                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-3363-13T3

STATE OF NEW JERSEY,
                                             APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                                  July 10, 2014
v.                                              APPELLATE DIVISION

QUAHEEM JOHNSON,

     Defendant-Respondent.
_______________________________________

           Argued May 28, 2014 – Decided July 10, 2014

           Before    Judges        Sabatino,      Hayden      and
           Rothstadt.

           On appeal from the Superior Court of New
           Jersey,   Law   Division,  Hudson County,
           Indictment No. 08-08-1494.

           Gerard H. Breland, Special Deputy Attorney
           General/Acting Assistant Prosecutor, argued
           the cause for appellant (Gaetano T. Gregory,
           Acting Hudson County Prosecutor, attorney;
           Mr. Breland, on the brief).

           Peter    T. Blum, Assistant Deputy Public
           Defender, argued the cause for respondent
           (Joseph   E.   Krakora,    Public  Defender,
           attorney; Mr. Blum, on the brief).

     The opinion of the court was delivered by

ROTHSTADT, J.S.C. (temporarily assigned)

     An   indictment     charged    defendant     Quaheem    Johnson       with

various   offenses,    including   murder,     felony   murder,      and   armed
robbery, relating to his committing two separate robberies and

killing one of the victims.            A jury could not reach a unanimous

verdict as to those charges but, as to murder and armed robbery,

it convicted defendant of uncharged, lesser-included offenses.

Despite the jury being deadlocked as to the greater, charged

offenses, the trial court accepted the jury's verdict and had it

recorded.       The State sought thereafter to retry defendant on

felony murder and murder,1 and defendant moved to bar a retrial

arguing     that     double     jeopardy        principles    and    the    improper

termination of his prosecution barred a new trial as to those

charges.       The trial court agreed with defendant's arguments and

granted his motion.            We stayed further proceedings and granted

the State leave to appeal the trial court's order.

    Defendant's         circumstances           raise    a   question      of      first

impression:          whether    a   trial       court   improperly   terminates          a

defendant's prosecution, within the meaning of N.J.S.A. 2C:1-9,

by accepting a partial verdict where the jury is deadlocked as

to greater, charged offenses, but is unanimous in its finding of

guilt     as    to    uncharged,      lesser-included         offenses.            After

considering the State's argument in the context of the unusual

circumstances revealed by the record, we answer the question in


1
  On appeal, the State argues that it seeks to retry defendant
only on felony murder.



                                            2                                   A-3363-13T3
the affirmative and affirm the trial court's determination that

defendant's retrial on felony murder is barred because of the

improper termination of his prosecution.2

                                  I.

     According   to    the   State's    proofs,   on   April     8,     2008,

defendant shot and killed Ramon Francisco Morales while in the

course of taking his necklace.         Shortly thereafter, and several

blocks away, defendant held another victim, Javier Galeas, at

gunpoint and took his chain as well.          Police responded to the

scene and, after ten to fifteen minutes, spotted defendant in

the general vicinity of the commission of the crimes.                    They

commanded defendant to stop, but he fled.         While being pursued,

he pointed a handgun in the direction of one of the officers.

As a result, the officer discharged his weapon twice, but missed

defendant.   The officer eventually apprehended defendant, and

both victims' necklaces were found on his person.              The police

also recovered a gun in a nearby yard, and ballistics tests

later confirmed that it was the murder weapon.

     Defendant   was    charged   in    an   indictment   with        murder,

N.J.S.A. 2C:11-3(a) (count one); felony murder, N.J.S.A. 2C:11-


2
     Because we agree with the court's determination that
defendant's prosecution was improperly terminated, we choose not
to address the court's separate determination that defendant's
retrial was barred by double jeopardy considerations.



                                   3                              A-3363-13T3
3(a)(3)     (count    two);    armed        robbery,     as   to   Morales,     N.J.S.A.

2C:15-1(b)       (count    three);      unlawful         possession    of   a    weapon,

N.J.S.A. 2C:58-4, 39-5(b) (count four); possession of a weapon

for   an   unlawful       purpose,    as     to   Morales,     N.J.S.A.     2C:39-4(a)

(count     five);    armed    robbery,       as    to    Galeas,     N.J.S.A.    2C:15-1

(count six); possession of a weapon for an unlawful purpose,

N.J.S.A.    2C:39-4(a)       (count     seven);         aggravated    assault,     as   to

police     officer    Jesse    Hillburn,3         N.J.S.A.    2C:12-1(b)(4)       (count

eight); resisting arrest, N.J.S.A. 2C:29-2(a) (count nine); and

possession of a weapon for an unlawful purpose as to Hillburn,

N.J.S.A. 2C:39-4(a) (count ten).4

      Defendant's first trial ended in a mistrial due to jury

intimidation.        The court conducted a new trial from October 9 to

November    9,    2012.       The    jury     deliberated      from    October     23   to

October 25; then, after Hurricane Sandy, which devastated New

Jersey     on   October    29,      2012,    it   continued        deliberations     from

November 7 to November 9.              The original presiding judge became

unavailable, so a different judge presided over the last three




3
   Hillburn is the officer at whom defendant allegedly pointed
the gun.
4
   The offenses are those charged to the jury by the court. The
original indictment charged defendant in three other counts with
unlawful possession of a weapon, but those charges merged due to
the fact that the same weapon was used in all offenses.



