                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                    State v. Rodney J. Miles (A-72-15) (077035)

Argued January 4, 2017 -- Decided May 16, 2017

Timpone, J., writing for a majority of the Court.

         In this appeal, the Court clarifies the methodology to be used in analyzing whether two offenses are the “same
offense” for double jeopardy purposes. Since the 1980s, New Jersey courts have applied both the same-evidence test
and the same-elements test articulated in Blockburger v. United States, 284 U.S. 299 (1932), in double jeopardy
determinations. A finding that offenses met either test resulted in double jeopardy protection for the defendant.

         In October 2010, the Camden County police arrested defendant for selling marijuana to an undercover
police officer. Defendant was charged in a warrant complaint with possession of marijuana with intent to distribute
and possession of a controlled dangerous substance (CDS) with intent to distribute on or within 1000 feet of a school
property. In a separate municipal summons, defendant was charged with the disorderly-persons offense of
possession of fifty grams or less of marijuana. Those charges arose from the same attempted sale.

          A grand jury returned an indictment charging defendant with the offenses in the warrant complaint.
Defendant then appeared pro se in municipal court to resolve the disorderly-persons offense. At some point before
that video proceeding, the original municipal charge was amended to a different disorderly-persons offense—
loitering to possess marijuana. Defendant asked the municipal court judge, “why they got me going to Superior
Court for this, Your Honor?” The judge then responded that defendant was “not going to Superior Court for this,”
but rather for an unrelated child support issue. Defendant then pled guilty to loitering to possess marijuana.

         Thereafter, defendant moved to dismiss the Superior Court indictment on double-jeopardy grounds, arguing
that prosecution on the possession charges was barred because he had already pled guilty to an offense that arose
from the same conduct. The Superior Court denied defendant’s motion to dismiss, reasoning that prosecution on the
indicted charges was not barred because it required proof of an additional element—proximity to a school.
Defendant pled guilty to possession of CDS with intent to distribute within 1000 feet of a school (the school-zone
charge), but preserved his right to appeal the denial of the motion to dismiss.

          On appeal, the Appellate Division remanded for a finding on the circumstances surrounding the amendment
of the disorderly-persons offense. The panel noted that a plea to the original municipal charge, instead of the
amended one, could have led to a different result after applying the double-jeopardy analysis.

        On remand, the Superior Court found no direct evidence as to the circumstances surrounding the
amendment, and the prosecutor represented that his office was not informed of defendant’s municipal court
proceedings. Despite defendant’s expressed confusion during the municipal court plea hearing, the Superior Court
concluded that the school-zone prosecution was not precluded by notions of fundamental fairness.

          Defendant appealed again, arguing that double jeopardy barred prosecution on the school-zone charge. The
Appellate Division agreed, finding that, although the second prosecution was not barred under the same-elements
test, it was barred under the same-evidence test. 443 N.J. Super. 212, 220, 225-27 (App. Div. 2015).

         The Court granted the State’s petition for certification. 225 N.J. 339 (2016).

HELD: New Jersey now joins the majority of jurisdictions in returning to the Blockburger same-elements test as the
sole test for determining what constitutes the “same offense” for purposes of double jeopardy. In the interest of justice,
the Court applied both the same-elements test and the now-replaced same-evidence test in this case; going forward, for
offenses committed after the issuance of this opinion, the same-elements test will serve as the singular framework for
determining whether two charges are the same offense for purposes of double-jeopardy analysis.

                                                          1
1. Here, the municipal court had jurisdiction to resolve defendant’s disorderly-persons charge pursuant to N.J.S.A.
2B:12-17, and failure to join does not automatically bar subsequent prosecution. For judicial efficiency and fairness to
defendants, the Court urges careful coordination between the municipal courts and county prosecutors. (pp. 8-10)

2. The Court has consistently interpreted the State Constitution’s double-jeopardy protection as coextensive with
the guarantee of the federal Constitution. A prime concern when reviewing a double-jeopardy claim is whether the
second prosecution is for the same offense involved in the first. (pp. 10-11)

3. The United States Supreme Court first announced its test for determining whether a second prosecution is for the
same offense in Blockburger, supra, 284 U.S. at 304: If each statute at issue requires proof of an element that the
other does not, they do not constitute the same offense and a second prosecution may proceed. This has come to be
known as the same-elements test. (pp. 11-12)

4. The Court read the language in Illinois v. Vitale, 447 U.S. 410, 421 (1980), as creating an alternative to
Blockburger’s same-elements test—the same-evidence test. The United States Supreme Court reached the same
conclusion in Grady v. Corbin, 495 U.S. 508, 510 (1990), but revised its position in United States v. Dixon, 509
U.S. 688, 704, 708-09 (1993), in which it deemed the same-evidence test unworkable and reinstated the Blockburger
same-elements test as the sole measure of whether two offenses constitute the same offense. (pp. 12-14)

5. Since Dixon, the majority of states have similarly ruled that the Blockburger same-elements test sets forth the
proper test for determining whether two charges are the same offense. Until this case, the Court has not had
occasion to reevaluate double-jeopardy jurisprudence in light of Dixon’s return to the same-elements test. As a
result, appellate panels have split over whether the same-evidence test still applies in New Jersey. (pp. 14-16)

6. The Court now adopts the same-elements test as the sole double-jeopardy analysis, thereby realigning New
Jersey law with federal law. The same-elements test is effortlessly applied at early stages of prosecution; it is
capable of producing uniform, predictable results; and it aids defendants by reducing multiple court appearances.
Rule 3:15-1(b) bars subsequent prosecutions for indictable offenses, and failure by the prosecution to properly join
indictable offenses bars a subsequent prosecution. State v. Williams, 172 N.J. 361, 368 (2002). The Court
recognizes a narrow circumstance where it is possible that neither the same-elements test nor the rule in Williams
would prevent a second prosecution; if those unlikely events unfolded, the second prosecution might well be barred
on joinder or fundamental fairness grounds. As a further safeguard, the Court invites the Supreme Court Committee
on Criminal Practice to review the joinder rule and consider adding non-indictable offenses to it. (pp. 16-21)

7. Because the decision establishes a new rule of law, the Court applies the new singular same-elements standard
prospectively to offenses committed after the date of this opinion. In fairness to defendant, the Court conducts
double-jeopardy analysis using both the same-elements test and the now-removed same-evidence test. Application
of the Blockburger same-elements test would lead to the conclusion that loitering to possess marijuana is not the
same offense as possession within a school zone. Each offense contains at least one element not required to prove
the other. Under the same-evidence test, however, successive prosecution for the school-zone offense is prohibited
because it is based on the same evidence that supported the plea and conviction on the loitering offense. (pp. 21-23)

8. For offenses committed after the issuance of this opinion, the same-elements test will serve as the singular
framework for determining whether two charges are the same offense for double-jeopardy analysis. (p. 23)

        The judgment of the Appellate Division is AFFIRMED. Defendant’s conviction and sentence on the
school-zone offense are vacated.

         JUSTICE ALBIN, DISSENTING, expresses the view that majority’s new rule cannot be squared with the
principles of fairness that previously animated New Jersey’s double-jeopardy jurisprudence. According to Justice
Albin, the majority’s reversion to the same-elements test will allow the State to pursue repeated prosecutions for the
same offense despite an earlier conviction or acquittal.

         CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, and SOLOMON
join in JUSTICE TIMPONE’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which
JUSTICE LaVECCHIA joins.

