                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5953-13T3

STATE OF NEW JERSEY,
                                           APPROVED FOR PUBLICATION
     Plaintiff-Appellant,                       June 22, 2015

v.                                           APPELLATE DIVISION

DATRELL T. WILLIAMS,

     Defendant-Respondent.

________________________________________________________________

         Argued March 23, 2015 – Decided June 22, 2015

         Before    Judges        Lihotz,     Espinosa      and
         Rothstadt.

         On appeal from Superior Court of New Jersey,
         Law Division, Cape May County, Indictment
         No. 13-07-0671.

         Gretchen A. Pickering, Assistant Prosecutor,
         argued the cause for appellant (Robert L.
         Taylor,   Cape   May    County   Prosecutor,
         attorney; Ms. Pickering, of counsel and on
         the brief).

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

     The opinion of the court was delivered by

ESPINOSA, J.A.D.

     After   concluding   that   a   prosecution    was   not    barred   by

either double jeopardy or the mandatory joinder rule, the trial
court dismissed an indictment with prejudice against defendant,

relying upon the "doctrine of fundamental fairness and equitable

treatment."      We agree with the trial court that prosecution of

the cocaine charges was not barred by double jeopardy or the

mandatory     joinder     rule,   N.J.S.A.   2C:1-8(b)       and    R.    3:15-1(b).

The question presented by the State's appeal is whether, under

the   facts    of    this     case,    the   rarely       applied      doctrine     of

fundamental     fairness     is   properly   relied       upon    to   protect    the

defendant from oppression and harassment.                 We conclude that the

application of the doctrine here was a mistaken exercise of

discretion and reverse.

                                        I.

      Although      the    mandatory   joinder     rule    does     not    apply,    a

review of its origin and application provides helpful background

for our consideration of the issue on appeal.                    The rule had its

origin in State v. Gregory, 66 N.J. 510 (1975).                          The Supreme

Court announced the adoption of a rule that would conform to

Section   1.07(2)     of    the   American   Law   Institute's         Model   Penal

Code, which provides that "a defendant shall not be subject to

separate trials for multiple offenses based on the same conduct

or arising from the same criminal episode where the prosecuting

attorney knows of the offenses when he begins the first trial




                                        2                                   A-5953-13T3
and the offenses are within the jurisdiction of the court."                                 Id.

at 519 (internal quotation marks omitted).

     In    State       v.   Yoskowitz,         116       N.J.   679    (1989),   the    Court

identified the four criteria a defendant must satisfy in order

to invoke the mandatory joinder rule: "(1) the multiple offenses

are criminal; (2) the offenses are based on the same conduct or

arose from the same episode; (3) the appropriate prosecuting

officer    knew    of       the    offenses         at    the   time    the    first    trial

commenced; and (4) the offenses were within the jurisdiction and

venue of a single court."               Id. at 701.

                                               II.

     The facts are undisputed.                       On August 20, 2011, defendant

was a passenger in a vehicle that was stopped in Upper Township.

After searching the vehicle, officers found a large quantity of

marijuana in the trunk.                Defendant was arrested and, on April 3,

2012, was charged in Indictment No. 12-04-0238, with one count

of   third-degree           possession         of        marijuana      with     intent     to

distribute, N.J.S.A. 2C:35-5(a)(1).                         In March 2013, defendant

pled guilty to this charge pursuant to a plea agreement in which

the prosecution agreed to recommend a non-custodial period of

probation.        On    May       3,   2013,    defendant        was    sentenced      to   two

years' probation and a twelve-month suspension of his driver's

license.     The probation was to run concurrent with a two-year




                                                3                                   A-5953-13T3
term   of    probation      already          imposed        upon   defendant      on   another

indictment.