                                              4                                  A-3363-13T3
days of the jury's deliberations and ultimately received the

jury's verdict.

       Before charging the jury, the first judge supplied it with

a verdict sheet that sequentially followed the counts in the

indictment.        The verdict sheet contained each of the indicted

charges and, where appropriate, the uncharged, lesser-included

offenses.        It specifically instructed that the lesser-included

offenses were not to be considered unless the jury's verdict was

"Not   Guilty"      on   the   greater,      charged      offenses.5       It    treated

greater,     uncharged      offenses    in       the    same    manner    relative      to

lesser,     uncharged      offenses     –    the       lesser   offense    was     to   be

considered only if the verdict was not guilty as to the greater

offense.         For example, as to count one, murder, the jury was

instructed to first consider "purposeful and knowing" murder;

then, only if its verdict was not guilty as to murder, the jury

could move on to consider aggravated manslaughter.                         Similarly,

the jury was instructed that it must first find defendant not

guilty of aggravated manslaughter, before moving on to consider

reckless manslaughter.

       As   to    the    jury's   use   of       the    verdict   sheet,    the     judge

initially instructed:

5
   The parties agree that there was no issue raised at trial, or
now on appeal, relating to defendant's consent to the inclusion
of these uncharged offenses.



                                             5                                   A-3363-13T3
           Now you all        have a copy of the verdict
           sheet, don't      look at it yet though.    I'll
           point it out     to you when it's necessary. I
           mean, I'll –     as we go over each charge, I'll
           direct you       to the verdict sheet and –
           explain it.

    The judge then charged the jury with general instructions

and followed them with charges as to each offense contained in

the indictment, substantially in accordance with the model jury

charges.    However, unlike the verdict sheet, the judge did not

sequentially follow the counts in the indictment.              Instead, he

first   charged    count    three,   first-degree   robbery    of   Morales,

followed    by    the   lesser-included    offenses    of     second-degree

robbery and theft.         Next, the judge charged count two, felony

murder.    As the judge explained:

                Now I'm going to go to Count 2 . . .
           felony murder.   The State contends that on
           April   19th,  2008,  while   defendant  was
           engaged in the commission of or flight after
           committing the crime of robbery as charged
           in Count 3, which is why I defined robbery
           for you first. . . .

                  . . . .

                You cannot find defendant guilty of
           felony murder unless you first find him
           guilty beyond a reasonable doubt of having
           committed the crime charged in Count 3,
           robbery.     So that's to be your first
           consideration and again, which is why I gave
           you robbery first, all right.




                                      6                             A-3363-13T3
     Next, the judge charged the jury with count one, murder,

and then instructed,6

                 If . . . you determine the State has
            not proven beyond a reasonable doubt the
            defendant purposely or knowingly caused
            death or serious bodily injury resulting in
            death, then you must find him not guilty of
            murder and go on to consider whether the
            defendant should be convicted of the crimes
            of aggravated or reckless manslaughter.

While charging the jury with these two lesser-included offenses,

the judge told the jury that they were to consider reckless

manslaughter    only    if   they   were   not   convinced    that      defendant

committed aggravated manslaughter.

     At the conclusion of the court's charge as to reckless

manslaughter, the judge stated, "You'll note I gave you the

verdict sheet and the details of [the] lesser included [offenses

are] there."     Afterwards, the judge instructed the jury with the

remaining     charges    following    their      sequential     order    in    the

indictment,     but     grouping    them   together     where     appropriate.

However, the judge did not review with specificity or "explain"

the verdict sheet which, again, unlike the charge, was arranged

sequentially, following the order of the indictment.                      In the

6
    The court first instructed the jury that it could find
defendant guilty if the jurors were satisfied the State proved
his guilt beyond a reasonable doubt.      The court did not,
however, tell the jury that if it found defendant guilty of
murder it should skip aggravated and reckless manslaughter and
move on to the next count.



                                       7                                 A-3363-13T3
judge's only other comments to the jury about the verdict sheet,

he stated,

                  I've given you the verdict sheet to
             assist you in . . . your deliberations. The
             verdict sheet is evidence of nothing.    It's
             simply a document to help you arrange your
             thoughts relative to deliberations and to
             reveal what your verdict is in open court.

