                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION


                             SUPERIOR COURT OF NEW JERSEY
                             APPELLATE DIVISION
                             DOCKET NO. A-1653-14T1


STATE OF NEW JERSEY,             APPROVED FOR PUBLICATION

                                      July 10, 2017
     Plaintiff-Respondent,
                                    APPELLATE DIVISION
v.

KONSTADIN BITZAS, a/k/a
CONSTANTINE BITZAS,
CHRISTOS BITZAS, and
DEAN BITZAS,

     Defendant-Appellant.
_________________________

         Argued September 28, 2016 – Decided     July 10, 2017

         Before Judges Fuentes, Simonelli and Gooden
         Brown.

         On appeal from the Superior Court of New
         Jersey,   Law   Division,  Bergen County,
         Indictment No. 14-02-0228.

         Moses V. Rambarran argued the cause for
         appellant (Rambarran Law Firm, attorneys; Mr.
         Rambarran, of counsel and on the brief).

         Anthony C. Talarico, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued
         the cause for respondent (Gurbir S. Grewal,
         Acting Bergen County Prosecutor, attorney; Mr.
         Talarico, of counsel and on the brief).

     The opinion of the court was delivered by

FUENTES, P.J.A.D.
     A Bergen County grand jury returned an indictment against

defendant Konstadin Bitzas, a/k/a Dean Bitzas, charging him with

second degree possession of a firearm for an unlawful purpose,

N.J.S.A. 2C:39-4a (count one); third degree terroristic threats,

N.J.S.A. 2C:12-3b (count two); fourth degree aggravated assault

by pointing a firearm at or in the direction of another, N.J.S.A.

2C:12-1b(4) (count three); fourth degree possession of a handgun

following   a   conviction    for      possessing     a   controlled   dangerous

substance, N.J.S.A. 2C:39-7a (counts four through eight); second

degree possession of an assault firearm, N.J.S.A. 2C:39-5f (count

nine); and fourth degree possession of a large capacity magazine,

N.J.S.A. 2C:39-3j (counts ten and eleven).

     Before the trial began, the judge severed counts four through

eight to allow the jury to decide the remaining counts without

being influenced by defendant's prior drug-related convictions.1

The State's first witness, P.K,2 was a woman who previously had a

dating relationship with defendant.                 She testified about the

incident    that    gave   rise   to    the   first       three   counts   of   the

indictment.        P.K. continuously responded to defense counsel's


1
  A bifurcated trial is required to avoid the prejudice that would
ensue if the jurors were previously aware that defendant had been
convicted of one or more of the predicate offenses listed in
N.J.S.A. 2C:39-7a; see State v. Ragland, 105 N.J. 189, 193 (1986).
2
  Although the indictment identifies the complaining witness by
her complete name, we use only her initials to protect her privacy.
                             2                              A-1653-14T1
questions in a disruptive manner. She disregarded the prosecutor's

instructions, deliberately mentioned extraneous information that

was prejudicial to defendant, and walked out of the courtroom

during her cross-examination on the first day of trial.

     Although the trial judge issued curative instructions to the

jury, P.K.'s obstreperous behavior eventually overwhelmed the

proceedings.    It soon became clear that the curative instructions

could neither counteract the prejudice caused by the witness's

misbehavior nor deter her from continuing to disrupt the trial.

As a sanction for P.K.'s refusal to adhere to the prosecutor and

the court's repeated instructions, the trial judge sua sponte

dismissed     the   first   three   counts   of   the   indictment3   "with

prejudice."     The judge did not consult with the attorneys before

taking such an extraordinary action.         More importantly, the judge

did not identify any legal authority that permits a judge in a

criminal trial to unilaterally dismiss a criminal charge "with

prejudice" as a sanction for the misconduct of the State's fact

witness, or to enter the functional equivalent of a judgment of

acquittal before the State has completed presenting its case in

chief.


3
  The three counts the judge dismissed charged defendant with
second degree possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4a; third degree terroristic threats, N.J.S.A.
2C:12-3b; and fourth degree aggravated assault, N.J.S.A. 2C:12-
1b(4).
                           3                            A-1653-14T1
     The judge overruled the State's objection challenging her

authority to take this action and denied the State's motion to

declare a mistrial.        Defense counsel acquiesced to the trial

judge's decisions without comment. The State's case then continued

with the indictment's remaining counts, which were part of the

first phase of a bifurcated trial.                 The State called a law

enforcement witness who testified about the execution of a search

warrant   on   defendant's     residence,    the    seizure   of   defendant's

firearms, and the operability of defendant's weapons.

     The jury found defendant guilty on the three counts of the

indictment that charged him with second degree possession of an

assault firearm, N.J.S.A. 2C:39-5f; and fourth degree possession

of a large capacity magazine, N.J.S.A. 2C:39-3j.                The same jury

later reconvened in the second phase of the bifurcated trial and

convicted defendant on five counts of fourth degree possession of

a handgun following a conviction for possessing a controlled

dangerous substance, N.J.S.A. 2C:39-7a.            The trial court sentenced

defendant to an aggregate term of thirteen years, with eight years

of parole ineligibility.

     In this appeal, both sides have framed their arguments in a

manner that repudiates the positions they advanced before the

trial court.        Defendant now argues the trial judge abused her

discretion     in   allowing   the   jury   to   render   a   verdict   on   the

                                 4                                      A-1653-14T1
remaining    counts       in   the   indictment        after    she   dismissed     with

prejudice    the    first      three       counts    that   involved    P.K.   as    the

complaining witness.             Defendant claims the judge should have

interviewed each juror individually to determine whether any of

them had a negative impression of defendant based on P.K.'s

extensive testimony portraying him as a "bad person in general."

Defendant    also       argues   the   judge's       curative    instructions       were

insufficient       to    counteract         the     prejudice    caused   by    P.K.'s

testimony.

     The State similarly abandons the position it adopted before

the trial court.         In a letter in lieu of a formal brief submitted

pursuant to Rule 2:6-2(b), the State now argues the trial judge

did not abuse her discretion in denying its motion for a mistrial

because defendant was not prejudiced "and the jury was given a

sufficient curative instruction."

     Despite the sophistry of the parties' positions, our duty as

appellate jurists is to determine whether the magnitude of the

trial judge's error is clearly capable of producing an unjust

result.     R. 2:10-2.         We are satisfied the trial judge's decision

cannot stand as a matter of law.                    The testimony of the State's

complaining witness is replete with extraneous, highly prejudicial

comments about defendant's propensity for violence and alleged use

of illicit drugs.          After carefully reviewing the record, we are

                                       5                                       A-1653-14T1
satisfied the trial judge's initial response to the witness's

improper commentary was insufficient to counteract its prejudicial

effect.

