                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2768-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAJHON H. RICHARDSON,
a/k/a RAJON RICHARDSON,
RAJOHN RICHARDSON, and
RASHON RICHARDSON,

     Defendant-Appellant.
____________________________

                    Submitted September 24, 2019 – Decided October 10, 2019

                    Before Judges Hoffman and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 16-03-0217.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Stefan Van Jura, Deputy Public Defender, of
                    counsel and on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Valeria Dominguez, Deputy Attorney
                    General, of counsel and on the brief).
PER CURIAM

        Defendant appeals from his conviction for first-degree carjacking under

N.J.S.A. 2C:15-2. We affirm.

                                          I.

        On September 8, 2015, defendant confronted D.C. 1 at gunpoint in

Elizabeth, demanding he exit his Dodge truck. Defendant searched D.C., took

his cell phone and wallet, and drove away with his truck. D.C. called the police

and reported the carjacking.

        About one hour later, defendant rear-ended J.G.'s vehicle in Woodbridge

while driving D.C.'s truck. When J.G. exited his vehicle, defendant told him not

to call the police because defendant carjacked the truck he was driving, had a

"burner" on him, which J.G. understood was a gun, and was high. Nonetheless,

J.G. fled and called the police.

        Woodbridge police officers responded to J.G.'s call and went to the

accident scene. They found defendant inside D.C.'s truck and arrested him.

After conducting a search of defendant, the officers found D.C.'s driver's license,

credit cards, and an imitation gun. At the police station, the officers also found

drugs on defendant.


1
    We use initials to protect the confidentiality of the victims. R. 1:38-3(d)(9).
                                                                            A-2768-17T3
                                          2
      The Elizabeth police department learned of the accident involving D.C.'s

truck and defendant's arrest in Woodbridge that night and consulted with the

Woodbridge police department about the arrest. An Elizabeth police officer

went to the Woodbridge police department the evening of November 24, 2015,

to charge defendant with carjacking and robbery arising out of the incident

involving D.C.

      On December 29, 2015, a Middlesex County Grand Jury returned

Indictment No. 16-12-1516 charging defendant with possession of a controlled

dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); terroristic threats,

N.J.S.A. 2C:12-3(b); and possession of an imitation firearm for an unlawful

purpose, N.J.S.A. 2C:39-4(e).

      On February 29, 2016, defendant pled guilty to third-degree possession of

a CDS, fourth-degree possession of an imitation firearm for an unlawful

purpose, and several motor vehicle violations. On July 29, 2016, defendant was

sentenced to three-years of non-custodial probation on the Middlesex County

charges.

      Similar proceedings ensued in Union County. On March 17, 2016, a

Union County Grand Jury returned Indictment No. 16-03-0217, charging

defendant with: first-degree carjacking, N.J.S.A. 2C:15-2 (count one); first-


                                                                       A-2768-17T3
                                      3
degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); and second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count

four).

         On February 27, 2017, defendant moved before Judge Regina Caulfield to

dismiss Union County Indictment No. 16-03-0217, arguing a violation of the

mandatory joinder rule under N.J.S.A. 2C:1-8(b) and Rule 3:15-1(b). In an oral

opinion rendered on March 3, 2017, the judge denied the motion finding

defendant's Union and Middlesex County offenses did not "[arise] from the same

episode" so as to "trigger mandatory joinder."      The judge concluded, "the

offenses are factually different in time, place, victim and the manner in which

the offenses were committed." The Middlesex County offenses arose from a

"car accident" while the Union County offenses arose from a "carjacking" and

robbery.

         On November 13, 2017, following the denial of his request for a Wade2

hearing, defendant pled guilty to first-degree carjacking (count one), in

exchange for the State's recommendation that the remaining counts be




2
    United States v. Wade, 388 U.S. 218 (1967).
                                                                        A-2768-17T3
                                        4
dismissed, and defendant serve a custodial sentence of twelve years, with an

eighty-five percent period of parole ineligibility.

       On January 26, 2018, the sentencing judge imposed a ten-year term of

imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2.

       On appeal, defendant argues the following point:

             POINT I

             BECAUSE THE UNION COUNTY PROSECUTION
             WAS BARRED BY DEFENDANT'S MIDDLESEX
             COUNTY    CONVICTIONS   FOR    OFFENSES
             ARISING OUT OF THE SAME, CONTINUOUS
             INCIDENT, THE COURT ERRED IN DENYING
             DEFENDANT'S MOTION TO DISMISS THE UNION
             COUNTY INDICTMENT.

                                        II.

       We reject defendant's argument that the judge misapplied the mandatory

joinder rule and therefore erred by denying his motion to dismiss the Union

County Indictment. We review de novo the judge's ruling denying the motion.

See State v. Williams, 172 N.J. 361, 368-72 (2002).

       Defendant's contention that the Union and Middlesex offenses should

have been joined together involves consideration of a statute and court rule.