      Thereafter, following three days of initial deliberations

and the hurricane-related hiatus, the second judge substituted

for   the    first   judge.    Two    significant      incidents   occurred

involving the jury while the second judge presided over its

deliberations.7      First,   the   judge   had   to   address   the    jury's

confusion about when it should consider the uncharged, lesser-

included offenses about which it was instructed by the first

judge.      Second, the judge had to deal with a dispute that arose

between two jurors.

      Specifically, on November 8, the jurors asked the following

in a note:

             [W]ith regard to counts that have multiple
             sections   that   require  a   decision   on
             the . . . first part rather, to move to the
             subsequent sections, do we have to find
             unanimously guilty or not guilty in order to

7
    In   fact, the second judge was forced to confront several
issues    in a trial about which that judge had no familiarity
under    the extraordinary circumstances created by Hurricane
Sandy.     We are sympathetic to those circumstances into which the
second   judge was placed with very little notice.




                                     8                                 A-3363-13T3
          move to the next section or can we be
          deadlocked on the first part and move to the
          second and third section[?]

     After   reviewing   the   note       with   the   second   judge,   both

counsel agreed that the jury should be re-instructed to make

unanimous findings as to the greater, charged offense in each

count, before considering an uncharged, lesser-included offense,

if   appropriate,   in   accordance         with   the    verdict   sheet's

instructions.   The second judge disagreed, based on that judge's

concern that by so instructing, the court would be directing the

jury's deliberations.    The second judge ultimately instructed:

          [T]he verdict sheet is not evidence, nor is
          it law. It is simply a tool that [the first
          judge] prepared to assist you in your
          deliberations. You may deliberate about the
          charges in any order you wish to, the
          [c]ourt cannot direct your deliberations.

          [(Emphasis added).]

     The second judge gave that instruction recognizing that the

jury could be "deadlocked" as to the greater, charged offense,

because "[i]t's happened before in cases, it's something that –

that can in fact, occur."       The second judge, therefore, never

told the jurors that they had to find defendant not guilty of

the charged offense before they could consider the uncharged,

lesser-included offenses.

     Before sending the jury back to continue its deliberations,

the second judge also stated,



                                      9                             A-3363-13T3
                With that I ask you to return to the
           jury room.   You can certainly send out any
           other questions you wish to and remember,
           please do not tell me where you stand,
           whether you are deadlocked or – I'm sorry,
           whether . . . you stand – where you stand as
           to each charge.8

    Later that same day, the court's officer informed the judge

and counsel about a dispute between jurors two and eleven, and

that juror two was outside the jury room refusing to go back in

because she "did not want to be ridiculed anymore."       The judge

spoke to juror two with counsel present, who informed the judge

that she was insulted by more than one other juror "at different

points."     The judge then sent juror two back to the jury room

and brought out juror eleven, who explained that juror two was

"refusing to participate or just mak[ing] up stuff that is no

way related to the facts that were presented by either side of

the case."     Juror eleven informed the judge that "we've all

agreed that we should take a break and come back and cool off

and start over in the morning."      The judge sent juror eleven




8
   After the jury returned to deliberate, counsel pointed out to
the second judge that the judge told the jury not to disclose if
it was deadlocked.    The judge conceded that was said but the
judge believed the statement was already corrected. It was not,
although, as we note infra, it was later addressed by the second
judge.




                                10                         A-3363-13T3
back to the jury room and conferred with counsel.9    Defendant's

attorney requested a modified Allen/Czachor10 charge, although


9
   Although not an issue before us, we note that the judge did
not question the other jurors about whether the feuding jurors'
dispute impacted their deliberations, or give any instructions
to the jury about the dispute or take any further action to
guarantee the integrity of the deliberations or the safety of
the jurors. See State v. Dorsainvil, 435 N.J. Super. 449, 487 &
n.20 (App. Div. 2014) ("When violence intrudes into the
deliberative process in any form and to any degree, a trial
judge must take immediate action to investigate what occurred,
not only to determine whether a defendant's right to a fair and
impartial trial has been compromised, but also to ensure the
safety and security of all involved.").
10
    Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L.
Ed. 528 (1896); State v. Czachor, 82 N.J. 392 (1980).       The
charge is given to the jury when the court is informed they may
be deadlocked.    See State v. Ross, ___ N.J. ___, ___ (2014)
(slip op. at 12-14); State v. Figueroa, 190 N.J. 219, 231-39
(2007).   Usually, upon being so notified, a court will charge
the jury in accordance with the Model Jury Charge (Criminal),
"Judge's Inquiry When Jury Reports Inability To Reach Verdict"
(2013), as follows:

              You     have    indicated     that    your
         deliberations have reached an impasse.       Do
         you feel that further deliberations will be
         beneficial or do you feel that you have
         reached    a    point    at    which    further
         deliberations would be futile?           Please
         return to the jury room to confer, and
         advise me of your decision in another note.