                                                          2
                                        SUPREME COURT OF NEW JERSEY
                                          A-72 September Term 2015
                                                   077035

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

RODNEY J. MILES (a/k/a JAMAL
D. ALLEN),

    Defendant-Respondent.


         Argued January 4, 2017 – Decided May 16, 2017

         On appeal from and certification to the
         Superior Court, Appellate Division, whose
         opinion is reported at 443 N.J. Super. 212
         (App. Div. 2015).

         Joseph A. Glyn, Deputy Attorney General,
         argued the cause for appellant (Christopher
         S. Porrino, Attorney General of New Jersey,
         attorney).

         Brian P. Keenan, Assistant Deputy Public
         Defender, argued the cause for respondent
         (Joseph E. Krakora, Public Defender,
         attorney).

    JUSTICE TIMPONE delivered the opinion of the Court.

    In this appeal, we clarify the methodology to be used in

analyzing whether two offenses are the “same offense” for double

jeopardy purposes.     Since the 1980s, we have applied both the

same-evidence test and the same-elements test in double jeopardy

determinations.   A finding that offenses met either test

resulted in double jeopardy protection for the defendant.     In

                                  1
contrast, the federal courts and most state jurisdictions apply

only the same-elements test, as articulated by the United States

Supreme Court in Blockburger v. United States, 284 U.S. 299, 52

S. Ct. 180, 76 L. Ed. 306 (1932).

     We now join the majority of jurisdictions in returning to

the Blockburger same-elements test as the sole test for

determining what constitutes the “same offense” for purposes of

double jeopardy.   Here, because we are changing course, we

examine the facts through the additional lens of the now-

replaced same-evidence test as a matter of fairness to defendant

Rodney Miles.

                                I.

     In October 2010, the Camden County police arrested

defendant for selling marijuana to an undercover police officer

on the corner of 27th and Washington Streets in Camden, New

Jersey.   Defendant was charged in a warrant complaint with

possession of marijuana with intent to distribute, in violation

of N.J.S.A. 2C:35-5(b)(12), and possession of a controlled

dangerous substance (CDS) with intent to distribute on or within

1000 feet of a school property, in violation of N.J.S.A. 2C:35-

7.   In a separate municipal summons, defendant was charged with

the disorderly-persons offense of possession of fifty grams or

less of marijuana, in violation of N.J.S.A. 2C:35-10(a)(4).

Those charges arose from the same attempted sale.

                                 2
    A Camden County grand jury returned an indictment charging

defendant with the offenses in the warrant complaint.     Defendant

then appeared pro se in municipal court to resolve the

disorderly-persons offense charged in the municipal summons.

Defendant appeared via video conference from the county jail,

where he was being held on an unrelated child-support charge.

At some point before that video proceeding, the original

municipal charge was amended to a different disorderly-persons

offense -- loitering to possess marijuana, in violation of

N.J.S.A. 2C:33-2.1(b)(1).     Confusion ensued as evidenced by the

following colloquy between the judge and defendant at the

municipal court proceeding:

         Q. All right. You’re charged on October 15,
         2010, with loitering to possess marijuana at
         27th and Washington Street in Camden.

         A. Yes, sir.

         Q. Do you wish to have an attorney in this
         matter?

         A. No, sir. What -- they got me -- can I ask
         you something?   This is a municipal charge,
         right, Your Honor?

         Q. Yes.

         A. Well, why they got me going to Superior
         Court for this, Your Honor? That’s why I said
         I don’t understand.

         Q. No, no, you’re not going to Superior Court
         for this. You’re going to Superior Court for
         child support, sir.


                                  3
          A. No, no, no, they had me --

          Q. Sir.

          A. Okay.

          Q. Trust me.    I am not going to argue with
          you.

          A. No, I’m not arguing.

          Q. I’m not going to argue with you.

          A. Oh, okay.

          Q. You’re charged with loitering to possess
          marijuana in Camden, October 15, 2010. It’ll
          be a $500 fine plus mandatory costs. Do you
          understand the penalties?

          A. Yes, sir.

Defendant then pled guilty to the charge of loitering to possess

marijuana.

    Thereafter, defendant moved to dismiss the Superior Court

indictment on double-jeopardy grounds, arguing that prosecution

on the possession charges was barred because he had already pled

guilty to an offense that arose from the same conduct.   Despite

some puzzlement as to why the municipal court had amended the

disorderly-persons offense, the Superior Court denied

defendant’s motion to dismiss.   The Superior Court reasoned that

prosecution on the indicted charges was not barred because it

required proof of an additional element -- proximity to a

school.   Defendant pled guilty to possession of CDS with intent

to distribute within 1000 feet of a school (the school-zone

                                 4
charge), but preserved his right to appeal the denial of the

motion to dismiss.

    On appeal, the Appellate Division remanded for a finding on

the circumstances surrounding the amendment on the disorderly-

persons offense, specifically focusing on whether the prosecutor

was involved in amending the charge.   The panel noted that a

plea to the original municipal charge, instead of the amended

one, could have led to a different result after applying the

double-jeopardy analysis.

    On remand, the Superior Court found no direct evidence as

to the circumstances surrounding the amendment, but learned that

it was typical in municipal court to amend charges where

appropriate to help defendants avoid more serious penalties and

fines.   During the remand hearing, the prosecutor represented

that his office was not informed of defendant’s municipal court

proceedings.   The court, having determined that the prosecutor

played no role in the amendment of the municipal court charge,

found nothing atypical in the amendment process.

    Despite defendant’s expressed confusion during the

municipal court plea hearing, the Superior Court found him to be

“fully cognizant” of the pending Superior Court prosecution

because he previously appeared in that court on four separate

occasions for pretrial conferences on the indicted charges.      The



                                 5
court concluded that the school-zone prosecution was not

precluded by notions of fundamental fairness.

    Defendant appealed again, arguing that because the remand

hearing revealed no definitive information on the circumstances

of the amendment, the municipal court had jurisdiction over the

disorderly-persons offense and, as a result, double jeopardy

barred prosecution on the school-zone charge.    The Appellate

Division agreed.    State v. Miles, 443 N.J. Super. 212, 220, 227

(App. Div. 2015).    The panel recognized, however, that the

Appellate Division was divided as to how to determine whether

two offenses are the same offense for double-jeopardy purposes.

Id. at 226-27.   It explained that some panels have adhered to

current New Jersey law, under which subsequent prosecutions are

barred under either of two tests -- the same-elements test or

the same-evidence test -- and other panels have adopted the

United States Supreme Court’s exclusive use of the same-elements

test.   Ibid.   Having analyzed the facts under both tests, the

Appellate Division found that, although the second prosecution

was not barred under the same-elements test, it was barred under

the same-evidence test.    Id. at 225-27.

    The State filed a petition for certification, which we

granted.   225 N.J. 339 (2016).

                                  II.



                                  6
    The State’s arguments are threefold:      (1) the municipal

court lacked jurisdiction to unilaterally adjudicate defendant’s

disorderly-persons offense after the grand jury returned the

indictment on the other charges; (2) the municipal court’s

action was beyond its jurisdiction and is thus a legal nullity

which may not serve as the basis for defendant’s double jeopardy

claim; and (3) in the alternative, if the municipal court is

found to have had jurisdiction, the State urges this Court to

eliminate the same-evidence test.     Under the same-elements test

then, the State advocates that the school-zone prosecution is

not barred by double jeopardy because both statutes at issue

require proof of an element that the other does not.

