                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-2692-12T1

STATE OF NEW JERSEY,
                                              APPROVED FOR PUBLICATION
      Plaintiff-Respondent,
                                                    December 15, 2015
v.
                                                APPELLATE DIVISION
RODNEY J. MILES, a/k/a
JAMAL D. ALLEN,

     Defendant-Appellant.
_______________________________________________________

             Submitted September 9, 2014 – Remanded October 14, 2014
             Resubmitted December 8, 2015 – Decided December 15, 2015

             Before Judges Fisher, Accurso and Manahan.

             On appeal from Superior Court of New Jersey,
             Law Division, Camden County, Indictment No.
             11-04-00786.

             Joseph E. Krakora, Public Defender, attorney
             for appellant (Brian P. Keenan, Assistant
             Deputy Public Defender, of counsel and on
             the brief).

             John J. Hoffman, Acting Attorney General,
             attorney for respondent (James C. Jones,
             Deputy Attorney General, on the brief).

      The opinion of the court was delivered by

MANAHAN, J.A.D.

      This   matter   returns   to   us   after      a   remand   to    the   Law

Division for a determination of the circumstances under which

the   initial   municipal   court    charge    of     simple   possession     was
amended to loitering, whether the prosecutor was involved in the

downgrade, and whether controlling decisions of law barred the

second prosecution.     State v. Miles, No. A-2692-12 (App. Div.

October 14, 2014) (slip op. at 8-10).            As we conclude, after

application of the "same evidence" test, that defendant's second

prosecution   was   barred   on   grounds   of    double   jeopardy,   we

reverse.

    We briefly set forth the facts and background from our

prior opinion:

                On October 15, 2010, defendant was
           arrested in the City of Camden during an
           undercover drug operation.      Defendant was
           charged   in    a   warrant   complaint   with
           possession   of   a    CDS  with   intent   to
           distribute on or near school property,
           N.J.S.A.   2C:35-7     and  N.J.S.A.    2C:35-
           5(b)(12).   Defendant was also charged in a
           summons   complaint    with   the   disorderly
           persons offense of possession of fifty grams
           or less of marijuana, N.J.S.A. 2C:35-10(a).
           It is undisputed that these charges arose
           from the same course of conduct.

                On April 4, 2011, the grand jury
           returned an indictment charging defendant
           with fourth-degree possession of a CDS with
           intent   to   distribute,  N.J.S.A.   2C:35-
           5(b)(12), and third-degree possession of a
           CDS with intent to distribute within 1,000
           feet of school property, N.J.S.A. 2C:35-7.
           On September 14, 2011, defendant appeared
           pro   se  in   municipal  court   via  video
           conference from the county jail.1   Prior to
           that proceeding, the disorderly persons
           offense of possession of a CDS was amended
           to the offense of loitering to possess
           marijuana, N.J.S.A. 2C:33-2(b)(1).       The



                                   2                            A-2692-12T1
following colloquy took     place   between      the
judge and defendant:

         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   child
    support, sir.

    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.




                       3                               A-2692-12T1
     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.

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

A.   No, sir.

     Q.   Do    you       wish   to    have    a
trial?

A.   No, sir.

     Q.   Do you          want    to     plead
guilty today?

A.   Yes, sir.

     Q.   Are you pleading guilty
because you are guilty?

A.   Yes, sir.

     Q.   Are         you        doing        it
voluntarily?

A.   Yes, sir.

     Q.   What's your plea to the
charge, sir, guilty or not guilty?
A.   I plead guilty, sir.

     Q.   Did    you loiter to
possess marijuana at 27th and
Washington Street in Camden on
October 15, 2010?

A.   Yes, I did, Your Honor.




                      4                            A-2692-12T1
                      Q.  Factual   basis,    plea,
                finding of guilty will be entered.
                $500 fine, $30 costs, $50 Violent
                Crime    penalty,     $75    [S]afe
                [N]eighborhood    and     [S]treet.
                Camden on or before December 6,
                9:30 a.m., $25 a month. Okay?

                A.     Yes, Your Honor.

                       Q.   Thank you.

              Defendant    moved    to    dismiss   the
         indictment   on   double   jeopardy   grounds.
         Defendant argued in support of the motion
         that double jeopardy existed because he pled
         guilty to an offense that was related to the
         same conduct.    The judge denied the motion
         finding the second prosecution was not
         barred   because    it   required   additional
         proofs.