     Then, if the jurors notify the judge they are deadlocked,
the judge will instruct them in accordance with Model Jury
Charge (Criminal), "Judge's Instructions On Further Jury
Deliberations" (2013),

              It is your duty, as jurors, to consult
         with one another and to deliberate with a
         view to reaching an agreement, if you can do
                                                    (continued)


                               11                          A-3363-13T3
the jury never informed the court that it was deadlocked.                        After

considering     the   request,    the     judge    decided      not    to    give   the

charge but to break for the day.

      Before    the     judge   brought    the     jury   into    the       courtroom,

defendant's counsel returned to the issue of the court telling

the   jury   not   to    inform   the     court    that   it     was    deadlocked.

Counsel moved for a mistrial on that basis.                      The court denied

the   motion,   telling     counsel     that      the   court    would,      however,

"remind them" that the jurors should not disclose where they

stand in their voting at any point in their deliberations, "[o]f

course that doesn't apply to whether or not they're deadlocked."

When the judge brought the jury out to dismiss them for the day,

the judge in fact told the jury to

             remember . . . if you do send me questions,
             just to clarify something I said before, I



(continued)
          so without violence to individual judgment.
          Each of you must decide the case for
          yourself, but do so only after an impartial
          consideration of the evidence with your
          fellow jurors.     In the course of your
          deliberations, do not hesitate to re-examine
          your own views and change your opinion if
          convinced it is erroneous but do not
          surrender your honest conviction as to the
          weight or effect of evidence solely because
          of the opinion of your fellow jurors, or for
          the mere purpose of returning a verdict.
          You are not partisans.     You are judges —
          judges of the facts.



                                        12                                    A-3363-13T3
             don't want to know where you stand on any
             given charge. . . .

                  But certainly for deadlock, that's a
             different issue, okay.    So I – I think I
             might have misspoken . . . in that case. If
             you're deadlocked, I need to know that.

During the rest of the jury's deliberations, the jury never

informed the judge it was deadlocked, and the judge never gave

the modified Allen/Czachor charge.

       Prior    to   the   second   judge's    subsequently   receiving       the

jury's verdict in open court and having it recorded, the jury

sent another note to the court.             The note stated that the jurors

wanted "all the jury requests [sic] to be polled on each and

every count."        After conferring with counsel, the judge decided

that   the     court   would   have   the    foreperson   state   the    jury's

verdict as to a count, do the polling as to that count by asking

each juror if his or her individual verdict was guilty or not

guilty, then move on to the next count.             When the judge brought

the jury out to take its verdict the following occurred:

             THE   COURT:   Good  afternoon,  Ladies  and
             Gentlemen.   I'm aware that you have reached
             a verdict. Also, I received [a] note which
             I marked J-22, all of the jurors request to
             be polled on each and every count and I
             intend to do so in this regard.

             I will ask the foreperson what the verdict
             was as to each count and then move to each
             juror and ask whether you – that is your
             verdict as well.




                                       13                               A-3363-13T3
            So would the foreperson please rise. Miss
            Foreperson, has this jury agreed upon a
            verdict?

            MS. FOREPERSON:     Yeah.

            THE COURT: You seem hesitant.             Well, is the
            verdict unanimous?

            MS. FOREPERSON:     Not on all counts.

            THE COURT: Not on all counts.  All right.
            Have you reached a verdict on any of the
            counts?

            MS. FOREPERSON:     Yes.

     The judge then asked counsel if they had any objection to

the court proceeding to take the verdicts.                The prosecutor had

no objection and defendant's attorney deferred to the court's

"discretion."

     The foreperson then advised the court that the jury did not

reach   a   verdict   as   to   the    charged       offense   of     count   one,

purposeful and knowing murder.              The second judge did not poll

the jury about its vote on the murder charge.                        Instead, the

second judge immediately inquired as to the uncharged, lesser-

included offense of aggravated manslaughter, despite the jury

not reaching any verdict as to the greater charged offense of

murder.11    The   foreperson    advised       the    judge    the    jury    found


11
    At oral argument before us, the prosecutor conceded that
defense counsel did not waive his ability to appeal this
procedure by not interjecting an objection at that moment.



