourth
degree possession of a large capacity magazine, N.J.S.A. 2C:39-
42 A-1653-14T1
3j, is vacated. The jury's verdict reached in the second phase
of the bifurcated trial, finding defendant guilty of five counts
of fourth degree possession of a handgun following a conviction
for possessing a controlled dangerous substance, N.J.S.A. 2C:39-
7a, is also vacated. The matter is remanded for retrial consistent
with this opinion.
Reversed and remanded. We do not retain jurisdiction.
43 A-1653-14T1