         ________
         1During the course of the video conference,
         defendant admitted that he uses Rodney Miles
         as an alias but that David Allen is "his
         real name." Defendant was incarceratedon an
         unrelated charge related to nonpayment of
         child support.

         [Miles, supra, slip op. at 1-4.]

    Defendant also entered a conditional plea to count two of

the indictment.      Pursuant to the plea bargain, he was sentenced

to probation.     Defendant appealed the judge's denial of the




                                  5                        A-2692-12T1
motion to dismiss the indictment,1 and we remanded for further

proceedings.       Miles, supra, slip op. at 10.

       During the remand hearing, the prosecutor informed the Law

Division     judge    that    when    municipal        charges     are       pending      that

arise out of the same event as did these criminal charges, "we

ask    the   municipal       court    not   to    go     forward,       we    pull     those

complaints up to our office."               Despite this procedure, there was

no    information     provided       by   the    State    at     the    remand    hearing

whether in this case the disorderly persons charge was "pulled"

or, if it had been, why it remained in the municipal court

system.      The     prosecutor      represented         that    in    this     case,      his

office did not appear in municipal court nor was his office

notified of the proceeding.               At the conclusion of the hearing,

the judge determined that the prosecutor played no role in the

downgrade of the municipal court charge.

       The judge further held there was no basis to find that

defendant     "did    not    understand         that   the      serious      offense"       of

violating     the     school-zone         statute      "would         continue       to     be

prosecuted, notwithstanding the efforts of the municipal court

judge, who was attempting to expedite [defendant's] release from

incarceration."        He determined that the second prosecution was

1
  The conditional plea preserved defendant's right to appeal from
the adverse determination of the pretrial motion pursuant to
Rule 3:9-3(f).



                                            6                                     A-2692-12T1
not   precluded      by    notions     of       fundamental   fairness,       because

defendant "was fully cognizant" of the pending Superior Court

proceedings "in light of his several appearances" in Superior

Court on those charges.

      Defendant      argues    that    the       State   either    implicitly        or

explicitly consented to the amendment of the municipal charge

and, because of its involvement, there is no basis to preclude a

finding that double jeopardy barred further prosecution based on

the "same conduct."           Defendant further argues the doctrine of

fundamental fairness should bar further prosecution, since the

transcripts    demonstrate       he     "in       fact   believe[d]"      that      his

municipal plea resolved the matter, and that his belief was

reasonable because he was "firmly told" by the court "that the

matter was in fact before the municipal court for adjudication."

      The   State    argues     that    double       jeopardy     did   not    attach

because the municipal court's unilateral amendment of the charge

"amounts to a legal nullity."           The State further argues that the

municipal    court    no    longer     had       jurisdiction     to    process     the

municipal complaint upon defendant's indictment.2




2
  During the remand hearing, it was noted that it is a regular
practice for the municipal court judge conducting the "video"
hearing to sua sponte downgrade charges in an effort to resolve
the open charges and effectuate the release of a defendant.



                                            7                                 A-2692-12T1
      The State also argues that the record supports the                        Law

Division judge's decision that the second prosecution was not

precluded by principles of fundamental fairness, as there was no

evidence of harassment or oppression by the State.                 Further, the

State contends that defendant could not have reasonably expected

that the original plea offer of five years' imprisonment with a

fifteen-month parole disqualifier could be resolved by a $500

fine, and points out that defendant appeared in Superior Court

on the indictable charges five times, including the day before

the municipal court date.

                                    I.

      Actions taken by a municipal court on matters beyond its

jurisdiction are a legal nullity that cannot form the basis for

a later plea of double jeopardy.              State v. Le Jambre, 42 N.J.

315, 319 (1964).      Here, defendant was not charged in municipal

court with a crime.        Defendant was charged with the possession

of less than fifty grams of marijuana in violation of N.J.S.A.

2C:35-10(a)(4), which specifies that possession of that quantity

of   marijuana   is   a    disorderly       persons   offense.       Disorderly

persons   offenses,   as    designated       by   statute,   are    not    crimes

within the meaning of the New Jersey Constitution.                     N.J.S.A.