Both N.J.S.A. 2C:1-8(b) and Rule 3:15-1(b) provide in pertinent part that,


                                                                        A-2768-17T3
                                         5
              a defendant shall not be subject to separate trials for
              multiple criminal offenses based on the same conduct
              or arising from the same episode, if such offenses are
              known to the appropriate prosecuting officer at the time
              of the commencement of the first trial and are within
              the jurisdiction and venue of a single court.

        Accordingly, the application of N.J.S.A. 2C:1-8(b) and Rule 3:15-1(b) is

the same. State v. Catanoso, 269 N.J. Super. 246, 272 (App. Div. 1993). In

State v. Yoskowitz, 116 N.J. 679, 701 (1989), our Supreme Court set forth the

following criteria that a defendant must satisfy to invoke the mandatory join der

rule:

              (1) the multiple offenses are criminal;

              (2) the offenses are based on the same conduct or arose
              from the same episode;

              (3) the appropriate prosecuting officer knew of the
              offenses at the time the first trial commenced; and

              (4) the offenses were within the jurisdiction and venue
              of a single court.

        Here, the State does not dispute that defendant satisfied prongs one and

three of this analysis. Under prong one, defendant was clearly charged with

crimes and under prong three, the prosecuting officer knew of the offenses

because defendant was served with the Union County complaint while he was

under arrest at the Woodbridge police department.


                                                                         A-2768-17T3
                                         6
      Courts apply a "flexible" approach when determining whether a defendant

has satisfied the second prong of the mandatory joinder analysis. Williams, 172

N.J. at 371. Relevant factors include:

            [T]he nature of the offenses, the time and place of each
            offense, whether the evidence supporting one charge is
            necessary and/or sufficient to sustain a conviction
            under another charge, whether one offense is an integral
            part of the larger scheme, the intent of the accused, and
            the consequences of the criminal standards
            transgressed.

            [Ibid.]

      Courts give "heightened significance" to the "time and place of the

offense[s], and whether one offense is part of a larger scheme." Ibid. Where

the time, place, and victim are factually distinct, having the same modus

operandi for separate crimes does not necessarily make the offenses part of a

larger scheme. State v. Pillot, 115 N.J. 558, 567 (1989).

      Here, the offenses were clearly not based on the same conduct and did not

arise from the same episode. The modus operandi was different in each instance,

and there were different victims.

      Regarding prong four, Rule 3:14-1(a) provides:

            An offense shall be prosecuted in the county in which
            it was committed, except that . . . [i]f it is uncertain in
            which one of [two] or more counties the offense has
            been committed or if an offense is committed in several

                                                                          A-2768-17T3
                                         7
             counties prosecution may be had in any of such
             counties.

      Here, defendant's offenses took place in Union and Middlesex Counties,

respectively. Defendant's conduct was calculated in the Union County crimes ,

but there is no evidence to suggest he intended to commit a carjacking in

Middlesex County. Moreover, the carjacking and robbery were not part of a

larger scheme.

      We disagree with defendant's characterization that he threatened J.G. to

evade prosecution for the carjacking thereby constituting a larger scheme.

Clearly, the offenses were not within the jurisdiction and venue of a single court.

The crimes here involved different victims in different locations at different

times. We conclude that the mandatory joinder rule did not require one trial ,

and defendant was not subject to "oppression, harassment, or egregious

deprivation" of due process rights as the result of the State's serial prosecutions.

Yoskowitz, 116 N.J. at 712.

                                         III.

      Defendant also argues for the first time on appeal that the separate

prosecutions here violated the double jeopardy clauses of the United States and

New Jersey Constitutions. Generally, we decline to consider issues not raised

before the trial court, even constitutional issues, unless they are jurisdicti onal in

                                                                              A-2768-17T3
                                          8
nature or substantially implicate the public interest. State v. Galicia, 210 N.J.

364, 383 (2012); Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R.

2:6-2 (2020). Neither exception is satisfied here. Nevertheless, we address

defendant's argument for the sake of completeness.

      Defendant's argument is devoid of merit. Both the United States and New

Jersey Constitutions provide double jeopardy protections. The United States

Constitution provides that "[n]o person shall . . . be subject for the same offense

to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. Similarly,

the New Jersey Constitution provides that "[n]o person shall, after acquittal, be

tried for the same offense." N.J. Const. art. I, ¶ 11. New Jersey's double

jeopardy protection is interpreted as coextensive with that of the United States

Constitution. State v. Miles, 229 N.J. 83, 92 (2017).

      The double jeopardy clause provides three protections, including 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. (citing North Carolina v. Pearce, 395 U.S. 711, 717

(1969)).

      The Supreme Court introduced the same-elements test in Blockburger v.

United States, 284 U.S. 299 (1932). The test provides that "where the same act


                                                                           A-2768-17T3
                                        9
or transaction constitutes a violation of two distinct statutory provisions, the test

. . . is whether each provision requires proof of a fact which the other does not."

Miles, 229 N.J. at 93 (quoting Blockburger, 284 U.S. at 304). If each statute

requires proof that the other does not, the offenses are not the same and the

second prosecution may continue. Ibid.

      Years later, the Supreme Court introduced the same-evidence test to

coexist with the same-elements test in Illinois v. Vitale, 447 U.S. 410 (1980).