       On   May     14,    2013,       just   eleven        days   after    defendant        was

sentenced on Indictment No. 12-04-0238, defendant was arrested

in Upper Township on a warrant charging him with possession and

distribution of cocaine.                 The charges were based upon sales he

made to Detective Steve McCullen, an undercover officer employed

by the Cape May County Prosecutor's Office, of 1.85 grams of

cocaine on August 9, 2011, in Dennis Township, and 6.588 grams

of cocaine on August 19, 2011, in Upper Township.                                 Those sales

formed the basis for two counts of third-degree distribution of

cocaine, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3), charged

against him in Indictment No. 13-07-0671.

       Defendant      filed        a    motion         to    dismiss    the       indictment.

Defense counsel argued that all the charges against defendant

arose from conduct during August 2011 and that in entering his

guilty      plea,    defendant         had    a       reasonable    expectation        he    was

resolving all criminal matters against him in Cape May County.

Citing Gregory and State v. James, 194 N.J. Super. 362 (App.

Div. 1984), counsel asked the court to find the charges arose

from the same criminal episode and that the charges relating to

the    undercover         sales    should         be     dismissed     as     a    matter      of

fundamental fairness.




                                                  4                                    A-5953-13T3
       The State argued the charges in Indictment No. 13-07-0671

were wholly unrelated to the earlier charge that was the subject

of the plea agreement.       Although conceding the State was charged

with knowledge of the undercover sales, the assistant prosecutor

stated the prosecutor's office was unaware of the August 2011

undercover sales when defendant was sentenced under Indictment

No. 12-04-0238, and did not have a responsibility to check for

outstanding charges.         Noting "plea agreements . . . [do not]

encompass every single criminal activity that [a defendant has]

committed up until that point," the prosecutor argued it would

impose an unreasonable burden to require the State to canvas all

investigating      authorities   to   determine    whether   there    are   any

open   files   against   a   defendant    before    entering   into    a    plea

agreement.     Addressing the nearly two-year delay in bringing the

charges,     the   prosecutor    responded   that    the     delay    was   not

uncommon and noted the charges were brought well within the

statute of limitations, N.J.S.A. 2C:1-6(b)(1).               The prosecutor

also explained the reason for delaying the filing of charges

arising from an undercover operation:

           [A]n   undercover  officer  like   Detective
           Mc[C]ullen . . . once they charge someone he
           can never be used as an undercover officer
           in Cape May County again.       It will not
           happen. And so generally a year goes by.




                                      5                               A-5953-13T3
      In    response    to    a     directive   from    the    trial    court,      the

prosecutor's office provided a certification after the hearing

explaining the reason for the delay in charging defendant.                          The

certification stated the investigation was initiated in August

2011 and "remained active" until April 2013 in "an effort to

reach 2nd degree weight."             The prosecutor's office had to close

the   investigation      after      Detective    McCullen      resigned      in   April

2013 because he was the only undercover officer in contact with

defendant.

      The     trial     judge     rendered      an   oral      decision      granting

defendant's motion and dismissing Indictment No. 13-07-0671 with

prejudice.     As we have noted, she did not find the prosecutor's

office acted with malice.              She also determined neither double

jeopardy    nor   the    mandatory      joinder      rule     applied   to    require

dismissal of the indictment.            Citing Gregory, the judge stated,

             The   doctrine    of   fundamental   fairness
             protects   a   defendant   from  governmental
             harassment   and   oppression   by   multiple
             prosecution for the same wrongful conduct.
             . . . The fundamental fairness doctrine in
             the context of double jeopardy is based upon
             the reasonable expectation of the parties.

      However, the judge found that Gregory was distinguishable.

She   found    further       that     defendant's      case    "clearly      involved

different episodes."




                                          6                                   A-5953-13T3
    The trial judge acknowledged it was not feasible for the

prosecutor's office "to stop and canvass every single file that

the prosecutor has to determine whether" there are open cases

against a defendant before entering into a plea agreement.                    She

further accepted the legitimate objective of the prosecution to

keep the undercover investigation open to accumulate sales to

reach   a   weight   that   would   result    in   a   more   serious    charge

against defendant.      She added,

            But when a Prosecutor's Office does that and
            within its own office has another case going
            on involving the same defendant, it is this
            [c]ourt's belief that it should be the
            responsibility    of    someone    in    that
            Prosecutor's Office to coordinate those
            events and to understand what is going on.