2C:1-4(b).   They afford no right to indictment or trial by jury,

and conviction of such an offense may not "give rise to any




                                        8                                 A-2692-12T1
disability    or     legal   disadvantage     based   on   conviction    of    a

crime."      Ibid.      The statutory jurisdiction of the municipal

court includes disorderly persons offenses.            R. 7:1.

      Although the municipal court judge misunderstood the status

of   defendant's     drug-related   charges     pending    in   the   Superior

Court, we reject the State's argument that the return of the

indictment deprived the municipal court of jurisdiction over the

disorderly persons offense.         See State v. Labato, 7 N.J. 137,

151 (1951) (prosecutor's objection to proceeding on disorderly

persons offense in former city police court did not deprive the

police    court    of   jurisdiction   over    that   offense,    even    when

indictment on the same facts was returned two weeks after the

conviction).

                                    II.

      Rule 3:15-3 states:

            (a)   Joinder of Criminal Offense and Lesser
            Related Infraction.

                   (1)      Except  as   provided  in
                   paragraph (b), 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.

                   . . . .

            (c) Consequence of Failure to Join. In no
            event shall failure to join as required in
            paragraph  (a)  be  deemed  to   constitute



                                       9                              A-2692-12T1
               grounds for barring a subsequent prosecution
               of the complaint except as required by
               statute   or   by  the   Federal  or   State
               Constitutions.

     It    is       without     dispute        that   defendant's        municipal         court

charge     was      required        to    be    joined      and    resolved        with       his

indictable offenses then pending in Superior Court.                                 This did

not occur for reasons that, even after remand, remain unclear.

However, as the Rule states, defendant's conviction in municipal

court of a disorderly persons offense did not bar subsequent

prosecution on the indictable unless that prosecution was barred

by   constitutional           protections         such      as    the    Double       Jeopardy

Clause.

                                               III.

     Defendant's principal argument is that his "school-zone"

conviction was barred on double jeopardy grounds.                                 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

parallel       provision      in    the    State      Constitution           is   Article      I,

paragraph        11,    which       provides:         '[n]o      person       shall,       after

acquittal, be tried for the same offense.'"                             State v. DeLuca,

108 N.J. 98, 102, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98

L. Ed. 2d 358 (1987).




                                                10                                      A-2692-12T1
    When     reviewing      double   jeopardy   claims,      the   issue    is

"'whether    the   second    prosecution   is   for    the    same   offense

involved in the first.'"        State v. Yoskowitz, 116 N.J. 679, 689

(quoting DeLuca, supra, 108 N.J. at 102).             In State v. Salter,

425 N.J. Super. 504, 518-19 (App. Div. 2012), we explained:

                 The longstanding rule for determining
            whether a second prosecution is for the
            "same offense" was expressed in Blockburger
            v. United States, 284 U.S. 299, 52 S. Ct.
            180, 76 L. Ed. 306 (1932).     In that case,
            "[t]he Court stated that 'where the same act
            or transaction constitutes a violation of
            two distinct statutory provisions, the test
            to be applied to determine whether there are
            two offenses or only one, is whether each
            provision requires proof of an additional
            fact which the other does not.'"

                 . . . [O]ur Supreme Court slightly
            expanded the analysis, noting that the
            question is "whether the evidence actually
            used to establish guilt in the first
            prosecution is identical to that that will
            be used in the second prosecution." . . .
            "[I]n DeLuca, the Court 'established that a
            second prosecution will be barred if either
            the "elements" test or the "evidence" test
            is satisfied.'"   "If the same evidence used
            in the first prosecution is the sole
            evidence in the second, the prosecution of
            the second offense is barred."

            [(internal citations omitted).]

    The protections against double jeopardy afforded by the New

Jersey Constitution are co-extensive with those guaranteed by

the Federal Constitution.        State v. Schubert, 212 N.J. 295, 304

(2012).       Three      separate     constitutional      safeguards       are



                                     11                              A-2692-12T1
incorporated    within   its    protections:   "It    protects    against    a

second prosecution for the same offense after acquittal.                    It

protects against a second prosecution for the same offense after

conviction.     And it protects against multiple punishments for

the same offense."       State v. Dively, 92 N.J. 573, 578 (1983)

(quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct.

2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969)).

    Here,     the   factual    scenario   presented   and   the   applicable

statute implicates the protection against a second prosecution

after conviction as well as whether multiple punishments may be

imposed for the same offense.