     The trial judge has the ultimate responsibility to manage a

trial.    When presiding, the judge must impress upon all of the

trial's participants that they are expected to behave in a manner

that promotes decorum and solemnity.          Although a trial is an

inherently    adversarial   proceeding,     the   attorneys'   zeal    is

circumscribed by the Rules of Professional Conduct and their role

as officers of the court.     Witnesses, especially those who have

been victims of a crime, are understandably emotionally invested

in the outcome of the proceedings.    It is therefore particularly

important for judges to: (1) set clear guidelines on how witnesses

should respond to a lawyer's questions; and (2) establish and

enforce the boundaries of appropriate behavior.        Here, the trial

judge erred when she delegated these responsibilities to the

prosecutor.

     We also hold the trial judge erred when she denied the State's

motion to declare a mistrial after it became apparent that the

witness's misconduct had irreparably tainted defendant's right to

a fair trial.    The judge's decision to dismiss the indictment's

first three counts was ineffective in counteracting the prejudice

caused by the witness's misconduct.       More importantly, a Superior

                              6                                 A-1653-14T1
Court judge presiding in a criminal trial has no authority to sua

sponte dismiss a count in an indictment as a sanction for a lay

witness's misconduct before the State has completed presenting its

case in chief.

                                      I

                           The First Day of Trial

     On the first day of trial, the State called P.K. as its first

witness.     She testified she had "a dating relationship" with

defendant   that   began    in   August   2012   and   ended   in   a   violent

confrontation on August 31, 2013.          During this period, P.K. saw

defendant "on and off" and slept at his house occasionally.                    In

response to the prosecutor's questions, P.K. claimed defendant

bragged to his friends about having firearms in the house.                   She

testified defendant even pulled a machine gun out of his mattress

and said, "'Look what I got.'"

     According to P.K., the event that gave rise to the first

three counts of the indictment occurred on August 31, 2013.                  She

arrived at defendant's house at approximately 10 p.m.                       P.K.

testified the following occurred that night:

            PROSECUTOR: [T]ell us what happened when you
            got to the defendant's house that night[.]

            WITNESS: When I got to his house[,] he let me
            in through the back, I believe, and he had
            something -- he let out a big puff of smoke
            and I got into an argument with him.       He
            grabbed my arm. He started hitting me so I
                              7                                         A-1653-14T1
         tried to call the police. He pulled my phone
         out.   He broke my phone in half, threw it
         against the dishes, started beating me up,
         then went into his drawer, the same drawer
         that he pulled out the gun from last time. I
         saw him turning to me --

         DEFENSE COUNSEL: Objection.

         THE COURT: What's your objection?

         DEFENSE COUNSEL: She's talking about something
         that happened last time.

         WITNESS: No, I am not, sir.

         DEFENSE COUNSEL: Judge, we went over this
         numerous times.

         THE COURT: The objection is overruled but the
         way I understood the testimony was about
         August 31, 2013, correct?

         PROSECUTOR: Yes.

         [(Emphasis added).]

    Although the judge overruled defense counsel's objection, the

first language we highlighted exemplifies the conduct that later

permeated P.K.'s testimony during cross-examination.      Although

seemingly innocuous, her comment that defendant "let out a big

puff of smoke" is actually incendiary.   As the trial judge later

explained, P.K.'s references to "smoke" were accompanied by a

"snorting" pantomime on the witness stand.   Taken together, the

judge concluded that P.K. wanted the jury to view defendant as a

user of illicit drugs.


                            8                              A-1653-14T1
      The second highlighted portion reveals P.K.'s disruptive

tendencies while on the witness stand.           As the record shows, P.K.

impulsively inserted herself into the colloquy between the judge

and   defense    counsel    and   personally    refuted   defense    counsel's

objection by addressing him directly. These two elements of P.K.'s

temperament became the hallmark of her obstreperous demeanor,

which escalated out of control during defense counsel's cross-

examination.

      When the prosecutor resumed her direct examination, she asked

P.K. to continue describing what occurred on the night of August

31, 2013.       According to P.K., although defendant had broken her

cellphone, she was able to call the police using the home's

landline telephone.        P.K. testified that when defendant discovered

she had called the police, he said: "I will fucking kill you.                  I

swear to God I will fucking kill you.           I swear I will kill you for

this if you say anything."             P.K. testified that when the police

arrived, she was "scared" and "didn't say one word."                When asked

why she was scared, P.K. responded: "I was scared because of the

guns, because he beat me[,] and [because] he told me that he's

going to kill me."

      After the police officers arrived, P.K. was transported to a

nearby hospital for a head injury that caused lumps.                  She had

visible bruises and abrasions "all over her body."           The prosecutor

                                   9                                   A-1653-14T1
showed P.K. a series of photographs taken the following day,

September 1, 2013, which purportedly depicted the injuries she

sustained to various parts of her body.             P.K. also identified two

photographs   that    she   claimed     depicted      her     cellphone,     which

defendant allegedly "broke . . . in half."                   A third photograph

depicted the wall-mounted landline telephone she used to call the

police.   The last photograph depicted what P.K described as the

"machine gun under [defendant's] bed."4               Except for the excerpt

highlighted   above,    P.K.     completed      her    testimony     on     direct

examination without incident.

     P.K.'s disruptive behavior reached a critical point during

defense counsel's cross-examination.            The first incident occurred

when defense counsel questioned P.K. about her trip to Greece to

visit   defendant's    parents    in    2012.       The      following    exchange

illustrates the problem:

           DEFENSE COUNSEL:            How   long     were    you   in
           Greece[?]

                . . . .

           A. Two weeks. Unbearable weeks. Unbearable.
           Isolation. One hundred ten degrees. No one,
           no one else there. Wouldn't talk to me. Spent
           the whole time ignoring me.    It was lovely
           traveling with him.

           DEFENSE COUNSEL: Lovely traveling? When you
           came back you decided the trip was over?

4
  Although these photographs were admitted into evidence and
published to the jury, they are not part of the appellate record.
                            10                            A-1653-14T1
A. Then he got back with his girlfriend he was
with for the whole time I was with him.    Her
name was [N.M.]. They smoked crack together.
That's why he had a problem with our
relationship.

DEFENSE COUNSEL: Judge --

THE COURT: I have to talk to the attorneys.

(Sidebar with reporter)

THE COURT: [Prosecutor], did you not inform
your victim she can't talk about any prior bad
acts of the defendant?

PROSECUTOR: I did. He's asking the questions.

THE COURT: You're going to have to talk to
her. She should know this. This is like I
have to give a limiting instruction.

PROSECUTOR: All right. Perhaps . . . we can
break and I can reinforce that. It's 12:30
[p.m.] I can reinforce that.

THE COURT: I want to continue with the case.

DEFENSE COUNSEL: I have to see my son before
he goes away for [thirty] days. I don't mind
skipping lunch.