Under Vitale, a second prosecution could be barred if it relied solely on the same

evidence used to prove the first prosecution. 447 U.S. at 421; State v. De Luca,

108 N.J. 98, 107 (1987).       Finding the Vitale test unworkable without an

exorbitant amount of exceptions, the Supreme Court abandoned the dual test in

favor of the same-elements test articulated in Blockburger. Miles, 229 N.J. at

94 (citing United States v. Dixon, 509 U.S. 688, 704 (1993)).

      While a majority of states followed suit soon thereafter, this State

continued to rely on both the same-elements and same-evidence test until

deciding Miles in 2017. Id. at 96 ("We resolve the question of which test applies

in our courts by adopting the same-elements test as the sole double-jeopardy

analysis, thereby realigning New Jersey law with federal law."). Because the

Miles decision applies prospectively to offenses committed after May 16, 2017,


                                                                             A-2768-17T3
                                        10
and because the offenses here occurred in 2015 and 2016, both the same -

elements and same-evidence tests still apply in the alternative. De Luca, 108

N.J. at 107 ("[W]e conclude that Vitale intended the second 'prong' or test as an

alternative to the first.").

      Certainly, the Union County prosecution was proper under the same -

elements test. The same-elements test addresses whether each provision of the

relevant offenses requires proof of a fact that the other does not. Blockburger,

284 U.S. at 304. If each offense requires proof of an additional element absent

in the other, the offenses are not the same and the test allows for the second

prosecution. Miles, 229 N.J. at 93.

      Here, the Union County prosecution was not barred by the same-elements

test because the Union County carjacking and robbery require vastly different

proofs than the Middlesex County conviction for possession of a CDS and an

imitation weapon. Even the Union County possession of a weapon charges,

required different elements of proof than the Middlesex weapon charge.3


3
   Defendant was convicted in Middlesex County for possession of an imitation
firearm for an unlawful purpose, which requires that "[a]ny person who has in
his possession an imitation firearm under circumstances that would lead an
observer to reasonably believe that it is possessed for an unlawful purpose is
guilty of a crime of the fourth degree." N.J.S.A. 2C:39-4(e). In Union County,
defendant was charged with unlawful possession of a handgun, requiring that


                                                                         A-2768-17T3
                                      11
Therefore, each charged Union County offense required proof of a fact that the

Middlesex County charges and convictions did not. As a result, the same-

elements test was not a bar to the Union County prosecution.

      Similarly, the Union County prosecution was proper under the same -

evidence test. The test provides that "[i]f the same evidence used in the first

prosecution is the sole evidence in the second, the prosecution of the second

offense is barred."    De Luca, 108 N.J. at 107.       Defendant argues that a

prosecution of the Union County charges would have to rely solely on the

evidence of the first to prove the defendant's identity as the carjacker.

Specifically, defendant claims Union County must depend on the Middlesex

County evidence that he was removed from D.C.'s vehicle, defendant was in an

accident with J.G., and defendant was in possession of the gun that was used to

threaten D.C.

      Defendant relies on dicta in De Luca, which provides that if the State's

case for death by auto relied solely on evidence of intoxication to prove


"[a]ny person who knowingly has in his possession any handgun, including any
antique handgun, without first having obtained a permit to carry the same . . . is
guilty of a crime of the second degree" and with possession of a firearm for an
unlawful purpose, requiring that "[a]ny person who has in his possession any
firearm with a purpose to use it unlawfully against the person or property of
another is guilty of a crime of the second degree." N.J.S.A. 2C:39-5(b); N.J.S.A.
2C:39-4(a).
                                                                          A-2768-17T3
                                       12
recklessness, the second prosecution for driving while intoxicated would be

barred for relying on the same proofs as the first case. Id. at 108. The Court in

De Luca remanded the matter because, without the record of the death by auto

trial, it was unable to ascertain whether intoxication was the sole evidence relied

upon, or whether other evidence—such as lighting, weather, and road

conditions—was considered. Id. at 108-09. If other evidence was used in the

first prosecution, then the second prosecution would not be barred. Id. at 109.

      Here, the State had other methods of proving the Union County offenses

independent of the evidence used in the first prosecution, notably, the testimony

of D.C. While the Middlesex evidence may have been referenced or relied upon,

it was not the sole means of proving defendant's identity in the Union County

offenses and, therefore, the second prosecution is not barred by the same-

evidence test.

      Neither the same-elements nor same-evidence test, used in the alternative

to determine whether a second prosecution is being brought for the same offense

as a preceding prosecution in violation of double jeopardy principles, barred the

Union County prosecution. The elements of the offenses charged in Union and

Middlesex Counties are plainly distinct; they do not involve the same elements.

Applying Mills, there is no double jeopardy clause violation.


                                                                           A-2768-17T3
                                       13
      We are mindful of the principle that an indictment should not be dismissed

except "only on the clearest and plainest ground" and only if it is "manifestly

deficient or palpably defective." State v. Twiggs, 233 N.J. 513, 531-32 (2018).

We do not find that standard to have been met by defendant in this case.

      Affirmed.




                                                                           A-2768-17T3
                                      14