                 . . . .

            [T]here's    some   responsibility    when    a
            defendant has already pled. . . .        [A]nd
            perhaps it’s just a matter of having some
            sort   of   a   cross-reference   within    the
            Prosecutor's Office that before they come to
            court and . . . accept a plea . . . or go
            forward on a sentencing that someone from
            that office should be looking back to find
            out if there's a possibility that there's
            something out there pending. . . .         This
            [c]ourt finds it is fundamentally unfair at
            this   point   to   subject   [defendant]    to
            prosecution under this indictment . . . .

                                     III.

    "[O]ur     courts   have   long    held    that    a   dismissal     of    an

indictment is a draconian remedy and should not be exercised




                                      7                                 A-5953-13T3
except on the clearest and plainest ground."                           State v. Peterkin,

226   N.J.    Super.      25,    38   (App.       Div.)    (citations         and   internal

quotation marks omitted), certif. denied, 114 N.J. 295 (1988);

see also State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.),

certif. denied, 167 N.J. 635 (2001).                        "Dismissal is the last

resort because the public interest, the rights of victims and

the integrity of the criminal justice system are at stake."

State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004).

Even in a case in which we found an investigating officer's

"brazen misconduct" to be "wholly reprehensible," we reversed

the dismissal of seventeen indictments, stating, "we question

whether the public must pay the price by forfeiting its day in

court   on     otherwise        properly      found       indictments."             Peterkin,

supra, 226 N.J. Super. at 30-31.                    Therefore, although a motion

to dismiss an indictment is directed to the sound discretion of

the   court,    State      v.    Hogan,    144      N.J.        216,    229   (1996),      "an

indictment should stand unless it is palpably defective."                                 State

v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010) (citation

and internal quotation marks omitted).

      In this case, the trial judge correctly ruled that                                   the

compulsory joinder rule did not apply because the offenses were

neither      based   on    the    same    conduct         nor    arose    from      the   same




                                              8                                      A-5953-13T3
episode.1     See Yoskowitz, supra, 116 N.J. at 701.                   The purely

legal     question    before    us     is    whether   the   judge     abused   her

discretion by relying upon the doctrine of fundamental fairness

to dismiss the indictment.                  Review of a trial judge's legal

interpretations is de novo.             State v. Grate, 220 N.J. 317, 329

(2015); Lyons, supra, 417 N.J. Super. at 258.                     "[I]f a trial

court's discretionary decision is based upon a misconception of

the law, a reviewing court owes that decision no particular

deference."     Lyons, supra, 417 N.J. Super. at 258.

     We acknowledge that "a trial court has inherent power to

fashion remedies in the interest of justice, which may include

dismissal of a[n] indictment for reasons of fundamental fairness

even in circumstances where a defendant's constitutional rights

are not implicated."           Ruffin, supra, 371 N.J. Super. at 385

(citing State v. Cruz, 171 N.J. 419, 427 (2002)).                     However, our

review of the applicable legal principles and the record leads

us   to    conclude    the     trial        judge   mistakenly    exercised     her

discretion     in     dismissing       the      indictment   as   a    matter    of

fundamental fairness.

     "For the most part," the concept of fundamental fairness

"has been employed when the scope of a particular constitutional

1
     Although defendant argues on appeal that the offenses
"appear[] to be part of the same broad criminal episode," he has
not filed a cross-appeal from this ruling.



                                            9                             A-5953-13T3
protection      has     not    been     extended         to    protect         a     defendant."

Yoskowitz, supra, 116 N.J. at 705.                       As the Court observed, the

doctrine   "has        been    an    'elusive     concept        .    .    .   [where]       exact

boundaries are undefinable.'"                   Ibid. (alteration in original)

(quoting       Bruce     D.     Greenberg,         New        Jersey's         "Fairness         and

Rightness" Doctrine, 15 Rutgers L.J. 927, 928 (1984)).