THE COURT: We'll continue.      I'll   give   a
limiting instruction.

(Sidebar concluded)

[What occurs next is in the presence of the jury.]

THE COURT: [P.K.], can you step outside for a
moment[?]

Prosecutor, if you could step outside with
her.    I just want to give the limiting
instruction, [Prosecutor].  Could you step
                 11                               A-1653-14T1
            outside with her[?] . . . I want to give the
            instructions to the jurors.  We'll call her
            back in when we're ready.

            PROSECUTOR: All right.

                  . . . .

            THE COURT: [Addressing the jury]

            You heard testimony with regards to some other
            prior bad activity involving the defendant. I
            believe the statement . . . was he was using
            crack cocaine with some other individual by
            the name of [N.M.].     There's absolutely no
            evidence of that at all. You're to disregard
            that completely as though you never heard it.
            . . . [Y]ou are not at any point in time to
            inject   that    in   any    way   into   your
            deliberations.     It's as though it never
            happened. You are to completely disregard it
            because there's absolutely no evidence of that
            whatsoever.

     At   this    point,    the       record    shows   P.K.   returned    to    the

courtroom, took the witness stand, and resumed with her testimony

on cross-examination.        Soon thereafter, P.K. testified that she

slept at defendant's house after she returned from Greece "because

he wouldn't let me leave and go home."                  Defense counsel stated:

"I've   known    Mr.   Bitzas     .   .   .    twenty-eight    years."     Defense

counsel's   statement      prompted       an   immediate   objection      from   the

prosecutor.      After sustaining the objection, the judge made the

following comments in the jury's presence, which resulted in the

following exchange:

            THE COURT: Absolutely.  [Defense counsel],
            you're either going to be the attorney or
                             12                                            A-1653-14T1
you're going to be the witness. Which is it
going to be?    Tell me right now before we
continue with this trial. You know what the
court rules are. You cannot testify on behalf
of anyone.

DEFENSE COUNSEL: I'm trying to get the truth.
I'm getting less than the truth.

THE COURT: [Defense counsel], I'll see you at
sidebar.

[The following colloquy occurred at sidebar.]

THE COURT: What is the circus that's going
on in this courtroom? You know that you are
not supposed to talk about your personal
feelings about the defendant, about whether
or not you like him, whether or not he's your
good friend for twenty-eight years.     If I
hear any more about a personal relationship
that you have with the defendant you're going
to get sanctioned and I'm going to have to
declare a mistrial.

     . . . .

DEFENSE COUNSEL: I didn't do it on purpose.

THE COURT:      The same thing with the
Prosecutor. When you have a domestic violence
case[,] the first thing that you have to do
is . . . tell the witnesses you can't talk to
them about all the bad things that ever
happened with regards to crimes.       That's
another egregious violation.

PROSECUTOR: I have instructed.

THE COURT: This is like a circus in this
courtroom.

PROSECUTOR: I have instructed her. She even
-- when we got to the courtroom she said, "But
it happened."

                  13                             A-1653-14T1
            I said to her, "It doesn't matter. You're not
            allowed to talk about [that]."     She said,
            "Okay, okay." I've instructed her.

            THE COURT: If she does it again the case is
            over.   It's going to be a dismissal with
            prejudice if she does it again.   Now she's
            been warned.

            PROSECUTOR: I cautioned her.

            THE COURT: Like a circus on both sides.

            (Sidebar conference concluded.)

            [(Emphasis added).]

       Defense counsel resumed his cross-examination by asking P.K.

to    describe    the   events   that   preceded   the   confrontation    in

defendant's residence on August 31, 2013.          According to P.K., she

first met defendant that night at a joint restaurant and bar.            She

told defendant she was hungry and wanted to eat before consuming

any   alcoholic    beverages.     P.K.   testified   that   defendant    had

finished eating by the time she arrived and ignored her many

requests to get something to eat.            She nevertheless consumed

several alcoholic drinks and soon noticed she was "not sober."

Although she asked defendant to drive her home or tow her car,5 he

left the club without helping her.




5
  P.K. testified defendant owned and operated a towing service
company.
                           14                          A-1653-14T1
     P.K. eventually drove to defendant's residence.                Defense

counsel asked P.K. what happened when she arrived.            P.K. responded

as follows:

           I walked in and he was holding some glass thing
           in his hand. He lets out a big puff of smoke.
           His eyes got like this. He started drooling.
           And I said this is where you went? This is
           why I got stuck there? This why? [sic] This
           is all why?

           I held the phone up. He went like this. He
           started grabbing me, hitting me. Cracked my
           phone.   I said stop hitting me.    Enough.
           Enough. Every time. No. I'm not putting up
           with it anymore.

           And this time he knocked me down. I tried --
           He took my phone out of my hand, cracked it
           in half, threw it against the dishes.    The
           garbage is right next to the dishes.

We pause to note that defense counsel did not object to P.K.'s

clear references to defendant's illicit drug use; nor did the

trial   judge   take   any   measures   to   dissuade   the    witness   from

continuing to disregard the boundaries of acceptable testimony.

     Counsel's use of open-ended questions on cross-examination

also allowed P.K. to frame her responses in an erratic fashion,

aimlessly wandering without direction.          This approach permitted

P.K. to continue to respond in a manner that exacerbated the

"circus" atmosphere the judge sought to avoid.                The following

exchange illustrates the point:

           DEFENSE COUNSEL: July 18, 2012.        You're still
           dating Mr. Bitzas?
                             15                                      A-1653-14T1
          A. I don't know when that was.    Can you give
          me some context[] clues?

          DEFENSE COUNSEL: Couple [of] days after you
          started to date him. A couple [of] days after
          you started to date him [when] you said he
          wasn't normal and he had a black eye[;] two
          days later you're still dating him?

          A. Yeah.   That seemed like the day that he
          brought all the people over when he showed the
          machine gun, yes.

          DEFENSE COUNSEL: Judge, this is ridiculous.

          A. Actually you're right.

          DEFENSE COUNSEL: It's improper testimony.

          THE COURT: The objection is overruled.    She
          answered your question.    You wanted to know
          what happened two days later. She says that's
          the time --

          DEFENSE COUNSEL: I asked specifically were you
          dating two days later.

          THE COURT: She answered that question.    Move
          on to your next question.

          [(Emphasis added).]

     Once again, the record shows P.K. addressing defense counsel

directly as counsel interacts with the trial judge on a point of

procedure.   This combative interaction between defense counsel and

P.K. continued unabated.    Throughout her cross-examination, P.K.

continued to mention defendant's alleged "crack" use with a woman

she identified as defendant's girlfriend.   At one point, P.K. even


                             16                             A-1653-14T1
attempted to interact with a person seated in the section of the

courtroom reserved for the public.