    Defendant, in turn, contends that: (1) the municipal court

had statutory jurisdiction over the disorderly-persons offense,

thereby validating his claim that the school-zone prosecution

constituted double jeopardy; and (2) even under a flexible

application of the same-elements test, it is clear that the

loitering offense does not require any more proof than the

school-zone offense.

                               III.

    Because the issue presented is purely a question of law, we

review this case de novo.   Manalapan Realty, L.P. v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995).     When an appellate court

reviews a trial court’s analysis of a legal issue, it does not

                                7
owe any special deference to the trial court’s legal

interpretation.   Ibid.   “When a question of law is at stake, the

appellate court must apply the law as it understands it.”      State

v. Mann, 203 N.J. 328, 337 (2010).

                                IV.

    The threshold issue in this case is whether the municipal

court had jurisdiction to resolve the disorderly-persons

offense.   Without jurisdiction, its adjudication of the

disorderly-persons offense is a “legal nullity” and may not

serve as the basis for defendant’s double-jeopardy claim.      See

State v. Le Jambre, 42 N.J. 315, 319 (1964).    If it is a legal

nullity, the State’s prosecution of the school-zone charge would

automatically be permitted, and there would be no need to reach

the double-jeopardy issue.   If the municipal court did have

jurisdiction over the disorderly-persons offense, however,

prosecution on the school-zone offense would be permitted only

if it would not place defendant in double jeopardy.

    Municipal courts have limited jurisdiction over criminal

cases; they may only conduct proceedings in a criminal case

before indictment.   N.J.S.A. 2B:12-19(a).   Once an indictment is

returned, “[a] municipal court shall not discharge a person

charged with an indictable offense without first giving the

county prosecutor notice and an opportunity to be heard.”

N.J.S.A. 2B:12-19(b).

                                 8
    On the other hand, municipal courts have unlimited

jurisdiction over disorderly-persons offenses, N.J.S.A. 2B:12-

17(c), which “are not crimes within the meaning of the

Constitution of this State,” N.J.S.A. 2C:1-4(b).        Rule 7.1

delineates the scope of municipal court jurisdiction.        That rule

also provides that disorderly-persons offenses are within the

statutory jurisdiction of municipal courts.

    Rule 3:15-3(a)(1), a companion rule to Rule 7.1, directs

municipal courts to “join any pending non-indictable complaint

for trial with a criminal offense based on the same conduct or

arising from the same episode.”        Subsection (c) of that rule,

however, explicitly provides that failure to join does not bar a

subsequent prosecution on an indictable offense, unless that

prosecution is barred by constitutional protections, such as

double jeopardy.   R. 3:15-3(c).       Nothing in the rule dictates

that failure to join when joinder is appropriate strips a

municipal court of its statutorily granted authority over

disorderly-persons offenses.

    Here, defendant was charged in municipal court with a

disorderly-persons offense, not with a criminal offense.

N.J.S.A. 2B:12-19’s requirements therefore do not apply in the

present case.   The municipal court had jurisdiction to resolve

defendant’s disorderly-persons charge pursuant to N.J.S.A.

2B:12-17.   Because Rule 3:15-3(c) limits the consequences for a

                                   9
municipal court’s failure to join non-indictable offenses,

moreover, failure to join does not automatically bar subsequent

prosecution on the indictable offense so long as double-jeopardy

concerns are allayed.

    For judicial efficiency and fairness to defendants, we urge

careful coordination between the municipal courts and county

prosecutors.    There will always be outlier situations when

unintentional events get the better of the system.     Here,

confusion bred more confusion, causing a failure to join the

municipal charge with the indictable offenses.     Nevertheless, we

have said before that a “breakdown in communications between

state and municipal officials forms no justification for

depriving an accused person of his right to plead double

jeopardy.”     State v. Dively, 92 N.J. 573, 589 (1983) (quoting

Robinson v. Neil, 366 F. Supp. 924, 929 (E.D. Tenn. 1973)).

    Having determined that the municipal court had

jurisdiction, we next review whether the subsequent prosecution

on the school-zone charge placed defendant in double jeopardy.

                                  V.

                                  A.

     The Double Jeopardy Clause of the Fifth Amendment provides

that no person shall “be subject for the same offense to be

twice put in jeopardy of life or limb.”     U.S. Const. amend. V.

The New Jersey Constitution contains a similar provision:      “No

                                  10
person shall, after acquittal, be tried for the same offense.”

N.J. Const. art. I, ¶ 11.     This Court has consistently

interpreted the State Constitution’s double-jeopardy protection

as coextensive with the guarantee of the federal Constitution.

State v. Schubert, 212 N.J. 295, 304 (2012); Dively, supra, 92

N.J. at 578; State v. Barnes, 84 N.J. 362, 370 (1980).

    The Double Jeopardy Clause contains three protections for

defendants.    It protects against (1) “a second prosecution for

the same offense after acquittal,” (2)“a second prosecution for

the same offense after conviction,” and (3) “multiple

punishments for the same offense.”     North Carolina v. Pearce,

395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-

65 (1969).     Common to all three protections is the concept of

“same offense.”    Accordingly, a prime concern when reviewing a

double-jeopardy claim is “whether the second prosecution is for

the same offense involved in the first.”     State v. Yoskowitz,

116 N.J. 679, 689 (1989) (quoting State v. De Luca, 108 N.J. 98,

102, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d

358 (1987)).

    The United States Supreme Court first announced its test

for determining whether a second prosecution is for the same

offense in Blockburger, supra, 284 U.S. at 304, 52 S. Ct. at

182, 76 L. Ed. at 309.     The Court stated that “where the same

act or transaction constitutes a violation of two distinct

                                  11
statutory provisions, the test to be applied to determine

whether there are two offenses or only one, is whether each

provision requires proof of a fact which the other does not.”

Ibid.   In other words, if each statute at issue requires proof

of an element that the other does not, they do not constitute

the same offense and a second prosecution may proceed.     Ibid.

This test has come to be known as the same-elements test.

    The Blockburger same-elements test was the exclusive test

for same-offense determinations until the United States Supreme

Court decided Illinois v. Vitale, 447 U.S. 410, 421, 100 S. Ct.

2260, 2267, 65 L. Ed. 2d 228, 238 (1980).     There, the United

States Supreme Court indicated that facts could possibly require

more than a mechanical analysis of the elements of the two

statutes.    Ibid.   The United States Supreme Court contemplated

that a second prosecution could be barred if it relied on the

same evidence used to prove an earlier charge.     Ibid.   This

language “created controversy among state and federal courts

over whether the traditional Blockburger test ha[d] been

expanded.”   Yoskowitz, supra, 116 N.J. at 690.

    This Court read the language in Vitale as creating an

alternative to Blockburger’s same-elements test -- the same-

evidence test.   See De Luca, supra, 108 N.J. at 107; Dively,

supra, 92 N.J. at 581-83.    The United States Supreme Court

reached the same conclusion a few years later and officially

                                  12
adopted the suggestion it set forth in Vitale.    Grady v. Corbin,

495 U.S. 508, 510, 110 S. Ct. 2084, 2087, 109 L. Ed. 2d 548, 557

(1990).