                                       14                                 A-3363-13T3
defendant guilty of aggravated manslaughter.                           The judge then

polled    the    jurors      by   asking   each      of   them,       "[I]s   that   your

verdict?"       Each responded in the affirmative.12                    The judge then

moved    on     to   count    two,     felony    murder,        and    the    foreperson

informed the court that the jury again did not reach a verdict

as to that charge.           The judge did not poll the jury but rather

moved on to count three, armed robbery.                    Again, the foreperson

informed the judge that the jury did not reach a verdict as to

that    charge.       The    judge   moved      on   to   the    uncharged,     lesser-

included offense of second-degree robbery, and the foreperson

informed the court that the jury found defendant guilty of that

charge, and then the judge polled the jury.                       The judge followed

the same process for the remaining counts, and the foreperson

advised the court that the jury found defendant guilty of all

additional      charges,      except    for     counts    five,       possession     of   a

weapon for an unlawful purpose; eight, aggravated assault for

pointing a firearm at Officer Hillburn; and ten, another charge

of possession of a weapon for an unlawful purpose.

       The verdict sheet reflected the verdict as "deadlocked" for

counts one, murder; two, felony murder; three, armed robbery;

five, possession of a weapon for an unlawful purpose; eight,


12
     It is assumed juror nine did so as well, although                                the
transcript indicates "no audible response recorded."



                                           15                                   A-3363-13T3
aggravated      assault;       and   ten,    possession     of    a    weapon     for   an

unlawful     purpose.          The   verdict      sheet    also       reflected    that,

despite being deadlocked on the greater charged offenses, the

jury    rendered      guilty    verdicts     as     to   aggravated     manslaughter,

N.J.S.A. 2C:11-4(a)(1), reckless manslaughter, N.J.S.A. 2C:11-

4(b)(1),13      and    second-degree        robbery,      N.J.S.A.     2C:15-1(a)(2),

which    were    all    uncharged,      lesser-included          offenses     that      the

verdict sheet instructed should only be considered if the jury

found defendant not guilty of the charged offense.

       After    the    judge    received      the    verdict     and    was   about     to

discharge the jury, one of the jurors reminded the judge that

the jury "wanted to be polled on all of the counts, even the

ones that we've not reached a verdict on – the ones that we're

deadlocked on.          That was the unanimous opinion of the jury."

After conferring with counsel, the court ultimately declined to

poll the jurors on the undecided counts because "[i]t would be

inappropriate for [the court] to delve into how each of [the

jurors] voted on counts in which [the jury] was not unanimous."14

The judge then thanked and discharged the jury.


13
   The foreperson never announced this verdict to the court.                            It
only appeared on the verdict sheet.
14
    Although not material to our decision in this case, we note
our agreement with the second judge's decision to not poll
jurors where a verdict was not reached.     Polling should only
                                                     (continued)


                                            16                                  A-3363-13T3
      The State subsequently sought to retry defendant for murder

and felony murder.        Defendant filed a motion to bar a retrial

based on 1) double jeopardy, and 2) improper termination of the

original     prosecution,      N.J.S.A.    2C:1-9(d),    1-10(a),    1-10(c).

After considering the parties' oral argument, the first judge

granted defendant's motion.         As explained in the judge's written

"Statement of Reasons," the court found that double jeopardy

precluded the State from re-trying defendant for felony murder

and   murder.      The    court    further    reasoned    that    defendant's

prosecution had been improperly terminated because the jury was

allowed to convict defendant of lesser-included offenses without

acquitting him of the greater charges, and a retrial would be

prejudicial     under    the   circumstances.      As    the     first   judge

explained:

                The second trial judge did not respond
           specifically to the jury question relative
           to the order in which greater and lesser
           included   offenses   must  be   considered,
           although the first trial judge did so in
           [the judge's] instructions to the jury and
           in [the] verdict form.     The second trial
           judge gave a response as it relates to
           separate counts in the indictment. That is,
           the jury can deliberate as to separate
           counts in the indictment in any order they
           wish.    This did not answer the jury's
           specific question, although it is unknown


(continued)
occur when a verdict is reached.             R. 1:8-10; State v. Milton,
178 N.J. 421, 432-33 (2004).



                                      17                             A-3363-13T3
         whether    the   jury        may   have   believed
         otherwise.

              The second trial judge then accepted
         verdicts on the lesser-included offenses
         without the defendant being acquitted of the
         greater offense. Rather than acquitting the
         defendant on the counts of Murder, Armed
         Robbery,   and   Felony   Murder,  the  jury
         informed the [j]udge that they could not
         reach a verdict.     Despite this, the jury
         found the defendant guilty of Aggravated
         Manslaughter and Robbery; however, those
         offenses should not have been considered
         since the jury did not acquit the defendant
         of the greater offenses, they simply failed
         to reach a verdict.