       The elusive quality of the doctrine is highlighted by the

fact    that      the    "leading"       cases        described           in    Yoskowitz         as

addressing fundamental fairness in the context of a multiple

prosecution,       id.    at    705-07,      do       not,     in     fact,        turn     on    an

application       of    the    doctrine.2         A    review        of    cases      that    have

considered this issue is helpful to identify factors relevant to

a   determination        whether      multiple        prosecutions             not    barred      by

double jeopardy or the compulsory joinder rule should be barred

as a matter of "fundamental fairness."

       The issue in Gregory was whether the State could pursue

separate trials against a defendant for the sale of a small

quantity     of    heroin       as    well    as      possession           with      intent       to

distribute a larger quantity of heroin that had been the source

2
    In addition, although the issue of fairness in a multiple
prosecution situation was discussed in both State v. Williams,
172 N.J. 361 (2002), and State v. Veney, 409 N.J. Super. 368
(App. Div. 2009), the determinative question in both cases was
whether the mandatory joinder rule, N.J.S.A. 2C:1-8(b) and Rule
3:15-1(b), barred the second prosecution. Williams, supra, 172
N.J. at 363; Veney, supra, 409 N.J. Super. at 372.



                                             10                                           A-5953-13T3
of the quantity sold.     Gregory, supra, 66 N.J. at 511-13.    The

Court described the pertinent facts in Gregory as follows:

         On December 27 the defendant had possession
         of all of the heroin in the bathroom cabinet
         when the undercover officer came to his
         apartment.    The officer saw the heroin in
         the cabinet and purchased a small quantity
         in a glassine envelope which was taken
         therefrom.      Though   he    then   left the
         apartment he returned almost immediately
         with other officers to seize the remaining
         heroin.     While the sale of the small
         quantity and the continuing possession of
         the larger quantity may under our case law
         be viewed here as separate offenses, surely
         the occurrences in their entirety at the
         defendant's    apartment    on    December  27
         involved the same conduct or the same
         criminal episode for purposes of procedural
         joinder.

         [Id. at 522 (emphasis added).]

    In announcing the mandatory joinder rule, the Court found

that a second trial for possession with intent to distribute was

barred because the prosecution would violate Section 1.07(2) of

the Model Penal Code.   Ibid.

    The Court reasoned:

         The Prosecutor was fully aware of all of the
         pertinent circumstances before the first
         indictment was returned.      He had broad
         discretionary powers and in the exercise of
         his   discretion   he   could  have   sought
         indictment for (1) the sale or (2) the
         possession with intent to distribute, or
         both.    He sought and obtained indictment
         only for the sale and not until after trial
         thereon was completed did he seek and obtain
         indictment for the possession with intent to



                                 11                       A-5953-13T3
               distribute. This course was patently unfair
               to the defendant and was in clear conflict
               with the goals and terms of § 1.07(2).

               [Id. at 523            (emphasis      added)        (citation
               omitted).]

       The Yoskowitz Court described State v. Currie, 41 N.J. 531

(1964),      as     the    "seminal    double-jeopardy         case   decided       on   the

basis     of      fairness     and    the     reasonable       expectations        of    the

defendant. . . ."            Yoskowitz, supra, 116 N.J. at 705.                    After a

motor vehicle stop, the defendant in Currie sped away, striking

one police officer, hitting the police car, and causing a second

officer to leap out of harm's way.                       Currie, supra, 41 N.J. at

533.      The       defendant      was    convicted       in     municipal       court   for

reckless driving and leaving the scene of an accident.                              Id. at

533-34.        He    was    convicted       over   one    year    later     of   atrocious

assault      and     battery    and,     in    his   appeal,       argued    the    second

prosecution "was barred under principles of double jeopardy, and

res judicata or collateral estoppel."                    Id. at 535.