    We commence our discussion by addressing the school-zone

statute.    N.J.S.A. 2C:35-7(a) and (c) state in relevant part:

           a. Any person who violates subsection a. of
           [N.J.S.A.]    2C:35-5    by    distributing,
           dispensing or possessing with intent to
           distribute a controlled dangerous substance
           or controlled substance analog while on any
           school property used for school purposes
           which   is  owned  by  or   leased  to   any
           elementary or secondary school or school
           board, or within 1,000 feet of such school
           property or a school bus, or while on any
           school bus, is guilty of a crime of the
           third degree and shall, except as provided
           in [N.J.S.A.] 2C:35-12, be sentenced by the
           court to a term of imprisonment. Where the
           violation involves less than one ounce of
           marijuana, the term of imprisonment shall
           include the imposition of a minimum term
           which shall be fixed at, or between, one-
           third and one-half of the sentence imposed,
           or one year, whichever is greater, during



                                     12                             A-2692-12T1
            which the defendant shall be ineligible for
            parole. . . .

                      . . . .

            c. Notwithstanding     the   provisions    of
            [N.J.S.A.] 2C:1-8 or any other provisions of
            law, a conviction arising under this section
            shall not merge with a conviction for a
            violation of subsection a. of [N.J.S.A.]
            2C:35-5   (manufacturing,   distributing   or
            dispensing) or [N.J.S.A.] 2C:35-6 (employing
            a juvenile in a drug distribution scheme).

       New Jersey applies a two-part test for determining whether

multiple    punishments          constitute      double   jeopardy.         State    v.

Maldonado, 137 N.J. 536, 580 (1994).                   First, the court should

determine       whether    the    Legislature      intended    that     a   defendant

incur multiple punishments for the conduct.                   Ibid.    Next, if the

legislative intent is unclear, the court will proceed to apply

the test set forth in Blockburger, supra, 284 U.S. at 304, 52 S.

Ct. at 182, 76 L. Ed. at 309.              Ibid.

       In State v. Dillihay, 127 N.J. 42, 50-52 (1992), the Court

held    that      double        jeopardy      principles      preclude      multiple

punishments for a defendant convicted of both N.J.S.A. 2C:35-5

(Section    5    offenses)       and,    also,   for   the   crime     of   violating

N.J.S.A. 2C:35-7 (Section 7 offenses) based on the fact that the

Section 5 offense occurred in a school zone.                     The anti-merger

provision        of    N.J.S.A.         2C:35-7(c)     allowed        for   multiple

convictions on both statutes.               Dillihay, supra, 127 N.J. at 50-




                                           13                                A-2692-12T1
52.    However, it was held that the two offenses were "the same"

under the Blockburger test "because the State must prove all

elements of Section 5 offense in order to establish a violation

of Section 7," and the Section 5 offense does not require proof

of any additional facts required to establish the school-zone

offense.     Id. at 51.

       The Court determined that, although convictions for first

and second-degree crimes based on violations of N.J.S.A. 2C:35-5

must merge into a third-degree crime for violating the school-

zone   statute,   a    defendant    convicted       of    a   drug   offense    in   a

school zone must be "sentenced to no less than the mandatory

minimum sentence provided in the school-zone statute."                         Id. at

55.    That result would reflect the Legislature's clear intent to

impose an enhanced punishment upon defendants whose violations

of Section 5 occur in a school zone.              Ibid.

                                            A.

       In   pleading   to   the    amended       disorderly     persons   offense,

defendant admitted that he "loiter[ed] to possess marijuana."

In his Superior Court plea to violation of N.J.S.A. 2C:35-7, he

admitted he possessed the drug with the intent to distribute it,

in violation of N.J.S.A. 2C:35-5(b)(12).

       Pursuant to Dillihay, the original fourth-degree predicate

charge of violating N.J.S.A. 2C:35-5(b)(12) would have merged




                                       14                                  A-2692-12T1
with his conviction for the Section 7 offense.                                Therefore, had

he been convicted of both indictable offenses, he could have

been subjected only to a single punishment.                              Moreover, had he

been convicted in municipal court of the original disorderly

offense with which he was charged, his conviction for N.J.S.A.

2C:35-7    would      have    been     barred     by    the       same    double    jeopardy

principles that require merger of Section 5 offenses with the

Section 7 school-zone crimes.