              Following Cooper,[15] if the jurors are
         split between the greater charge and the
         acquittal, the result is a "hung" jury.
         Nevertheless,   since   the   defendant  has
         already been found guilty of Aggravated
         Manslaughter and Robbery, (although the
         evidence overwhelmingly supported a murder
         conviction),    the    defendant   will   be
         prejudiced if as a result of a "hung jury"
         on the greater offenses, he is forced to go
         back to trial to face Felony Murder and
         Murder counts.     The defendant would find
         himself facing a trial where the State is
         arguing elements and using evidence for
         charges for which he has already been found
         guilty.    The defendant should not have to
         suffer because Cooper, supra, 151 N.J. at
         366, was not specifically followed.        A
         retrial   would   certainly   prejudice  the
         defendant.




15
    State v. Cooper, 151 N.J. 326, 366 (1997) (" Ordinarily,
juries may not consider lesser-included offenses until they have
acquitted of the greater offense.").




                                 18                           A-3363-13T3
      The court subsequently denied the State's motion for a stay

of   the    proceedings,    and     the     State       then    filed     an   emergent

application to appeal the order barring retrial and denying a

stay of the proceedings.            Defendant did not move for leave to

cross-appeal any of the trial court's rulings.                          Sentencing has

been stayed, and no judgment of conviction has been entered.

                                       II.

      The State contends that the court's granting of defendant's

motion to bar his retrial as to felony murder constituted a

misapplication of the law.          Our review of "the legal conclusions

and analysis of the trial court . . . is plenary."                             State v.

Harris, 211 N.J. 566, 578-79 (2012) (citing State v. Handy, 206

N.J. 39, 45 (2011)).             We therefore review the judge's legal

conclusions de novo.             State v. Harris, 181 N.J. 391, 420-21

(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.

2d 898 (2005).        Applying this standard here, we agree with the

trial      court    that   the     second      judge         improperly     terminated

defendant's        prosecution,    thereby      preventing         the     State   from

retrying him on any of the charges upon which the jury was

"deadlocked."       N.J.S.A. 2C:1-9(d), 1-10(a), 1-10(c).

      Ordinarily      "double     jeopardy     .    .    .     do[es]    not   prohibit

retrial of a defendant when a prior prosecution for the same

offense has ended in mistrial attributable to the inability of




                                          19                                   A-3363-13T3
the jury to agree on a verdict," because "the jeopardy to which

the     defendant     is   exposed        is        considered     a    continuation       of

original jeopardy, which was not terminated by the mistrial."

State    v.   Abbati,      99   N.J.      418,       425-26   (1985).         However,       a

successive prosecution for the same offense is barred if the

former    prosecution      was       improperly        terminated,        N.J.S.A.     2C:1-

9(d), "and the subsequent prosecution is for an offense of which

the     defendant     could      have     been         convicted        had   the    former

prosecution     not    been     improperly           terminated."         N.J.S.A.     2C:1-

10(c).        Termination       of    a   prosecution         is       improper     "if   the

termination is for reasons not amounting to an acquittal, and it

takes place after the jury was impaneled and sworn."                                N.J.S.A.

2C:1-9(d).16


16
     N.J.S.A. 2C:1-9(d) states that termination is not improper if,

              (1)      The   defendant consents  to   the
              termination or waives, by motion to dismiss
              or otherwise, his right to object to the
              termination[;]

              (2)     The trial court finds that the
              termination is necessary because of the
              failure of the jury to agree upon a verdict
              after a reasonable time for deliberation has
              been allowed[; or]

              (3)     The trial court finds that the
              termination is required by a sufficient
              legal reason and a manifest or absolute or
              overriding necessity.




                                               20                                   A-3363-13T3
    As we have previously explained,

           Under the New Jersey Code of Criminal
           Justice, a prosecution of a defendant is
           barred by a former prosecution for the same
           offense upon the same facts when the former
           prosecution   was    improperly   terminated.
           N.J.S.A. 2C:1-9d. However, a termination is
           not considered improper where "[t]he trial
           court   finds   that   the   termination   is
           necessary because of the failure of the jury
           to agree upon a verdict after a reasonable
           time for deliberation has been allowed."
           N.J.S.A. 2C:1-9d(2).     The trial court is
           vested with "broad discretionary authority"
           to declare a mistrial due to a deadlocked
           jury and its decision to do so may be
           reversed only for an abuse of discretion.

           [State v. Paige, 256 N.J. Super. 362, 381
           (App. Div.), certif. denied, 130 N.J. 17
           (1992) (citations omitted).]

    We are satisfied that the second judge's acceptance of a

partial verdict constituted a mistaken exercise of the court's

discretion resulting in the improper termination of defendant's

prosecution.      Generally, a matter is not terminated until the

jury's verdict is final, which occurs when "'the deliberations

are over, the result is announced in open court, and no dissent

by a juror is registered.'"          State v. Rodriguez, 254 N.J. Super.