       Soon thereafter, the United States Supreme Court

reevaluated and revised its position, holding that the same-

evidence test was “wholly inconsistent with earlier Supreme

Court precedent and with the clear common-law understanding of

double jeopardy.”    United States v. Dixon, 509 U.S. 688, 704,

113 S. Ct. 2849, 2860, 125 L. Ed. 2d 556, 573 (1993).     Deeming

the same-evidence test unworkable, the Court reinstated the

Blockburger same-elements test as the sole measure of whether

two offenses constitute the same offense for double jeopardy

purposes.   Id. at 708-09, 113 S. Ct. at 2864, 125 L. Ed. 2d at

577.    The Court specifically rejected its dicta in Vitale, which

suggested a same-evidence test, stating “[n]o Justice, the

Vitale dissenters included, has ever construed this passage as

answering, rather than simply raising, the question on which we

later granted certiorari in Grady.”    Id. at 707, 113 S. Ct. at

2862, 125 L. Ed. 2d at 575.

       It took a mere three years for the United States Supreme

Court to steer away from the same-evidence test; it quickly

found that the test would be unworkable without crafting a

number of exceptions to supplement it.    See United States v.

Felix, 503 U.S. 378, 389-91, 112 S. Ct. 1377, 1384-85, 118 L.

                                 13
Ed. 2d 25, 36-37 (1992) (creating exception for conspiracy under

which prior prosecution for substantive offense would not

preclude prosecution for conspiracy to commit that offense).

Fearing the necessity of more exceptions further denuding the

same-evidence test, the Dixon Court eliminated it altogether in

favor of the same-elements test.    Dixon, supra, 509 U.S. at 710,

113 S. Ct. at 2863, 125 L. Ed. 2d at 577.

    Since Dixon, the majority of states have similarly ruled

that the Blockburger same-elements test sets forth the proper

test for determining whether two charges are the same offense.

See, e.g., State v. Leighton, 645 So. 2d 354, 355 (Ala. Crim.

App. 1994); State v. Sanders, 68 P.3d 434, 448 (Ariz. Ct. App.);

Hughes v. State, 66 S.W.3d 645, 652 (Ark. 2002); People v.

Allen, 868 P.2d 379, 380 (Colo. 1994); State v. Alvarez, 778

A.2d 938, 945-46 (Conn. 2001), cert. denied, 534 U.S. 1138, 122

S. Ct. 1086, 151 L. Ed. 2d 985 (2002); Forrest v. State, 721

A.2d 1271, 1278 (Del. 1999); Tyree v. United States, 629 A.2d

20, 21-22 (D.C. 1993); Dodd v. State, 522 S.E.2d 538, 539-40

(Ga. Ct. App. 1999); Kelso v. State, 961 So. 2d 277, 281-82

(Fla. 2007); People v. Sienkiewicz, 802 N.E.2d 767, 770-71 (Ill.

2003); State v. Sharkey, 574 N.W.2d 6, 8 (Iowa 1997); State v.

Schoonover, 133 P.3d 48, 62 (Kan. 2006); Commonwealth v. Burge,

947 S.W.2d 805, 811 (Ky. 1996); In re Michael W., 768 A.2d 684,

690 (Md. 2001); People v. Ream, 750 N.W.2d 536, 544 (Mich.

                               14
2008); Powell v. State, 806 So. 2d 1069, 1074 (Miss. 2001);

People v. Latham, 631 N.E.2d 83, 85 (N.Y. 1994); State v.

Winkler, 663 N.W.2d 102, 108 (Neb. 2003); State v. Rodriguez,

116 P.3d 92, 101 (N.M. 2005); State v. Zima, 806 N.E.2d 542, 548

(Ohio 2004); Commonwealth v. Caufman, 662 A.2d 1050, 1052 (Pa.

1995); State v. Easler, 489 S.E.2d 617, 623 (S.C. 1997); Flores

v. Texas, 906 S.W.2d 133 (Tex. 1995); Coleman v. Commonwealth,

539 S.E.2d 732, 733-35 (Va. 2001); State v. Gocken, 896 P.2d

1267, 1270-73 (Wash. 1995); State v. Kurzawa, 509 N.W.2d 712,

720 (Wis.), cert. denied, 512 U.S. 1222, 114 S. Ct. 2712, 129 L.

Ed. 2d 839 (1994); Sweets v. State, 307 P.3d 860, 875 (Wyo.

2013).

    Until this case, we have not had occasion to reevaluate our

double-jeopardy jurisprudence in light of Dixon’s return to the

same-elements test.   As a result, appellate panels have split

over whether the same-evidence test still applies in New Jersey.

Compare State v. Colon, 374 N.J. Super. 199, 216 (App. Div.

2005) (declining to find, in absence of instruction from this

Court, that same-evidence test was no longer applicable); State

v. Capak, 271 N.J. Super. 397, 402-04 (App. Div.) (recognizing

Dixon’s holding, but deciding to apply same-evidence test until

this Court holds otherwise), certif. denied, 137 N.J. 164

(1994), with State v. Kelly, 406 N.J. Super. 332, 350 (App. Div.

2009) (rejecting defendant’s same-evidence arguments based on

                                15
Grady, which was overruled by Dixon), aff’d on other grounds,

201 N.J. 471 (2010); State v. Ellis, 280 N.J. Super. 533, 550

(App. Div. 1995) (refusing to apply same-evidence test overruled

by Dixon).

                                 B.

       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.

We no longer recognize the same-evidence test as a measure of

whether two offenses constitute the same offense.

       In reaching our conclusion, we are guided by the conundrums

created by the same-evidence test as they played out before the

United States Supreme Court.    Rather than grafting exception

upon exception onto a test that would eventually fall under its

own weight, we embrace the same-elements test in its stead.      The

same-elements test analyzes the elements of the competing

statutes to determine if each contains an element the other does

not.   If each statute contains at least one unique element, the

subsequent prosecution may proceed.

       The benefits of the same-elements test are noteworthy:    the

test is effortlessly applied at early stages of prosecution; it

is capable of producing uniform, predictable results; and it

aids defendants by reducing multiple court appearances.     By

contrast, under the same-evidence test, a court cannot determine

                                 16
whether two charges constitute the same offense until later in

the process, after the State has proffered the evidence used to

support each claim.   “[S]urely such a procedure is inconsistent

with the Double Jeopardy Clause, which was specifically designed

to protect the citizen from multiple trials.”   Vitale, supra,

447 U.S. at 426, 100 S. Ct. at 2270, 65 L. Ed. 2d at 242

(Stevens, J., dissenting).

    Further, adoption of this test corrects our reliance on the

now-repudiated dicta in Vitale in support of our addition of the

same-evidence test to our double-jeopardy framework.    See

Dively, supra, 92 N.J. at 581.

    Finally, protections abound for defendants, enshrined in

our Constitution, court rules, and statutes.    See, e.g.,

N.J.S.A. 2C 1-8 (limiting prosecutions, trials, and convictions

when a defendant’s conduct constitutes more than one offense);

N.J.S.A. 2C:1-10(a)(1) (barring subsequent prosecution for a

violation of a different statutory provision, where the former

prosecution resulted in an acquittal and the subsequent

prosecution is for an offense for which defendant could have

been convicted on the first prosecution).   For example, Court

Rule 3:15-1(b) states that,

         [e]xcept as provided by R. 3:15-2(b), 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

                                 17
          appropriate prosecuting officer at the time of
          the commencement of the first trial and are
          within the jurisdiction and venue of a single
          court.