    In     application         of    the     Blockburger          "elements"       test,    we

conclude    the      school-zone       crime      and   the       loitering      offense   to

which defendant pled guilty are not the same offense for purpose

of double jeopardy because they each contain different elements

from the other.            The loitering statute penalizes persons who

loiter    in   a     public    place       for    the   purpose          of    obtaining   or

distributing       drugs      and    who    exhibit     conduct          manifesting     that

purpose.       N.J.S.A. 2C:33-2.1(b).               Section (c) of the statute

emphasizes that an essential element of the offense is that the

conduct occur in a public place.                    N.J.S.A. 2C:33-2.1(c).                 The

statute    describes         conduct       that   "may"      be    deemed       adequate   to

establish      the     defendant's          purpose     in        loitering,       including

repeated: (1) beckoning or stopping motorists or pedestrians "in

a public place"; (2) passing or receiving objects from motorists

or pedestrians "in a public place"; or (3) circling in a motor




                                             15                                     A-2692-12T1
vehicle and passing or receiving an object from a person "in a

public place."     Ibid.

    A conviction under N.J.S.A. 2C:35-7 requires proof that the

violation    occurred       in   a   school    zone   as     an   element      of   the

offense.      State    v.    Baynes,    148    N.J.   434,    449      (1997).      The

elements    of   the   crime     are:   "(1)    possession        of   a    controlled

dangerous substance, (2) with the purposeful or knowing intent

to distribute the substance, and (3) within 1000 feet of any

school property."       State v. Gregory, 220 N.J. 413, 420 (2015).

    In contrast, the loitering statute does not require as an

element of the offense that the possession or distribution of

drugs occurred in a public place within a school zone.                       Although

it is an affirmative defense to prosecution under the school-

zone statute if the prohibited conduct took place entirely in a

private residence, that defense applies only when, at the time

it occurred, no one younger than seventeen years old was present

and the offense did not involve distribution or possession with

intent to distribute or dispense a drug for profit.                          N.J.S.A.

2C:35-7(e).      The distribution or sale for profit of drugs in a

private    residence    located      within    a   school     zone     is   generally

prohibited under the statute.           N.J.S.A. 2C:35-7.

    Defendant's conviction under N.J.S.A. 2C:35-7 also required

as an element of the crime that he possessed the drugs with the




                                        16                                    A-2692-12T1
intent to distribute them.         N.J.S.A. 2C:35-7(a). This element is

not required for conviction of the disorderly persons offense of

loitering in a public place.         N.J.S.A. 2C:33-2.1.

     Accordingly, we conclude the "elements" test does not bar

defendant's second prosecution.

                                           B.

     In determining whether a successive prosecution would be

barred, New Jersey courts have also applied the "same evidence"

test.   DeLuca, supra, 108 N.J. at 108-09; Yoskowitz, supra, 116

N.J. at 689-92.3     Under the "same evidence" test, as expressed by

the United States Supreme Court in Illinois v. Vitale, 447 U.S.

410, 100 S. Ct.          2260, 65 L. Ed. 2d 228 (1980), the Double

Jeopardy clause will preclude a later prosecution of a greater

offense where a defendant already has been convicted of a lesser

offense:    (1)   when    "the   lesser-included   offense   require[d]   no

proof beyond that required in the greater offense," and (2)

"also the proof of the greater offense must establish the lesser

offense."    Dively, supra, 92 N.J. at 581.          The "same evidence"

test may be applied to determine if a defendant's guilty plea

3
  The motion judge mistakenly referred to the Blockburger "same
elements" test as the "same conduct" test.      The term "same
conduct" test is generally used to mean the alternative to
Blockburger, also called the "same evidence" test.   See, e.g.,
United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L.
Ed. 2d 556 (1993); State v. Colon, 374 N.J. Super. 199, 206
(App. Div. 2005).



                                      17                           A-2692-12T1
precludes a second prosecution based on the same evidence that

supported the plea to the first offense.                      State v. Hand, 416

N.J. Super. 622, 629 (App. Div. 2010).

       Here, the "evidence" that defendant violated the school-

zone statute was based on the allegation that he was located at

27th and Washington Streets when he possessed the marijuana with

the intent to distribute it and that location was within 1000

feet of a school.           Although defendant did not admit to his

location in his plea to the indictable offense, proof of his

location was evidence required to prove the crime.