339, 348 (App. Div. 1992) (quoting United States v. Rastelli,

870 F.2d 822, 834 (2d Cir.), cert. denied, 493 U.S. 982, 110 S.

Ct. 515, 107 L. Ed. 2d 516 (1989)).          Where the court determines

that, in a criminal action, the jury has not reached a unanimous

verdict,   "the    jury   may   be    directed   to   retire   for   further



                                      21                             A-3363-13T3
deliberations     or    discharged."         R.     1:8-10.       A     judge     has

discretion to require further deliberations after a jury has

announced its inability to agree, Figueroa, supra, 190 N.J. at

235, "but exercise of that discretion is not appropriate 'if the

jury has reported a definite deadlock after a reasonable period

of deliberations.'"        State v. Adim, 410 N.J. Super. 410, 423-24

(App.    Div.   2009)   (quoting    Czachor,      supra,    82   N.J.    at     407).

Under those circumstances, a mistrial may be declared which "'is

not a judgment or order in favor of any of the parties' and

'lacks    the   finality   of   a   judgment      and    means   that   the     trial

itself was a nullity.'"         State v. Miller, 382 N.J. Super. 494,

503 (App. Div. 2006) (quoting State v. Cruz, 171 N.J. 419, 426

(2002)); see also State v. Hale, 127 N.J. Super. 407, 412 (App.

Div. 1974).

    In a case involving multiple counts to an indictment, a

trial court may accept a partial verdict "specifying the count

or counts as to which [the jury] has agreed.                      R. 3:19-1(a).

"[T]he defendant . . . may be tried again on the count or counts

as to which it has not agreed."             Ibid.       "[T]rial courts possess

the discretion to accept [partial] verdicts absent a showing of

prejudice to the defendant."          State v. Shomo, 129 N.J. 248, 257

(1992).

            [P]artial verdicts may be warranted, for
            example, when the jury has deliberated at



                                       22                                 A-3363-13T3
              length, when the charges against a defendant
              are rooted in unrelated facts, when the
              court has reason to be concerned that a
              juror may become ill before deliberations
              conclude, when there is risk of taint to the
              jury's decision-making process, or when the
              State has indicated its intention to dismiss
              the unresolved counts.

              [Id. at 257-58.]

    A partial verdict may be considered final when,

              a jury was properly instructed, and when the
              verdict   was   received   in  open   court,
              recorded, and, if requested, confirmed by a
              polling   of  the   jurors.     Under  those
              conditions, an interim partial verdict will
              be subject to impeachment in the same
              limited circumstances that warrant challenge
              of a final verdict rendered at the end of
              jury deliberations.

              [Id. at 259 (emphasis added).]

    We have approved the acceptance of a partial verdict and

the defendant's retrial where, for example, a jury acquitted a

defendant of a greater, charged offense but could not reach a

verdict on the uncharged, lesser-included offense.                       State v.

Ruiz,   399    N.J.   Super.   86,    99    (App.   Div.   2008).        However,

"[b]ecause of the potential compromise to either a defendant's

or government's interests, and the risk of interfering with jury

deliberations,     we   strongly     discourage     routine   use   of    partial

verdicts."      Shomo, supra, 129 N.J. at 257 (emphasis added).

    Before accepting either a complete or partial verdict which

includes counts upon which the jury is "hung" or "deadlocked," a



                                       23                                 A-3363-13T3
court must determine if the deadlock is "intractable."                 Ross,

supra, __ N.J. at __ (slip op. at 15) (quoting Figueroa, supra,

190 N.J. at 237).     If, after considering "such factors as the

length   and   complexity   of   [the]   trial   and   the   quality    and

duration of the jury's deliberations," id. at __ (slip op. at

12) (quoting Czachor, supra, 82 N.J. at 407), the court is not

satisfied that the deadlock is "intractable," the court should

instruct the jury with the modified Allen/Czachor charge and

direct the jury to continue its deliberations.          Id. at __ (slip

op. at 13-15.); Czachor, supra, 82 N.J. at 407.              As the Court

recently noted,

           In    authorizing     continued    deliberations
           following a deadlock and an instruction,
           this Court declined to hold in Czachor,
           supra, that an initial impasse signals the
           end of meaningful deliberations. 82 N.J. at
           404-06     (directing     trial    courts,     in
           appropriate      circumstances,      to    charge
           deadlocked jury to continue deliberations).
           To   the    contrary,    the    Czachor    charge
           instructs jurors to consider the viewpoints
           of other jurors with an open mind. See Model
           Jury      Charge       (Criminal),       "Judge's
           Instructions on Further Jury Deliberations"
           (Jan.    14,    2013).    In    short,    Czachor
           contemplates that a previously deadlocked
           jury    can   conduct    fair    and    effective
           deliberations     notwithstanding    an   earlier
           impasse.