This Court has long held that “[i]f the offenses are not joined

[under that rule], the omitted offense may not be further

prosecuted.”     State v. Williams, 172 N.J. 361, 368 (2002)

(citing State v. Gregory, 66 N.J. 510, 522-23 (1975)).     That

rule bars subsequent prosecutions for indictable offenses.

Nothing in this opinion changes that joinder requirement.

    Rule 3:15-1(b) is titled “Trial of Indictments or

Accusations Together.”     It commands that every crime -- an

offense defined by the criminal code or by any other statute of

this State for which a sentence of imprisonment in excess of six

months is authorized, N.J.S.A. 2C:1-4 -- known to the prosecutor

at the time of the commencement of the first trial must be

joined.   As noted above, this Court has underscored that failure

by the prosecution to properly join indictable offenses bars a

subsequent prosecution.     Williams, supra, 172 N.J. at 368.   In

contrast, Rule 3:15-3 is titled “Trial of Criminal Offenses and

Lesser, Related Infractions.”    Those two rules have different

titles and address different subject matter, and there is no

indication from the text of the rules that they can, or must, be

read together.




                                  18
    We recognize a narrow circumstance where it is possible

that neither the same-elements test nor the rule in Williams

would prevent a second prosecution:    where a defendant is

acquitted in Superior Court and the prosecution then files

disorderly persons charges in municipal court relating to

essentially the same conduct.   Because Williams only bars a

subsequent prosecution on another indictable offense and

disorderly persons offenses are not indictable, the second

prosecution might not be barred.     As the State noted at oral

argument, these situations are admittedly rare, because the

State has little incentive to pursue a disorderly persons

offense after acquittal on an indictable offense predicated on

the same facts.   The dissent nonetheless conjures up one

hypothetical after another, which simply do not reflect reality.

If those unlikely events unfolded, however, the second

prosecution might well be barred on joinder or fundamental

fairness grounds.   See State v. Saavedra, 222 N.J. 39, 67-68

(2015).   As a further safeguard, we invite the Supreme Court

Committee on Criminal Practice to review the joinder rule and

consider adding non-indictable offenses to it.

    What the dissent mistakes for efficiency is actually

certainty.   A defendant’s interest in avoiding a second

prosecution should not be in jeopardy solely based on the

ability of the defense or State to characterize evidence as

                                19
necessary for a conviction.     The same-evidence test’s reliance

on a case-by-case approach creates the potential for wildly

different results in cases with similar facts.     While efficiency

is certainly a by-product of today’s decision, the same-elements

test provides equal protection to defendants who are similarly

situated by combatting uncertainty in results.

    We acknowledge that no double-jeopardy test will cover the

entire spectrum of possible situations to come before this

Court.   The same-elements test is not a cure-all.    It becomes

part of the fabric of our double-jeopardy protections, joined

with the Due Process Clause and Sixth Amendment Jury Trial

clause, creating a fulsome array of safeguards for criminal

defendants.   See Akhil Reed Amar, Double Jeopardy Law Made

Simple, 106 Yale L.J. 1807, 1809 (1997) (“[T]he [United States

Supreme] Court has tied itself into knots because it has failed

to carefully disentangle the Double Jeopardy, Due Process, and

Jury Trial Clauses.   As a result, some defendants today are

getting windfalls -- needless and dangerous ‘get out of jail

free’ cards -- while other defendants are getting less than they

constitutionally deserve.”).

    Given those factors, we see no reason to deviate from the

well-established tradition of keeping our double-jeopardy law

coextensive with federal law.    Here, we are faced with the

difficult task of choosing among competing precedents:     our line

                                  20
of cases holding that our double jeopardy case law is

coextensive with the federal law or our cases supporting the

same-evidence test.   Because we believe there is good cause and

a special justification to do so, see State v. Witt, 223 N.J.

409, 415 (2015), we remove the same-evidence test from future

consideration in resolving double jeopardy questions.

    Because our decision establishes a new rule of law, we

apply the new singular same-elements standard prospectively to

offenses committed after the date of this opinion.   See, e.g.,

Witt, supra, 223 N.J. at 450.   Here, in fairness to defendant,

we conduct our double-jeopardy analysis using both the same-

elements test and the now-removed same-evidence test because

that was the legal landscape at the time he was charged.     We now

apply those principles to determine whether prosecution on

defendant’s school-zone charge violated double jeopardy.

                                VI.

    The facts of this case implicate two of the three

protections of the Double Jeopardy Clause:   protection against a

second prosecution after conviction and protection against

multiple punishments for the same offense.   The two offenses at

issue are loitering to possess marijuana, N.J.S.A. 2C:33-2.1(b),

and possession with the intent to distribute within a school-

zone, N.J.S.A. 2C:35-7(a).   The loitering statute provides that

a person commits a disorderly-persons offense if:

                                21
          (1) he wanders, remains or prowls in a public
          place with the purpose of unlawfully obtaining
          or   distributing   a   controlled   dangerous
          substance . . . and (2) engages in conduct
          that . . . manifests a purpose to obtain or
          distribute a controlled dangerous substance or
          controlled dangerous substance analog.

          [N.J.S.A. 2C:33-2.1(b).]

     In comparison, a violation of the school-zone statute

occurs when a person “distribut[es], dispens[es] or possess[es]

with intent to distribute a controlled dangerous substance . . .

while on any school property used for school purposes . . . or

within 1,000 feet of such school property.”   N.J.S.A. 2C:35-

7(a).

     Application of the Blockburger same-elements test to the

two statutes would lead us to conclude that loitering to possess

marijuana is not the same offense as possession within a school

zone.   Loitering requires proof that defendant’s conduct

occurred in a public place, an element not required for proof of

the school-zone offense.   The school-zone offense, on the other

hand, requires proof of purpose to distribute and possession

within 1000 feet of a school zone -- two elements not required

for the proof of loitering.   Thus, each offense contains at

least one element not required to prove the other.

     Under the same-evidence test, however, we find that

defendant’s successive prosecution for the school-zone offense

is prohibited because it is based on the same evidence that

                                22
supported the plea and conviction on the loitering offense.     The

evidence necessary to support defendant’s loitering charge was

his presence at 27th and Washington Streets, a public street

corner, where he intended to distribute marijuana.   Similarly,

the evidence of the school-zone charge was defendant’s location

at 27th and Washington Streets -- within 1000 feet of a school

building -- where he possessed marijuana with the intent to

distribute it.   Clearly, the State relied on the same evidence

to obtain defendant’s conviction on the school-zone charge that

was used as the basis for defendant’s plea on the loitering

charge.   Accordingly, the two charges constitute the same

offense under the same-evidence test, and the school-zone

prosecution was improper.   We therefore affirm the judgment of

the Appellate Division barring defendant’s second prosecution as

a violation of the double jeopardy clause.

    In the interest of justice, we applied both analyses here;

going forward, for offenses committed after the issuance of this

opinion, we hold that the same-elements test will serve as the

singular framework for determining whether two charges are in

fact the same offense for purposes of double-jeopardy analysis.

                               VII.

    The judgment of the Appellate Division is affirmed.

Defendant’s conviction and sentence on the school-zone offense

are vacated.

                                23
     CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion. JUSTICE
ALBIN filed a separate, dissenting opinion in which JUSTICE
LaVECCHIA joins.




                              24
                                       SUPREME COURT OF NEW JERSEY
                                         A-72 September Term 2015
                                                  077035

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

RODNEY J. MILES (a/k/a JAMAL
D. ALLEN),

    Defendant-Respondent.