       The defendant's location in a public place was the same

evidence required to find him guilty of the disorderly persons

offense of loitering.           Since proof of defendant's location was

critical to a conviction for both charges, the proof relied on

by the State to establish defendant's conviction for possession

within a school zone would also establish his violation of the

loitering    statute.       Defendant's       conviction       on   the   loitering

statute required no proof beyond that.                  Therefore, applying the

same    evidence     test       would   preclude        defendant's       subsequent

prosecution under N.J.S.A. 2C:35-7.

       We   note   that    in    1993   the   United     States     Supreme    Court

rejected     the   "same    evidence"     test     as    an    alternate     to   the

Blockburger test.         Dixon, supra, 509 U.S. at 703-12, 113 S. Ct.




                                         18                                 A-2692-12T1
2859-64, 125 L. Ed. 2d at 572-78 (overruling Grady v. Corbin,

495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), and its

antecedents, which included Vitale, supra, 447 U.S. at 410, 100

S. Ct. at 2260, 65 L. Ed. 2d at 228).

      In Colon, supra, 374 N.J. Super. at 206, we recognized that

the test had been "repudiated by Dixon."                       However, we "declined

to    find,     in     the    absence       of     dispositive    precedent        to    the

contrary,       that     the       'same     [evidence]'       test     was   no     longer

applicable to a determination of double jeopardy under the New

Jersey Constitution."              Ibid.

      Similarly, in State v. Capak, 271 N.J. Super. 397, 402-04

(App. Div.), certif. denied, 137 N.J. 164 (1994), we recognized

Dixon's       holding,       and    noted        that    New   Jersey    constitutional

protections are co-extensive with federal protections.                             Despite

that recognition, we stated, "to the extent DeLuca and Yoskowitz

may   be   understood        to     embody    state      constitutional       principles,

until our Supreme Court holds otherwise," we would continue to

apply the "same [evidence]" test.                        Id. at 403.      Further, this

court hewed to that position when we applied the "same evidence"

test in Hand, supra, 416 N.J. Super. 627-31.

      This court, however, has also declined to apply the "same

evidence" test in light of Dixon.                       See State v. Kelly, 406 N.J.

Super. 332, 350 (App. Div. 2009) (rejecting defendant's double




                                              19                                   A-2692-12T1
jeopardy arguments, in part, because they were based on Grady v.

Corbin, which was overruled by the United States Supreme Court

in Dixon), aff'd on other grounds, State v. Kelly, 201 N.J. 471

(2010); State v. Ellis, 280 N.J. Super. 533, 550 (App. Div.

1995) (declining to apply "same evidence" test from Grady v.

Corbin because it had been overruled).

    In     reaching     our   determination,     we   adopt   the    rationale

utilized   in   Hand,    supra,   416    N.J.   Super.   at   631,   where   we

rejected the "more restrictive approach" of Dixon:

                 As an intermediate appellate court, we
            are therefore confronted with the difficult
            determination of whether to adhere to the
            Court's existing interpretation of federal
            and state double jeopardy protections, set
            forth in [Yoskowitz, supra, 116 N.J. at
            563,]   DeLuca    and   Dively,   or   without
            significant precedent to suggest that the
            Court    would   narrow    or   restrict   the
            flexibility of its view of double jeopardy
            to accord with newly-established federal
            constitutional law, to forecast that it
            would do so in a state constitutional
            context.    We find the latter course to be
            presumptuous, and, accordingly, follow Capak
            in holding that such a determination must be
            made by the Supreme Court, not by us.       We
            accordingly view defendant's proofs in light
            of the "same [evidence]" test in determining
            whether state constitutional proscriptions
            against double jeopardy have been violated.

            [(quoting Colon, supra, 374 N.J. Super. at
            216).]




                                        20                            A-2692-12T1
                                          C.

    The        State    argues     that    its      lack   of   involvement     in    the

municipal       court    proceedings       militates       against    a     finding    of

double    jeopardy       on    fundamental          fairness    grounds.4    First,    we

disagree that prosecutorial involvement in the proceedings is

requisite to such a finding.                   Second, while it may be that the

State    had    no     knowledge     of   the       proceedings    that    resulted    in

defendant's municipal court plea, the State should have been

aware that a disorderly persons offense based upon the same

conduct had been lodged against the defendant.                            Yet, even on

remand, the State could offer no explanation why the offense was

not joined with the indictable charges.                    The failure to join the

offense    resulted       in   the    offense's        amendment     and    disposition

through a municipal court process of which the State was aware,

even if the prosecutor was not noticed for the proceeding in

question.