           [Ross, supra, __ N.J. at __ (slip op. at
           28).]




                                   24                             A-3363-13T3
     A declaration of a mistrial is then warranted only when the

jury "signal[s] an intractable divide," id. at __ (slip op. at

15), and the court is satisfied that "the jury has made a good-

faith effort to reach a sustainable verdict" after the court

first    considers      "the      duration     of     the    deliberations         balanced

against    the    length     of    the   trial      and     the   complexity        of   the

proofs."     Dorsainvil, supra, 435 N.J. Super. at 481.

     In this case, the second judge received the partial verdict

in open court and recorded it even though the jury informed the

court,    for    the    first      time,     at     the     outset     of    the    verdict

proceedings, that it had not reached a verdict as to the first

count.     The second judge never made further inquiry as to the

nature of the deadlock, nor did the judge perform the required

analysis to determine whether to proceed to deliver the modified

Allen/Czachor charge.

     Also,       we    are     satisfied       that       there   is    a    substantial

likelihood that the verdict was the result of the second judge's

erroneous    instructions          to    the    jurors       about     the    manner     and

sequence in which they could consider the uncharged, lesser-

included offenses.           See Cooper, supra, 151 N.J. at 366.17                       The



17
  As the Supreme Court explained in Cooper, supra, 151 N.J. at
366 (citations omitted),

                                                                             (continued)


                                           25                                      A-3363-13T3
fact that the verdict sheet correctly advised the jurors that

they could not consider the uncharged, lesser-included offenses

unless    they    reached    a    verdict      of    not   guilty   on   the   greater

charge did not cure the problem.                    "A verdict sheet is intended

for recordation of the jury's verdict and is not designed to

supplement oral jury instructions."                   State v. Gandhi, 201 N.J.

161, 196 (2010).      Therefore, "[a] jury verdict must be guided by

correct    legal     instructions         and       'erroneous      instructions      on

matters material to the juror's deliberations are presumed to be

reversible error.'"          Dorsainvil, supra, 435 N.J. Super. at 480

(quoting State v. Allen, 308 N.J. Super. 421, 431 (App. Div.

1998)).    While, as the first judge correctly noted, the second

judge's instructions addressed the order in which the jury could

consider    the    various       counts   of    the    indictment,18     it    did   not



(continued)
                 Ordinarily, juries may not consider
            lesser-included offenses until they have
            acquitted of the greater offense.         The
            rationale behind the sequential ordering of
            greater and lesser-included offenses is that
            the jury must convict of the crime supported
            by the evidence, as opposed to compromising
            between jurors who want the greater charge
            and jurors who want to acquit.      Thus, if
            jurors are split between the greater charge
            and acquittal, the result is a hung jury.
18
     That instruction contradicted the first judge's original
instruction that the jury should consider the robbery charges
before considering the felony murder charge.



                                          26                                   A-3363-13T3
address the manner the jurors should consider the uncharged,

lesser-included offenses.

    We    are    satisfied   that    the     cumulative   effect   of    1)    the

court's failure to properly instruct the jury about the limited

circumstances in which it would be permitted to consider the

uncharged, lesser-included offenses, 2) its failure to insist on

there being a unanimous not guilty verdict before taking the

verdict    on    the   uncharged,    lesser-included      offenses,      3)    its

failure to review the verdict sheet with the jurors, combined

with 4) the apparent confusion caused by the court's initially

telling the jury to not inform the court if it was deadlocked

should    have   resulted    in   the   court   not   accepting    the    jury's

verdict as final when the court learned the jury was deadlocked.

Rather than proceeding to accept improper, partial verdicts, the

court should have considered the extent of the jury's deadlock

and reinstructed the jury about the proper manner to consider

the uncharged offenses.           It should then have directed them to

continue their deliberations.           We recognize the second judge's

well-intentioned desire to refrain from interfering unduly in

the jury's deliberations.         However, the second judge nonetheless

strayed too far from case law disfavoring partial verdicts in

the judge's deference to the jury.




                                        27                               A-3363-13T3
       Because of these numerous critical errors and omissions,

the jury was allowed to reach verdicts on charges in specific

counts that they should not have even considered had they been

instructed   properly.    The    erroneous   instructions      tainted   the

jury's consideration of all of the unresolved charges, including

felony murder, because, under these circumstances, not only was

defendant's prosecution "improperly terminated," N.J.S.A. 2C:1-

9(d), but there was also a potential that defendant's right to a

unanimous jury verdict was denied, Shomo, supra, 129 N.J. at

258.    To allow a retrial on felony murder in this case would be

a clear miscarriage of justice.

       Affirmed.   Remanded     for   sentencing   and   the   entry   of   a

judgment of conviction.   We do not retain jurisdiction.




                                      28                           A-3363-13T3