    JUSTICE ALBIN dissenting.

    More than forty years ago in State v. Gregory, this Court

exercised its broad administrative power under the New Jersey

Constitution to provide greater double-jeopardy protection to

the people of New Jersey than afforded by the United States

Constitution.   66 N.J. 510, 518-19, 522 (1975).   We rejected the

United States Supreme Court’s same-elements test for determining

whether successive indictable prosecutions are barred for

double-jeopardy purposes and, instead, adopted a rule that

barred such prosecutions based on the same conduct.   Id. at 522;

see also R. 3:15-1(b); State v. Williams, 172 N.J. 361, 368

(2002); State v. Yoskowitz, 116 N.J. 679, 699-704 (1989).

    Later, we construed our State Constitution’s Double

Jeopardy Clause to incorporate the same-evidence test -- an

alter ego of the same-conduct test -- to bar successive

prosecutions involving non-indictable offenses, see State v.

                                 1
De Luca, 108 N.J. 98, cert. denied, 484 U.S. 944, 108 S. Ct.

331, 98 L. Ed. 2d 358 (1987); State v. Dively, 92 N.J. 573

(1983), and we adopted a court rule requiring the joinder of

non-indictable offenses with indictable offenses arising from

the same conduct, R. 3:15-3.   Our case law makes clear that we

have embraced the same-conduct test through our constitutional

rulemaking authority, see Williams, supra, 172 N.J. at 367-68,

and through our State Constitution’s Double Jeopardy Clause, see

De Luca, supra, 108 N.J. at 107-08.    We also have determined

that notions of fundamental fairness may bar successive

prosecutions based on the same conduct.    See Yoskowitz, supra,

116 N.J. at 704-09.

    Today, the majority reverses course and constricts the

interpretation of our State Constitution’s Double Jeopardy

Clause to bar successive prosecutions based solely on the same-

elements test, thus aligning itself with the federal double-

jeopardy standard, which has proven to be inconstant.     This move

is at complete odds with the architecture of our joinder rules

and double-jeopardy jurisprudence.    Despite today’s decision,

our court rules requiring the joinder of all offenses arising

from the same conduct remain intact, and we have already

determined that the failure to join indictable offenses arising

from the same conduct, as required by Rule 3:15-1(b), will

result in the dismissal of a second prosecution.    Williams,

                                2
supra, 172 N.J. at 368.

    The immediate impact of the majority’s decision is that our

citizens will no longer have enhanced double-jeopardy protection

for non-indictable offenses.     In such cases, only the same-

elements test, not the same-conduct test, will bar successive

prosecutions.

    Thus, if a defendant is acquitted of possession with intent

to distribute drugs, he cannot afterwards be prosecuted for the

disorderly persons offense of possession because both offenses

share the same elements.     However, if as occurred here, the

possession charge is amended to the disorderly persons offense

of loitering to possess or distribute drugs, the second

prosecution can proceed because the possession-with-intent-to-

distribute and drug loitering charges do not share the same

elements.   According to the majority, the second prosecution is

not barred even though the defendant possessed the same drugs,

on the same street corner, at the same time.

    The majority concedes that this result might well be

fundamentally unfair.     There is no sound reason to alter a

workable constitutional doctrine to one that could lead to

unjust outcomes and that would require the remedy of the

fundamental-fairness doctrine.    Notably, the majority makes

clear that fundamental fairness is not offended if the defendant

is acquitted of disorderly drug loitering and then prosecuted

                                   3
for an indictable offense of possession arising from the same

conduct.

    Additionally, under the majority’s new double-jeopardy

paradigm, the State can prosecute an accused for the disorderly

persons offenses of possession of drugs, possession of drug

paraphernalia, and loitering to obtain drugs, all arising from

the same conduct, in three separate trials because the three

offenses do not share the same elements.   This scenario too the

majority does not consider to be fundamentally unfair.

Countless similar fact patterns can be conjured under the

majority’s new rule.   Until today, such multiple prosecutions

would have been barred under our state-law double-jeopardy

jurisprudence.

    Under the regressive approach adopted by the majority, the

State will be the ultimate beneficiary, and the accused will pay

the price for the State’s failure to join non-indictable

offenses.   That approach cannot be squared with the principles

of fairness that previously animated our double-jeopardy

jurisprudence.   For those reasons, I respectfully dissent.

                                I.

    The double-jeopardy guarantees of our Federal and State

Constitutions protect an accused from multiple prosecutions and




                                 4
multiple punishments for the same offense.1   See North Carolina

v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d

656, 664-65 (1969), overruled on other grounds by Alabama v.

Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989);

De Luca, supra, 108 N.J. at 102.    The animating principle

underlying the Double Jeopardy Clause is that

          the State with all its resources and power
          should not be allowed to make repeated
          attempts to convict an individual for an
          alleged offense, thereby subjecting him to
          embarrassment,   expense   and   ordeal  and
          compelling him to live in a continuing state
          of anxiety and insecurity, as well as
          enhancing the possibility that even though
          innocent he may be found guilty.

          [Green v. United States, 355 U.S. 184, 187-
          88, 78 S. Ct. 221, 223, 2 L. Ed. 2d 199, 204
          (1957).]

The heart of the double-jeopardy issue before us is whether the

offense for which defendant was convicted in the first

prosecution is the “same offense” for which he was tried in the

second prosecution.   See De Luca, supra, 108 N.J. at 102.

     The same-elements test -- first adopted by the United

States Supreme Court in Blockburger v. United States, 284 U.S.

299, 52 S. Ct. 180, 76 L. Ed. 306 (1932) -- was the long-




1 The Federal and State Double Jeopardy Clauses provide, no
person shall “be subject for the same offence to be twice put in
jeopardy of life or limb,” U.S. Const. amend. V, and “[n]o
person shall, after acquittal, be tried for the same offense,”
N.J. Const. art. I, ¶ 11.
                                5
prevailing standard for determining whether a subsequent

prosecution was for the “same offense” as in a prior

prosecution.   See Kirstin Pace, Fifth Amendment -- The Adoption

of the “Same Elements” Test:   The Supreme Court’s Failure to

Adequately Protect Defendants from Double Jeopardy, 84 J. Crim.

L. & Criminology 769, 772 (1994).    Over time, however, the

rigidity of that standard came into question.    Id. at 772-75.

     In 1970, the United States Supreme Court invoked collateral

estoppel to bar a subsequent prosecution for the same offense,

electing not to apply the Blockburger same-elements test.2     Ashe

v. Swenson, 397 U.S. 436, 443-47, 90 S. Ct. 1189, 1194-96, 25 L.

Ed. 2d 469, 475-77 (1970).   Justice Brennan, while concurring

with the application of collateral estoppel, opined that “same

offense” in the Double Jeopardy Clause should be “construed to

[mean] the ‘same transaction’” -- all the events “grow[ing] out

of a single criminal act, occurrence, episode, or transaction.”

Id. at 453-54, 460, 90 S. Ct. at 1199, 1202, 25 L. Ed. 2d at

481, 484 (Brennan, J., concurring).