           THE WITNESS: She could have called the police.
           And he said he's in Pennsylvania. He lied.
           He was in a hotel room with [N.M.] smoking
           crack in Fort Lee with my keys. I wanted to
           know where they were.    That's the only time
           I saw her. I couldn't ask her for a tampon.
           I asked her for keys to get in my house. She
           wouldn't give me --

           THE COURT: You have to wait until the next
           question. What's your next question[?]

           DEFENSE COUNSEL: Why does she have a key to
           your apartment?

           THE WITNESS: Who?

           DEFENSE COUNSEL: You said you had to wait for
           her, pointing to someone in the audience.

P.K. did not identify who she pointed to, but that person was

seated somewhere in the public section of the courtroom.               From

this   point   forward,   P.K.'s   combative   conduct   against   defense

counsel quickly degenerated into outright refusal to answer his

questions.

           DEFENSE COUNSEL: Where does your other family
           live?

           A. I'm not telling you anything about my
           family.   I don't want him to know anything
           about my family. He's a dangerous person. No
           way. No way.

           DEFENSE COUNSEL: [Judge,] [a]sk her to control
           these outbursts.


                               17                                  A-1653-14T1
A. I'm not revealing any information about my
family to this criminal with guns.

DEFENSE COUNSEL:    Judge, this is completely
improper.

A. That's completely improper your question
[sic].

THE COURT: [P.K.], you have to calm down. You
have to wait for the question and respond to
the question.    Any other information [sic]
respond to the question.

All right, [defense counsel].

DEFENSE COUNSEL: How far was your family's
house?

A.   None of your business, sir.     I'm not
letting you know where my family is so he can
kill them with his guns. No, no. Sorry. He's
already threatened my life. He's already done
things to them. No way. You can ask me that
after he threatened to kill me?      Are you
serious?

DEFENSE COUNSEL: You want to talk at sidebar?

THE COURT:   No.   Answer the question.   How
long does it take you to go from one location
to your family's house?       Don't give an
address.

A. My location to my family's house?

THE COURT: Yes.    How many minutes?

A. Which family member are you talking about?

THE COURT: The one that you said you went to
when you could not get into your house and you
didn't want to pay for a locksmith overtime.

A. I don't know.     I can't answer that.    I
don't know where I got the key that night.   I
                  18                             A-1653-14T1
           don't remember what happened.         That's none of
           anybody's business.

                 . . . .

           DEFENSE COUNSEL:     Who       is   there   [at    your
           family's house]?

           A. Somebody in my family.        None of your
           business, sir.    None of your business, sir.
           Please don't ask me any question[s] about my
           family. I don't want him having anything to
           do with my family. This is my mistake that I
           went out with this piece of garbage and I don't
           think that they should suffer or be involved
           in any way.

     Following several failed attempts to get P.K. to respond, the

trial judge directed defense counsel to "[a]sk another question

on another topic."      When counsel asked P.K. if her family lives

in Fort Lee, P.K. responded:        "None of your business.      Let me go.

I need to take a break, please."          At this point, the transcript

merely states: "Witness leaves courtroom."             Although it was not

yet near the end of the court-day, the trial judge advised the

jurors that the trial would not resume because one of the attorneys

"has something I excused him for.         They're going to attend to that

other case."    The trial resumed the following day.

                                     II

                        The Second Day of Trial

     The second day of P.K.'s testimony began with the prosecutor

assuming   a   more   aggressive,    proactive    role   in    objecting   to

questions that he thought were designed to revisit areas covered
                           19                            A-1653-14T1
on the previous day.     However, the record shows defense counsel's

questions sought only to obtain responsive answers to the questions

P.K. previously refused to answer. The trial judge was sympathetic

to   the   State's   approach.    After    sustaining     the   prosecutor's

objections,    the   judge   addressed    defense   counsel     directly    as

follows:

            THE COURT: Move on to another topic. Whatever
            topic it may be but it has to be a different
            topic. I think yesterday you explored it at
            length. She's explained it again today that
            she got a spare key. She then . . . got into
            her apartment that night. I think that's been
            now settled, that whole entire issue.

            WITNESS: Thank you, your Honor.

      The cross-examination proceeded relatively uneventfully from

this point forward.     Defense counsel established that P.K. agreed

to travel to Greece with defendant after having known him for

approximately    one   month.     Although   she    had   kind    words    for

defendant's parents, who resided in Greece at the time, P.K.

described the trip as extremely unpleasant.         Defense counsel also

questioned P.K. about the nature of her and defendant's activities

as a couple.    The next point of contention occurred when defense

counsel sought to explore P.K.'s testimony concerning her seeing

defendant in Florida.

            DEFENSE COUNSEL: You testified you met him in
            Florida?


                                 20                                  A-1653-14T1
A. I was in Florida and he was following me
around over there.

DEFENSE COUNSEL:   He   was   following   you   in
Florida?

A. Yes, he was.

DEFENSE COUNSEL: Who were you with in Florida?

A. I don't know. He said he was in a hotel
room [or] something.     But they tried to
separate us.    His friend and the friend's
sister separated us so that he couldn't come
near me because they said he was bad news and
he just got out of jail. That's exactly what
happened.

DEFENSE COUNSEL: Judge, this is completely
improper testimony.

A. That was exactly what happened.        That's
why.

THE COURT:   There's an objection.

Jurors, I'm going to instruct you again this
trial is specifically about an incident that
happened in August of 2013.

[Defense counsel], you're asking her questions
about something when she was eighteen,
nineteen years old. You're opening the door.
You're stepping right into it.

I'm going to inform the jurors that last bit
of testimony you just heard, that she believed
that she heard something with regards to him
being in jail, that that be completely
stricken from the record.      You're not to
consider that in any way. It's hearsay.

Remember what I explained to you about
hearsay. What other people say most of the
time is inaccurate. Like playing telephone.
By the time it gets to another person it's an
                  21                                 A-1653-14T1
            out-of-court statement. It's completely not
            relevant, is not credible testimony in any
            way.   It's as though it never was said in
            court.

            [Defense counsel], I'm going to remind you
            again you should probably continue with your
            cross examination as it relates to this
            case[,] but you're opening the door to all
            these other things that are not relevant.

     Immediately following the judge's rebuke of the manner in

which he questioned P.K., defense counsel asked P.K.: "Did you

hook up with him when you were in Florida?"             This prompted an

immediate objection from the prosecutor.         The judge sustained the

objection and again criticized defense counsel in the presence of

the jury.   The judge admonished that "what somebody did when they

were eighteen[,] if it's even true[,]" is not relevant to the

case.   Defense counsel responded by acknowledging he was not aware

the Florida trip occurred when P.K. was eighteen years old.