       The     Court      stated     "the     constitutional       safeguard       against

double jeopardy . . . justly assures that the State with its

great resources will not be permitted to harass and oppress the

individual by multiple prosecution or punishment for the same

offense."          Id. at 536.           However, the Court observed, "[t]he

difficulty arises in determining just when we are dealing with

the same offense within the contemplation of the safeguard."



                                              12                                   A-5953-13T3
Ibid.     The policies underlying the safeguard dictate that "[t]he

primary    considerations          should     be      fairness     and    fulfillment        of

reasonable expectations in the light of the constitutional and

common law goals."         Id. at 539.

      The Court also discussed the practical factors relevant to

a   determination     as      to   whether        a     second    prosecution    involves

"elements     of    oppression          or     harassment"           or     violates       the

reasonable expectations of the defendant.                            Id. at 543.           The

Court     noted     that       motor         vehicle          violations       are      tried

expeditiously,     in     a    comparatively            informal    proceeding        with    a

limited    evidential      presentation            in    which     the    defendant     faces

minor fines and jail terms.                  Ibid.        The Court concluded, "The

elements of oppression or harassment historically aimed at by

the     constitutional         and      common          law      prohibition     are       not

significantly involved; and permitting the second prosecution

would not violate the reasonable expectations attendant upon the

first    proceeding     while        barring       it    would     operate     with     gross

unfairness    to    the       State."         Ibid.           Accordingly,      the     Court

rejected the defendant's claim that the second prosecution was

barred by double jeopardy, res judicata or collateral estoppel.

Id. at 545.

      In State v. Tsoi, 217 N.J. Super. 290 (App. Div. 1987), we

reversed the dismissal of an indictment for third-degree theft




                                             13                                      A-5953-13T3
by embezzlement based upon multiple thefts that followed the

defendant store clerk's guilty plea in municipal court to a

single theft of $85.           Id. at 292-94.          We stated, "We do not

consider it reasonable that [the defendant] would . . . expect

that 67 other instances of embezzlement totaling over $6,000,

and known at that time only to her, would be disposed of upon

the single plea in municipal court."                Id. at 295.         Applying the

principles articulated in Currie and Gregory, we held that the

elements of harassment and oppression were not present and the

second prosecution was not barred.                  Id. at 295, 297; see also

State v. Catanoso, 269 N.J. Super. 246, 249, 274 (App. Div.)

(holding defendant who was indicted twice for his participation

in   a   conspiracy       to   receive        kickbacks    had     no     reasonable

expectation   that    his      trial   on     one   "Canadian      golfing    junket

conspiracy would discharge his criminal responsibility for the

lengthy conspiracy . . . charged in the first indictment"),

certif. denied, 134 N.J. 563 (1993).

     Both   State    v.   Tropea,      78   N.J.    309   (1978)    and    State     v.

Godfrey, 139 N.J. Super. 135 (App. Div.), certif. denied, 73

N.J. 40 (1976), concerned attempts to prosecute a defendant on

charges after the State failed to prove his guilt in a prior

prosecution for a related offense.




                                         14                                  A-5953-13T3
      In   Tropea,     the   defendant's     conviction    for    operating    his

vehicle at forty-four miles per hour in a twenty-five mile-per-

hour zone was reversed on appeal based on the State's failure to

prove the applicable speed limit.                Id. at 311.        Rather than

dismissing    the    charges,    we   remanded    the    matter    for   retrial.

Ibid.      After granting certification, the Supreme Court elected

not to decide whether double jeopardy applied and instead barred

the second trial on fundamental fairness grounds.                   Id. at 315-

16.   The Court explained:

             Here the failure of the State to have
             produced an essential element of proof,
             namely, the applicable speed limit, remains
             without satisfactory explanation.     It was
             raised by defendant as an objection at the
             trial level. While a defendant subjected to
             multiple speeding prosecutions may very well
             face less embarrassment, expense and anxiety
             than are encountered by those faced with
             criminal   prosecutions,   nevertheless  the
             burdens to which he is subjected are not
             mere trifles.    Under the circumstances of
             this case a rerun at the trial level would
             result in unwarranted harassment and should
             be avoided if the interests of justice will
             not otherwise be disserved.