2 Ashe v. Swenson involved the robbery of six players in a poker
game. 397 U.S. 436, 437, 90 S. Ct. 1189, 1191, 25 L. Ed. 2d
469, 472 (1970). The defendant was prosecuted for the robbery
of one of the players and acquitted, apparently, based on his
alibi defense. Id. at 438-39, 90 S. Ct. at 1191-92, 25 L. Ed.
2d at 472-73. The United States Supreme Court barred a second
prosecution for the robbery of another poker player based on
principles of collateral estoppel. Id. at 445-47, 90 S. Ct. at
1195-96, 25 L. Ed. 2d at 467-77.
                                 6
    Following Justice Brennan’s lead, we rejected the

Blockburger standard in 1975 in favor of the “same transaction”

or “same conduct” test.     See Gregory, supra, 66 N.J. at 518-19.

In so doing, we utilized the “broad administrative and

procedural powers vested in us by our State Constitution” in

Article VI, Section II, Paragraph 3, rather than turn to the

Double Jeopardy Clause of Article I, Paragraph 11.    Id. at 518.

    Gregory involved the sale of a single glassine envelope of

heroin to an undercover police officer by the defendant while in

his apartment.   Id. at 511.   The defendant had retrieved the

heroin envelope from a stash of similar envelopes in his

bathroom’s medicine cabinet.    Ibid.   The State first prosecuted

and convicted the defendant of the heroin sale and later

charged, prosecuted, and convicted him of possession and

possession with intent to distribute the heroin in his medicine

cabinet.   Id. at 511-12.

    Relying on Justice Brennan’s concurrence in Ashe v.

Swenson, section 1.07(2) of the Model Penal Code, notions of

fairness, and the defendant’s reasonable expectations, we

reversed the drug-possession convictions, concluding that “a

defendant shall not be subject to separate trials for multiple

offenses ‘based on the same conduct or arising from the same

criminal episode.’”   Id. at 518-19, 522.

    Two years after Gregory, we adopted a mandatory joinder

                                  7
rule, which now reads:

         [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.3

         [R. 3:15-1(b) (1977) (amended 1987) (emphasis
         added).]

The operative language in the Rule is identical to the language

in N.J.S.A. 2C:1-8(b) of the Code of Criminal Justice entitled

“Limitation on separate trials for multiple offenses.”     This

Court has made clear that it will bar the successive prosecution

of indictable offenses arising from the same conduct when the

State has failed to join those offenses in accordance with Rule

3:15-1(b).   See Williams, supra, 172 N.J. at 368; Yoskowitz,

supra, 116 N.J. at 699-704.

                               II.

    This Court reached a similar result in cases involving the

failure to join non-indictable charges by invoking the Double

Jeopardy Clause of our State Constitution.   See De Luca, supra,

108 N.J. at 101-08; Dively, supra, 92 N.J. at 578-90.     In

Dively, supra, this Court broadly defined the term “same


3 In 1988, Rule 3:15-1(b) was amended to conform with the
language of N.J.S.A. 2C:1-8(b). See Pressler & Verniero,
Current N.J. Court Rules, comment on R. 3:15-1 (1988); 120
N.J.L.J. Index Pages 137-38 (1987).
                                8
offense” to encompass “any integral part of such offense which

may subject the offender to indictment and punishment.”     92 N.J.

at 581 (emphasis added) (quoting State v. Williams, 30 N.J. 105,

114 (1959)).    In that case, in part under the auspices of our

State Constitution’s double-jeopardy guarantee, we adopted the

same-evidence test -- a variant of the same-conduct test -- as a

supplement to the same-elements test.    See id. at 578, 582-83.

    In adopting the same-evidence test, we relied primarily on

Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187

(1977), and Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260,

65 L. Ed. 2d 228 (1980), which, like Ashe, cast doubt on the

singularity of the Blockburger same-elements test.    See Dively,

supra, 92 N.J. at 579-82; see also Brown, supra, 432 U.S. at 166

n.6, 97 S. Ct. at 2226 n.6, 53 L. Ed. 2d at 195 n.6 (“The

Blockburger test is not the only standard for determining

whether successive prosecutions impermissibly involve the same

offense.”).    Vitale suggested that “the Double Jeopardy Clause

bars any subsequent prosecution in which the government . . .

will prove conduct that constitutes an offense for which the

defendant has already been prosecuted.”    Grady v. Corbin, 495

U.S. 508, 521, 110 S. Ct. 2084, 2093, 109 L. Ed. 2d 548, 564

(1990) (examining Vitale), overruled by United States v. Dixon,

509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993).

    In De Luca, supra, we applied the same-evidence test in a

                                  9
case involving a driver acquitted of recklessly killing a person

with a vehicle -- death by auto.      108 N.J. at 108-11.    We held

that the State could not prosecute the driver for driving while

intoxicated (DWI) if the driver’s reckless conduct in the first

prosecution was predicated solely on his presumed intoxication.

Id. at 108-09.   In other words, if the State’s sole evidence of

recklessness in the death-by-auto case was intoxication, double

jeopardy barred the State from prosecuting the driver for DWI.

Ibid.   We came to that conclusion even though, under

Blockburger, death by auto and DWI do not share the same

elements.    Ibid.

    In Dively, supra, we reached a result similar to De Luca in

the reverse setting.    See 92 N.J. at 582-83.    There, we held

that a driver who pled guilty to DWI could not be prosecuted for

death by auto if the sole basis for his reckless conduct was his

intoxication.    Id. at 576-77, 582-83.   Additionally, in

Yoskowitz, supra, we reaffirmed that the same-evidence test was

an integral part of our double-jeopardy jurisprudence.       116 N.J.

at 691-92.

    After De Luca, Dively, and Yoskowitz, we adopted Rule 3:15-

3, which provides that “the court shall join any pending non-

indictable complaint for trial with a criminal offense based on

the same conduct or arising from the same episode.”     R. 3:15-

3(a)(1) (emphasis added).   This language parallels the mandatory

                                 10
joinder rule for indictable offenses and presumably provides

similar protection from the sort of successive prosecutions

condemned in Gregory and Williams.

    The enforcement section of Rule 3:15-3 provides that a

subsequent prosecution will be barred “as required by statute or

by the Federal or State Constitutions.”   R. 3:15-3(c).    The

drafters of that Rule knew that, under Dively and De Luca, our

State Constitution barred successive prosecutions of indictable

and lesser offenses arising under the same conduct that were not

joined by the prosecution.   Report of the Supreme Court

Committee on Criminal Practice 44, 46-47, 52-57 (1988).

Therefore, as of 1992, when Rule 3:15-3 became effective, the

same-conduct test was the operative double-jeopardy framework

for our State with respect to both indictable and non-indictable

offenses.   See R. 3:15-3 (effective 1992).

    Since 1975, the operative double-jeopardy framework in this

State has been the “same conduct” test.   See Gregory, supra, 66

N.J. at 519-20.   Thus, by the time Justice Brennan’s same-

conduct test became the majority view of the United States

Supreme Court in Grady, supra, 495 U.S. at 510, 110 S. Ct. at

2087, 109 L. Ed. 2d at 557, our law had already provided that

level of protection for fifteen years.

    Therefore, Justice Scalia’s 1993 opinion in Dixon, supra,

abandoning the same-conduct test and returning to the

                                11
Blockburger same-elements test, was completely at odds with our

jurisprudence.    See 509 U.S. at 704, 113 S. Ct. at 2860, 125 L.

Ed. 2d at 573 (overruling Grady).      Notably, the Dixon Court was

so deeply divided that it produced five separate opinions.     The

Justices disagreed not only about which test would best advance

double-jeopardy principles, but also about how a factfinder

would determine whether the same-elements test was satisfied.