     From this point forward, the matter proceeded in the same

disorderly fashion. The judge continued to disparage and criticize

defense counsel in the jury's presence; P.K. continued to defy the

decorum expected from a witness in a criminal trial by answering

defense counsel's questions with nonresponsive, extraneous matters

intended to cast defendant as a dangerous and violent man who used

illicit drugs on a regular basis.           For example, when defense

counsel   asked   P.K.   if   defendant   ever   met   her   parents,   she

responded: "No way.       My family would never want to meet him.
                               22                          A-1653-14T1
Never.   They would never let him near me or their house.      No way.

No way."    When defense counsel followed up to clarify, P.K.

admitted that defendant had met her mother, but not her "mother

and father." When defense counsel remarked "[V]ery clever," P.K.

made the following unsolicited statement:

           THE   WITNESS:  Can   you   not  mention   my
           handicapped mother?   I don't want him near
           her.   He entered her house.     It's a very
           sensitive area. If he comes near her -- she
           was getting crank calls from him.     I don't
           want to stray off the subject.     However, I
           don't want him involved in her life.

      In reacting to this event, the trial judge failed to correct

the   witness's   improper,    unsolicited   comments,   but     again

reprimanded defense counsel in the jury's presence.

           THE COURT: You asked the question. I keep
           on telling you.    You keep on going on all
           these other topics and then you don't like the
           answer.

           DEFENSE COUNSEL: Actually the answers are not
           responsive.

           THE COURT: They're responsive. You're asking
           if he met the mother and father.

           DEFENSE COUNSEL: I had no idea the mother had
           a handicap. This is the first I'm hearing of
           it.

           PROSECUTOR: Your Honor, again we're going to
           get some testimony from counsel . . . as to
           what he knew and what he didn't know.

           DEFENSE COUNSEL: I didn't know any of this.


                              23                               A-1653-14T1
THE WITNESS: She had a stroke.    She's in a
wheelchair.   Please leave her alone.    She
doesn't need his trauma that we had from him
or enough [sic]. I don't want to bring her
up. Would you mind please? Out of respect
please.     And   understanding  about   the
experiences that I've been through, please
understand. Keep that in mind. That's all
I'm asking.

DEFENSE COUNSEL: All I wanted to know is
. . . did he ever meet your mother. That was
a yes or no question.

A. He followed me to my house one day.    He
entered her house.   I was having a private
conversation with her.    He said, "I locked
your keys in your house [P.K.]." He entered
her house, opened it without --

DEFENSE COUNSEL: Yes or no.

A. Yes, he opened it and trespassed without
anybody inviting him.

DEFENSE COUNSEL: There's no control here.

THE COURT: Wait until he asks the question
and answer the question.

Go ahead.   Ask your next question.

THE WITNESS: Next question please.

DEFENSE COUNSEL: Is it fair to say your mother
is a neighbor?

A. Listen, can you please get off my mother
please. I'm begging you. I really am in fear
for my life and her life because of him.
Please. You're asking me where she lives now?

DEFENSE COUNSEL: I ask for an instruction
about this.


                  24                             A-1653-14T1
          PROSECUTOR:   Objection   again   for these
          editorial comments by counsel, your Honor.
          It's not appropriate for this trial.

     This chaotic scene continued in the jury's presence, while

the judge and counsel discussed their respective recollections of

what P.K. had said about her family during her testimony on the

previous day.   Finally, the judge again admonished defense counsel

to remain focused on the event identified in the indictment.

          THE COURT: [Defense counsel], I'm going to
          direct you to ask questions about the
          incident. [The] August 31, [2013] incident.
          I've given you more than enough leeway to
          explore all different topics on cross-
          examination[,] but we [have to] concentrate
          on this indictment.

          DEFENSE COUNSEL: Excellent.

          THE COURT: Make sure that you discuss it with
          your client[,] but every question from now on
          better be with regards to that indictment.

          DEFENSE COUNSEL: Judge, Mr. Bitzas needs to
          use the bathroom.

          THE COURT: He can wait.    He's a big boy.6

          DEFENSE COUNSEL: He has diabetes.

          THE COURT: Have a seat.    Go ahead.




6
  We have included this remark by the trial judge because it
displays insensitivity and a lack of judicial decorum. Although
levity is not always inappropriate in a courtroom, this remark is
facially offensive because it gratuitously demeans defendant based
on his gender, shows insensitivity to a basic human need, and
ignores a potentially serious health issue.
                            25                             A-1653-14T1
       Defense counsel resumed the contentious cross-examination,

trying to remain focused on the incident that occurred on August

31, 2013.    P.K. remained combative and undeterred.           She claimed

defendant consistently lied to her about the nature of their

relationship and continued his involvement with N.M. while dating

her.    When defense counsel characterized her relationship with

defendant    as   akin   to   "living   in   a   fictitious   world,"   P.K.

responded:     "Everything I'm finding is like illegal, messages,

drugs, everything."      Defense counsel did not object.

       The matter finally reached a critical point of no return when

defense counsel questioned P.K. about what occurred in defendant's

house on August 31, 2013.         When defense counsel asked P.K. if

defendant was "attentive" to her, she responded: "He was attentive

to his drugs."    This prompted defense counsel to turn to the trial

judge and say: "This is ridiculous."         At the prosecutor's request,

the parties approached the judge at sidebar to discuss the matter.

Once outside the jury's presence, the prosecutor stated for the

first time that defendant was also facing a disorderly persons

charge for possessing drug paraphernalia; this charge was being

tried simultaneously by the trial judge as a municipal court.            The

prosecutor argued the judge could use P.K.'s testimony to support

the factual findings the court would need to make with regard to

this charge.

                                 26                                 A-1653-14T1
    The judge rejected the prosecutor's argument as an improper

attempt   to    justify   P.K.'s    repeated   references    to   defendant's

illicit   drug    use.      The    judge   noted   that   evidence   of   drug

paraphernalia should be presented through the testimony of police

witnesses.      The prosecutor ultimately agreed and abandoned this

argument.      The judge then returned to P.K.'s repeated violations

of the strict limits she was required to follow with respect to

her testimony.      The prosecutor assured the judge that she had

instructed P.K. accordingly.            The judge excused the jurors to

address the problems associated with P.K.'s testimony and to

address P.K. directly:

            THE COURT: There's been an objection from the
            defense about the fact the victim, [P.K.],
            once again has talked about the defendant
            using drugs[.]

                  . . . .

            I gave [the prosecutor] significant time to
            go outside. She assured me she had spoken to
            [P.K.], that she understands now.     It was
            inadvertent.   She actually had advised you
            during the preparation for the trial that you
            could not discuss the drug activity. And then
            she reminded you of it again because we had a
            violation in court.     And that is just not
            allowed pursuant to the rules of evidence.
            Although it happened, although you may have
            observed it[,] the rules of evidence do not
            allow for you to talk about drug activity in
            a case such as this because he's not charged
            with possession of cocaine or possession of
            any drug for that matter.