    The procedure that allowed the municipal court to amend the

charges produced an unfair outcome for defendant.                          As we noted,


4
   In regard to its applicability to either party, fundamental
fairness has been held to be a "settled repository of rights of
the accused." State v. Abbati, 99 N.J. 418, 430 (1985). Even
if we harbored doubts about whether the doctrine of fundamental
fairness may be invoked by other than the accused, we need not
decide that question because we conclude that the doctrine — if
considered here from the State's point of view — does not
warrant the outcome the State has urged.



                                               21                              A-2692-12T1
a plea to the original charge of possession as a lesser-included

offense    would      have    resulted       in    the       unequivocal     bar    of    the

indictable charges.

      Additionally, we disagree that defendant should have known

his   municipal       court     plea    was       not    intended      to    resolve      the

indictable charges.           A fair reading of the transcript evinces

defendant's efforts to inform the municipal court judge of the

Superior Court charges.              At worst, the uncounseled defendant was

misled    and,   at     best,    defendant         was       understandably       confused.

Through no fault of his own he accepted the plea offered by the

municipal court judge and was sentenced.

      Notwithstanding           our    determination            on     the       issues    of

prosecutorial involvement, fairness and notice to defendant, we

conclude that "fundamental fairness" would not bar the second

prosecution.

      The fundamental fairness doctrine derives from an implied

judicial authority to create appropriate and just remedies and

to assure the efficient administration of the criminal justice

system.       Abbati,        supra,     99    N.J.       at     427.        It    has     been

"extrapolated         from      or     implied          in     other     constitutional

guarantees"      that     nevertheless            are    insufficient        to     protect

individual defendants harassed by arbitrary government action.

Doe v. Poritz, 142 N.J. 1, 109 (1995) (quoting Yoskowitz, supra,




                                             22                                     A-2692-12T1
116 N.J. at 731 (Handler, J., dissenting)).                        The doctrine has

been applied when "[s]omeone was being subjected to potentially

unfair    treatment       and     there    was    no     explicit     statutory     or

constitutional protection to be invoked."                  Ibid.

       Our Supreme Court has cautioned that the doctrine is to be

applied "sparingly" to the most compelling circumstances where,

in the absence of judicial intervention, a defendant will be

subject       to   oppression,     harassment      or     egregious      deprivation.

State v. Saavedra, 222 N.J. 39, 67 (2015); State v. Miller, 216

N.J. 40, 71-72 (2013), cert. denied, ___ U.S. ___, 134 S. Ct.

1329, 188 L. Ed. 2d 339 (2014); Yoskowitz, supra, 116 N.J. at

712.     It has been applied only in the clearest of cases.                         See

State    v.    Maisonet,    166    N.J.    9,    13-21    (2001)    (defendant      was

forced to appear for a jury trial over several days in a dirty

and    disheveled     condition        having   been     denied    access   to   soap,

running water, toothpaste or a comb); Doe, supra, 142 N.J. at

108-09    (the      doctrine      of    fundamental      fairness     required      the

institution          of     procedural          protections         to      determine

classification of convicted sex offenders will be subject to

community      supervision      and     notification      provisions);      State   v.

Tropea,       78   N.J.    309,    311-16       (1978)    (fundamental       fairness

precluded remand for retrial when State has failed to introduce

evidence of essential element of proof); State v. Baker, 310




                                           23                                A-2692-12T1
N.J.   Super.   128,   138   (App.   Div.   1998)   (fundamental   fairness

precluded State from seeking death penalty based on deliberate

prosecutorial misconduct in seizing juror notes and releasing

them to the press after conviction but before penalty phase had

commenced), certif. denied, 174 N.J. 192 (2002).

       Had we been required to decide the applicability of the

fundamental fairness doctrine as essential to the resolution of

this appeal, we would conclude that the facts presented do not

qualify as the type of indisputably unfair circumstances that

have garnered judicial support for application of the doctrine.

       Reversed.




                                     24                            A-2692-12T1