See generally Dixon, supra, 509 U.S. 688, 113 S. Ct. 2849, 125

L. Ed. 2d 556.4   We do not have to follow the path taken by our

federal counterpart, particularly when doing so is in conflict

with our own well-established jurisprudence.

                                III.

     For forty years, we have been broadening the enforcement of

our mandatory joinder rules to safeguard defendants from

successive prosecution of offenses arising from the same

conduct.   Dively, De Luca, and Yoskowitz are well-reasoned

precedents of this Court.   The majority has failed to give some

“special justification” for sweeping them away, as required by




4 Only Justice Kennedy joined the entirety of Justice Scalia’s
opinion. Chief Justice Rehnquist wrote an opinion, joined by
Justices O’Connor and Thomas, concurring in part and dissenting
in part. Justice White wrote an opinion, joined by Justices
Stevens and Souter (only Part I), concurring in the judgment in
part and dissenting in part. Justice Blackmun wrote an opinion
concurring in the judgment in part and dissenting in part.
Justice Souter, joined by Justice Stevens, also wrote an opinion
concurring in the judgment in part and dissenting in part.
                                 12
the doctrine of stare decisis.   State v. Brown, 190 N.J. 144,

157 (2007) (quoting Dickerson v. United States, 530 U.S. 428,

443, 120 S. Ct. 2326, 2336, 147 L. Ed. 2d 405, 419 (2000)).     The

majority provides no compelling, much less persuasive, reason --

other than the illusory promise of efficiency -- for withdrawing

protection previously guaranteed under our State Constitution

and for reversing Dively and De Luca and abrogating much of

Yoskowitz.   Indeed, the majority is resigned to suggesting

possible remedies for the constitutional gap it has opened.

    What is the fallout from the majority’s ruling?     There is

now no bar to prosecuting defendants for differently framed non-

indictable offenses based on the exact same conduct.    The

majority suggests that the Blockburger test is superior because

it provides the benefit of ease of application.    See ante at ___

(slip op. at 16).   The Bill of Rights, however, was not intended

to make prosecutions more efficient; it was intended to provide

greater safeguards to the liberty of our people.

    Without changing our Court Rules to allow for the

enforcement of Rule 3:15-3(a)(1), or leaving Dively and De Luca

intact, a defendant convicted or acquitted of possession with

intent to distribute drugs on a particular street corner can be

prosecuted again for loitering with intent to distribute drugs

on the same street corner.   That is so because, although

defendant’s conduct is the same, the elements of the two

                                 13
offenses are different.    Had defendant pled guilty to the

disorderly persons possession-of-marijuana charge -- before the

municipal court judge amended it to drug loitering -- no one

disputes that the State could not proceed with a prosecution for

possession with intent to distribute.   The double-jeopardy

outcome changes only because the possession charge was amended

to a similar offense with a similar penalty -- drug loitering,

which has different elements than the greater offense.      Even if

the amendment in this case was for benign reasons, the potential

for manipulation in the future should be self-evident.

    Under this new regime, double jeopardy will not bar the

State from subjecting a public employee, who is acquitted of

official misconduct, N.J.S.A. 2C:30-2(a), based on an allegation

of stealing, from a second prosecution for disorderly theft,

N.J.S.A. 2C:20-2(b)(4), -3(a), based on the same conduct and

evidence.   That follows because the elements of official

misconduct and disorderly theft are different.    Additionally, in

robbery cases based on alleged force used by a defendant,

N.J.S.A. 2C:15-1(a)(1), an acquittal on the robbery will not bar

a second prosecution for simple assault, N.J.S.A. 2C:12-1(a), in

municipal court.   The prosecutions in the reverse order would

also be permissible -- without offending the majority’s notions

of fundamental fairness.

    Moreover, the State can consecutively prosecute an

                                 14
individual in municipal court for possession of drugs, N.J.S.A.

2C:35-10(a)(4), possession of drug paraphernalia, N.J.S.A.

2C:36-2, and loitering to obtain drugs, N.J.S.A. 2C:33-

2.1(b)(1), all arising from the same conduct, because the

elements of the three non-indictable offenses are distinct.

Those are but a few examples of the types of successive

prosecutions for offenses arising from the same conduct that

will be permissible as a result of the majority’s decision.

    The majority is not compelled to take this backwards step

in our jurisprudence.   Other jurisdictions have recognized the

flaws of relying solely on the same-elements test in the post-

Dixon era.   See, e.g., Richardson v. State, 717 N.E.2d 32, 49-50

(Ind. 1999) (“[T]he statutory elements test and the actual

evidence test, are components of the double jeopardy ‘same

offense’ analysis under the Indiana Constitution.”); State v.

Cotton, 778 So. 2d 569, 573 (La. 2001) (“In evaluating claims of

double jeopardy under [Louisiana law and the Louisiana

Constitution], Louisiana courts have used the ‘same evidence’

test, which . . . is ‘somewhat broader in concept than

Blockburger.’” (citation omitted)); State v. Gazda, 82 P.3d 20,

22 (Mont. 2003) (“[Montana law] provides criminal defendants

with greater protection against double jeopardy than the

traditional double jeopardy ‘elements’ test set forth . . . in

Blockburger.” (citation omitted)).

                                15
     That other state courts follow Dixon does not make the

singular same-elements test superior to the same-conduct test

for double-jeopardy purposes.    If the majority’s approach today

were the better one, this Court would never have decided

Gregory, Williams, Dively, and De Luca as it did.       “In

protecting the rights of citizens of this State, we have never

slavishly followed the popular trends in other jurisdictions,

particularly when the majority approach is incompatible with the

unique interests, values, customs, and concerns of our people.”

Lewis v. Harris, 188 N.J. 415, 456 (2006).    Indeed, we have

recognized that “[t]he New Jersey Constitution not only stands

apart from other state constitutions, but also ‘may be a source

of individual liberties more expansive than those conferred by

the Federal Constitution.’”     Ibid. (quoting State v. Novembrino,

105 N.J. 95, 144-45 (1987)).    Aligning this Court’s

interpretation of our State Constitution’s double-jeopardy

guarantee with the United States Supreme Court’s interpretation

of its federal cognate provision makes no sense given this

Court’s decades-long commitment to protecting the accused from

the successive prosecution of offenses arising from the same

conduct.    We should remain true and consistent to the governing

principles of our own jurisprudence.    We should construe our

Double Jeopardy Clause so that it fulfils notions of fundamental

fairness.    The majority’s concession that the amorphous

                                  16
fundamental-fairness doctrine may have to come to the rescue if

unjust results arise from its new double-jeopardy rule is an

admission of the flawed approach it is taking.

                                IV.

    No one contests that the non-indictable disorderly persons

offense of marijuana possession or drug loitering should have

been joined with the indictable offense of possession with

intent to distribute offense.   See R. 3:15-3(a)(1).   The

appropriate response is not to abandon our double-jeopardy

jurisprudence by overruling Dively and De Luca, but rather to

enforce more rigorously our mandatory joinder rule, which

requires the joinder of offenses arising from the same conduct.

    The majority’s reversion to the same-elements test

backtracks from a path that this Court had set out on forty

years ago in Gregory.   The majority’s new rule will allow the

State, with all its resources and power, to pursue repeated

prosecutions to convict an accused for the same offense, despite

an earlier conviction or acquittal.   That rule hollows out the

protections previously provided by our jurisprudence and our

State Constitution’s Double Jeopardy Clause.

    For the reasons expressed in this opinion, I respectfully

dissent.




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