                                   27                                 A-1653-14T1
[The prosecutor] explained to me, assured me
that she had spoken to you, [P.K.], and that
it would not happen again.

Yesterday we finished the trial early because
[P.K.] . . . requested a break and I allowed
her to take that break so she could compose
herself. She appear[ed] to be very upset. I
thought it best rather than continue for
another hour until 2:30 [p.m.] we would go for
the day.

Today there has been eight violations of that
court order.

I have her, I counted them, eight times the
victim today has mentioned either smoke, she's
been snorting on the witness stand, mimicking
what the defendant was doing which in no
uncertain terms is snorting cocaine or
something with a glass pipe. She did it at
least three or four times.

There [were] an additional three . . .
mention[s] of drug activity even before the
August 31, 2013 incident and then the last one
was the one we just heard where she said oh,
he's more concerned about his drugs. That's
what he was concerned about.

There's too many violations. I tried to cure
the problem with the jurors by giving them an
instruction to disregard it[,] but I cannot
do it anymore with eight violations.

I'm going to dismiss this half of the trial.
This part of the trial is dismissed with
prejudice.

     . . . .

It's only with regards to the counts involving
[P.K.].

     . . . .

                  28                             A-1653-14T1
               That would be count one, [second degree]
               possession of [a] weapon for [an] unlawful
               purpose. It would be count two, which is the
               . . . [third degree] terroristic threats. And
               it would be count three, which is [fourth
               degree] pointing of a firearm.      The other
               counts, however, are going to remain because
               those other counts have nothing to do with
               [P.K.].

               [(Emphasis added).]

     At first, the prosecutor objected to the judge's sua sponte

decision, arguing the curative instructions were sufficient to

counteract any prejudice.           The State also took the position that

there was "nothing improper" about the witness's comments that she

saw defendant blowing "a puff of smoke." The prosecutor maintained

the statement was ambiguous and permitted the jury to infer

defendant was smoking a cigarette.             Finally, the prosecutor again

argued   this     evidence    was   relevant       to   the   disorderly   persons

offense, which the judge would need to decide as the trier of

fact.

     The judge rejected these arguments and clarified that when

P.K. testified about seeing defendant blow a puff of smoke, she

"used    her    hands   to   explain     it   to   the   jurors"   and     "started

snorting."      The judge specifically found that from the "way [P.K.]

presented her hands, it's clear as though someone was using some

type of glass thing."         The judge ruled P.K.'s testimony in this

regard was improper for the same reasons "you can't bring out the

                                    29                                      A-1653-14T1
previous conviction."        The judge also emphasized that these were

not   isolated   mishaps     by   a   nervous   witness.       "She's   clearly

let[ting] the jurors know about the fact that the drug activity

is not just a one[-]time incident."             Based on this record, the

judge found that giving the jury further curative instructions

would   be   futile.    In    the     judge's   own   words,   "It's    now   too

prejudicial."

      The judge then addressed P.K. directly as follows:

             I wanted [P.K.] to be here to hear it.       I
             didn't want someone else explaining it to her.
             I wanted you to hear from me . . . the reasons
             the case is being dismissed.

             Perhaps you're very upset and for that reason
             you weren't able to follow the instructions
             of the [c]ourt but I tried. Eight times I let
             it go. I can't let it go after eight times.
             I wanted you to hear it from me.       You're
             excused.

      The judge advised defense counsel to inquire as to whether

defendant was willing to consider reopening plea negotiations

based on the court's decision to dismiss the first three counts

of the indictment with prejudice.          The prosecutor made clear that

the State was not willing to modify its previous plea offer based

on these events.       At this point, the court recessed for lunch.

At the start of the afternoon session, but outside the jury's

presence, the prosecutor addressed the trial judge as follows:

             PROSECUTOR:   Your Honor, I did go and meet
             with members of my office.
                               30                                       A-1653-14T1
I just would like to state that the State is
not sure and not in agreement that the [c]ourt
has the authority to dismiss those counts
before the end of the State's case.

     . . . .

THE COURT: It has nothing to do with the end
of the State's case.     It's a mistrial and
dismissal with prejudice for failure to follow
the court order.

PROSECUTOR: I understand.

THE COURT: It has nothing to do with the
strengths of the [State's] proofs[,] which is
a different standard.

PROSECUTOR: I understand.    However, and I'm
accepting your Honor's decision, but . . . the
reasons for the dismissal with prejudice were
because of . . . undue prejudice to this jury.

     . . . .

However, proceeding with this jury in light
of your Honor's decision is not the proper
remedy.   And the reason for that, if I may
say, if down the line this defendant is
convicted after this trial and raises the
conviction on appeal, one of his claims would
be that this jury, because of your Honor's
decision that there was undue prejudice, he
will raise that claim that this jury was
prejudiced.

Now, the State will not have a claim at that
point because your Honor has made that
decision.   We're asking for a mistrial[;]
dismiss this jury and let's start anew, get a
trial date with the remaining counts, certain
persons and the possession of an assault
weapon.

[(Emphasis added).]
                  31                             A-1653-14T1
     The judge denied the State's motion for a mistrial.       The

judge ruled that she was going to instruct the jury that the three

dismissed counts in the indictment "were dismissed pursuant to a

legal ruling" and that they had "nothing to do with the State [or]

the defense."   Defense counsel did not participate in this matter.

When the jury returned to the courtroom to start the afternoon

session, the judge apprised the jurors as follows:

          With regards to the indictment, if you
          recall[,] . . . there were six counts. Because
          of legal reasons, and the State has not been
          involved in this and neither has the defense,
          but I as the Judge for a legal reason have
          dismissed counts one, two[,] and three.

          We're going to proceed with the remainder of
          the case[,] which is the possession of the
          assault firearm, which is count nine, and the
          other two counts, five and six, [which] were
          possession of the large capacity ammunition
          magazine. So there's three counts. So when
          you deliberate you are not to consider any of
          the testimony that you've heard up until now.
          It will be stricken and you're not to consider
          it in any way in your deliberations. You can
          only consider the testimony that is going to
          start from this point forward because the
          testimony that's going to begin from this
          point forward has to do with those counts, the
          ammunition, [the] large capacity magazine[,]
          and the assault firearm.

          Call your next witness.

     The State's next and only witness was Fort Lee Detective

Matthew Traiger.    During his testimony, Traiger described the

firearms seized from defendant's residence pursuant to a search
                           32                           A-1653-14T1
warrant on September 1, 2013.               Traiger testified that when he

began his shift that day, he was ordered to respond to defendant's

residence to relieve an officer who was previously assigned to

conduct   "surveillance       on    the    home    in   an   unmarked   vehicle."

Traiger's    shift    began   at    4   p.m.      He    arrived   at   defendant's

residence    to   relieve     the   other       officer   approximately     thirty

minutes later.

     Although the jurors were instructed to disregard everything

they had heard over the past two days, Detective Traiger testified

that the purpose of conducting surveillance on defendant's home

"was a pending arrest and search warrant for a party in the

premises." When asked to identify "the party" in question, Traiger

responded: "Dean Bitzas."           Traiger then pointed to defendant and

identified him as the person he arrested that day after finding a

Norinco SKS assault firearm and two large capacity ammunition

magazines in his residence.             The State rested at the conclusion

of Detective Traiger's testimony.

                                          III

     Against this record, defendant raises the following arguments

on appeal:

            POINT I

            IT WAS AN ABUSE OF DISCRETION TO CONTINUE WITH
            THE SAME JURY AFTER THE DISMISSAL OF THE
            DOMESTIC     VIOLENCE     COUNTS    DUE     TO
            COMPLAINANT/VICTIM'S REPEATED TESTIMONY ABOUT
                              33                                           A-1653-14T1
          DEFENDANT'S PRIOR BAD ACTS RESULTING IN
          PREJUDICE TO THE DEFENDANT AND TAINTING OF THE
          JURY.

          POINT II

          THE COURT'S INSTRUCTION TO THE JURY FOLLOWING
          THE OTHER CRIME EVIDENCE WAS NOT SUFFICIENTLY
          PROPER AND DID NOT CURE THE PREJUDICIAL EFFECT
          FROM THE MINDS OF THE JURY.

     We begin our analysis by reaffirming that "'[a] trial judge

has the ultimate responsibility to control [a] trial[.]'"         State

v. Cusumano, 369 N.J. Super. 305, 311 (App. Div.) (quoting Horn

v. Vill. Supermarkets, Inc., 260 N.J. Super. 165, 175 (App. Div.

1992), certif. denied, 133 N.J. 435 (1993)), certif. denied, 181

N.J. 546 (2004).      A trial judge is entrusted with the sound

discretion to manage the conduct of a trial in a manner that

facilitates   the   orderly   presentation   of   competent   evidence,

whether in the form of physical exhibits or witness testimony made

under oath, subject to the laws of perjury.       The exercise of this

authority is circumscribed by the judge's responsibility to act

reasonably and within constitutional bounds.      Ryslik v. Krass, 279

N.J. Super. 293, 297–98 (App. Div. 1995).

     As we have long-recognized,

          The trial judge is the symbol of experience,
          wisdom and impartiality to the jury and, as
          such, must take great care that an expression
          of opinion on the evidence should not be given
          so as to mislead the jury. He must not throw
          his judicial weight on one side or the other.

                              34                                A-1653-14T1
             [State v. Zwillman, 112 N.J. Super. 6, 20–21
             (App. Div. 1970) (emphasis added), certif.
             denied, 57 N.J. 603 (1971).]

      Here, the record shows the judge was not mindful of these

admonitions.     On a number of occasions, the judge attempted to

control    P.K.'s     obstreperous       behavior    by   reprimanding     defense

counsel in the jury's presence.               The judge criticized defense

counsel for asking questions that "opened the door" for P.K. to

testify about areas or topics that the judge viewed as not germane

to the August 31, 2013 incident.             The judge also permitted P.K.

to   opine    when    the    prosecutor    objected       to   defense   counsel's

questions.      The record shows these failures were not isolated

incidents.      The    judge    frequently     did    not:     (1)   address   P.K.

directly; (2) order her to stop talking when an attorney objected;

or (3) instruct her to wait for the judge to rule on the objection

before responding.

      The judge's failure to exercise control first manifested

itself during the afternoon session of the first day of P.K.'s

testimony.     When defense counsel cross-examined P.K. about a trip

to   Greece    she    took     shortly     after    meeting     defendant,     P.K.

gratuitously stated that defendant and another woman, identified

here as N.M., "smoked crack together."                    When defense counsel

objected, the judge discussed the matter with the attorneys at

sidebar.     However, instead of formulating an appropriate response

                                   35                                      A-1653-14T1
with the input of counsel, the judge asked the prosecutor: "[D]id

you not inform your victim she can't talk about any prior bad acts

of the defendant?"      When the prosecutor responded that she had

spoken to P.K. about her testimony, the judge again shifted the

burden to the prosecutor to remind the witness. The judge believed

she was only responsible for giving a curative instruction to the

jury.

      The judge directed P.K. and the prosecutor to step outside

the courtroom.     The judge then instructed the jury to "disregard

completely"    P.K.'s   testimony      that    defendant   "was   using   crack

cocaine with some other individual by the name of [N.M.]."                 P.K.

and the prosecutor returned to the courtroom.               Thereafter, P.K.

took the witness stand and defense counsel resumed his cross-

examination.

      This event exemplifies the judge's misguided approach to

courtroom management.         Her role as the ultimate authority and

presiding judge in the trial required that she directly address

P.K. outside of the jury's presence. The judge should have sternly

and clearly instructed the witness that she should respond to the

questions without deliberately adding information prejudicial to

defendant.     The judge should have made equally clear that the

witness was testifying under the court's direction and control.

She   was   thus   expected    to     answer    all   questions   truthfully,

                                 36                                   A-1653-14T1
respectfully, and completely.               If a witness does not understand a

question, she should say so before attempting to respond.                          This

will provide an attorney with the opportunity to rephrase the

question, if possible.

      We recognize that victims of a crime have a right under our

Constitution to be "treated with fairness, compassion and respect

by the criminal justice system."               N.J. Const. art. I, ¶ 22.            The

Legislature also adopted the Crime Victim's Bill of Rights to

ensure, inter alia, that a crime victim is "free from intimidation,

harassment or abuse by any person[,] including the defendant or

any   other    person    acting   in     support    of     or   on   behalf   of   the

defendant, due to the involvement of the victim or witness in the

criminal justice process[.]"             N.J.S.A. 52:4B-36(c).

      However, when victims testify in a criminal trial, they are

subject   to    the     authority      of    the   judge    presiding     over      the

proceedings and must follow the judge's instructions. If a witness

is unwilling or unable to adhere to a trial judge's instructions

or the witness's courtroom conduct becomes so obstreperous that

it interferes with the orderly administration of the trial, the

judge has the authority and responsibility to take reasonable

measures to restore order, preserve the decorum and solemnity of

the proceedings, and protect the defendant's right to a fair trial.



                                    37                                        A-1653-14T1
      Here, the record shows P.K. repeatedly introduced extraneous

and prejudicial information that was calculated to cast defendant

as a dangerous individual.        The judge characterized what happened

in her courtroom as a "circus."                  The chaotic spectacle that

occurred here arose from the witness's disruptive behavior, the

defense attorney's inability to conduct an appropriate cross-

examination, and the trial judge's misunderstanding of her role

and responsibility to manage a contentious criminal trial.

      As former trial judges, we are keenly aware of the challenge

of   maintaining   order   in   a      courtroom    when   confronted    with    a

contentious witness.       To assist our trial colleagues who may

encounter similar circumstances, we suggest the following options.

When faced with a recalcitrant witness, a judge should address the

witness directly, but outside of the jury's presence.                The judge

should next identify the problem with particularity.                    Problems

include: (1) not allowing the attorney to finish the question; (2)

continuing to speak after an objection has been raised; (3)

unresponsive   answers;     (4)     providing       extraneous,     prejudicial

information;   and   (5)   arguing        with     the   attorney   asking    the

questions. Having identified the problem, the judge should clearly

and concisely explain to the witness that the conduct disrupts the

orderly presentation of the evidence to the jury and clashes with

the decorum and solemnity of the proceedings.

                                  38                                     A-1653-14T1
     If the witness does not respond to this approach, but instead

continues to disrupt the proceedings, as P.K. did here, the judge

should confer with counsel and seek their input outside of the

jury's presence.    Before acting, the judge must determine whether

the misconduct is willful, based on the judge's observations and

interactions with the witness.      If the judge finds the witness's

misconduct is willful, the judge should state the basis for this

finding on the record.       Thereafter, the judge can consider if

enjoining    the   witness   from   continuing   to   testify     is    a

constitutionally viable alternative by balancing defendant's right

to cross-examination and the State's right to present its case.

We emphasize that these are just suggestions.         The decision to

grant a mistrial "'to prevent an obvious failure of justice'"

always remains within the sound discretion of the trial judge.

State v. Smith, 224 N.J. 36, 47 (2016) (quoting State v. Harvey,

151 N.J. 117, 205 (1997)), cert. denied, 528 U.S. 1085, 120 S. Ct.

811, 145 L. Ed. 2d 683 (2000).

     However, the trial court must exercise its discretion to

declare a mistrial within the following analytical framework:

            To address a motion for a mistrial, trial
            courts must consider the unique circumstances
            of the case. State v. Allah, 170 N.J. 269,
            280 (2002); State v. Loyal, 164 N.J. 418, 435–
            36 (2000).     If there is "an appropriate
            alternative course of action," a mistrial is
            not a proper exercise of discretion. Allah,
            supra, 170 N.J. at 281.       For example, a
                              39                                A-1653-14T1
           curative instruction, a short adjournment or
           continuance, or some other remedy, may provide
           a viable alternative to a mistrial, depending
           on the facts of the case. See State v. Clark,
           347 N.J. Super. 497, 509 (App. Div. 2002).

           [Smith, supra, 224 N.J. at 47.]

     Applying this standard of review, we conclude the trial judge

abused her discretion in failing to declare a mistrial. The record

shows a pattern of undeterred transgressions by the State's key

fact witness.   The trial judge counted eight individual instances

in which this witness introduced irrelevant and highly prejudicial

information about defendant.       These were not isolated events.        The

witness was also highly combative with defense counsel.            The judge

failed to address the witness directly about her misconduct.

Instead, she reprimanded defense counsel in the jury's presence

for failing to ask a proper question.            The trial judge's conduct

severely prejudiced defendant.         As Justice Long noted:

           [I]n presiding over a jury trial, the judge,
           who holds a powerful symbolic position vis-a-
           vis   jurors,  must   maintain   a   mien  of
           impartiality and must refrain from any action
           that would suggest that he favors one side
           over the other, or has a view regarding the
           credibility of a party or a witness.

           [State v. O'Brien, 200 N.J. 520, 523 (2009).]

     Although the parties have repudiated the legal positions they

advanced   before   the   trial    court,   we    decline   to   allow   this

incongruity to determine the outcome here.           The integrity of our

                                  40                                 A-1653-14T1
criminal justice system and defendant's constitutional right to a

fair trial drive our analysis.    These principles lead us to one

conclusion: What occurred in this trial cannot stand.

     We make clear that the issue of double-jeopardy is not

addressed by this decision.    We nevertheless make the following

brief comments.   It is well-settled that "jeopardy attaches to a

defendant when he [or she] is put on trial in a court of competent

jurisdiction upon a valid indictment and a jury is impaneled and

sworn to determine the issue of his guilt or innocence of the

crime charged."   Allah, supra, 170 N.J. at 280.      But not every

mistrial implicates the double jeopardy clauses of the Fifth

Amendment of the United States Constitution, as applied to the

states by the Fourteenth Amendment, Benton v. Maryland, 395 U.S.

784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969), or

Article I, Paragraph 11 of the New Jersey Constitution.7

     Here, the trial judge sua sponte dismissed with prejudice the

first three counts in the indictment as a sanction against P.K.'s

disruptive behavior.   The judge did not have the authority to take

this action.   A judge presiding over a criminal jury trial cannot



7
  Although New Jersey's double-jeopardy clause has been described
as "textually narrower in scope," State v. Dunns, 266 N.J. Super.
349, 362 (App. Div.), certif. denied, 134 N.J. 567 (1993), "the
double-jeopardy protections provided in the State and federal
constitutions are essentially coextensive in application." Ibid.;
see also State v. Koedatich, 118 N.J. 513, 518 (1990).
                            41                            A-1653-14T1
enter a judgment of acquittal before the State has completed

presenting its case and without applying the standards the Supreme

Court established in State v. Reyes, 50 N.J. 454, 458–59 (1967);

see also R. 3:18-1.      "Only where the governmental conduct in

question is intended to 'goad' the defendant into moving for a

mistrial may a defendant raise the bar of double jeopardy to a

second trial after having succeeded in aborting the first on his

own motion."   State v. Gallegan, 117 N.J. 345, 358 (1989) (quoting

Oregon v. Kennedy, 456 U.S. 667, 676, 102 S. Ct. 2083, 2089, 72

L. Ed. 2d 416, 425 (1982)).

     There is no indication in the record that the judge considered

the double-jeopardy implications of her decision.      The parties

have not briefed whether a decision declaring a mistrial would bar

the State from trying defendant on the charges as originally

reflected in the indictment. The State also did not seek timely

appellate review of the judge's decision to dismiss with prejudice

the first three counts in the indictment.      We thus express no

opinion on this issue.

                                   IV

                              Conclusion

     The jury's verdict finding defendant guilty of second degree

possession of an assault firearm, N.J.S.A. 2C:39-5f, and fourth

degree possession of a large capacity magazine, N.J.S.A. 2C:39-

                              42                            A-1653-14T1
3j, is vacated.   The jury's verdict reached in the second phase

of the bifurcated trial, finding defendant guilty of five counts

of fourth degree possession of a handgun following a conviction

for possessing a controlled dangerous substance, N.J.S.A. 2C:39-

7a, is also vacated. The matter is remanded for retrial consistent

with this opinion.

     Reversed and remanded.    We do not retain jurisdiction.




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