             They will not. Here another trial would
             merely afford the State another opportunity
             to produce evidence which it failed to
             muster at the original proceedings.

             [Id. at 316 (emphasis added).]

      The defendant in Godfrey was acquitted of receiving stolen

property    by   the   trial    judge   because    the    proofs   showed     that




                                        15                               A-5953-13T3
defendant had himself stolen the van in question.3                              Godfrey,

supra, 139 N.J. Super. at 137.                  We concluded the State was

barred from subsequently prosecuting the defendant for stealing

the van and knowingly bringing the van into New Jersey, N.J.S.A.

2A:119-9.4     Godfrey, supra, 139 N.J. Super. at 138.                      Observing

that "the State, with knowledge of the facts, chose the wrong

statute under which to prosecute," we found such prosecution was

barred on both double jeopardy and fundamental fairness grounds

and, further, that the facts fell "squarely within Gregory."

Id. at 141.

      In a case decided after Yoskowitz, a juvenile argued he

should not be prosecuted a second time on one of two counts when

the trial court had made no conclusion regarding his guilt or

innocence on the charge.          State v. M.N., 267 N.J. Super. 482,

491   (App.    Div.     1993).        Although       we    found   that     a    second

prosecution    was     not   barred     on    double       jeopardy     grounds,       we

concluded     the     doctrine   of     fundamental         fairness      barred      re-

prosecution    of     that   charge.         Ibid.        Still,   we   noted,      "the

doctrine of fundamental fairness is to be sparingly applied."

3
    N.J.S.A. 2A:139-3 provided, "Any person who receives or
purchases a motor vehicle knowing it to have been stolen, is
guilty of" an offense.
4
   N.J.S.A. 2A:119-9 provided, "Any person who, having at any
place without this state stolen property of another, . . .
brings the same into this state, is guilty of" an offense.



                                         16                                     A-5953-13T3
Id. at 492.       "'It is appropriately applied in those rare cases

where not to do so will subject the defendant to oppression,

harassment       or    egregious     deprivation.'"             Ibid.      (quoting

Yoskowitz, supra, 116 N.J. at 712 (Garibaldi, J., concurring and

dissenting)).

      We reiterate that the offenses here are clearly separate

offenses not subject to the mandatory joinder rule or vulnerable

to   dismissal    on    double   jeopardy       grounds.      Although      all   the

offenses involved controlled dangerous substances and occurred

in August 2011, they concern different transactions and, indeed,

different drugs.         The charge that resulted in a guilty plea

arose from a motor vehicle stop that yielded the recovery of a

quantity of marijuana.           The indictment charged defendant with

discrete sales of cocaine to an undercover officer.

      We then consider the factors relied upon in the caselaw to

determine whether a second prosecution that is not barred under

double jeopardy or mandatory joinder grounds should be dismissed

under the fundamental fairness doctrine.                   Among the factors to

be considered are: (1) the knowledge of the prosecutor regarding

offenses that are ripe for charging against a defendant; (2)

whether   a    second    prosecution       is    attributable        to   malice,     a

failure   to   establish     guilt    in    a   prior    proceeding,       or   to    a

legitimate     prosecutorial       objective;      (3)     whether    elements       of




                                       17                                   A-5953-13T3
harassment       or     oppression           are    present,          and    (4)     whether      the

reasonable       expectations           of    the       defendant       are       defeated       by    a

subsequent prosecution.              In assessing these factors, we consider

the facts "in a practical light."                        See Currie, supra, 41 N.J. at

539, 543.

       In   Gregory,        the     Court          found    it    significant          that       the

prosecutor was "fully aware" of the facts underlying the two

offenses       and    exercised     his        discretion         in    a     manner    that      was

"patently unfair" to the defendant.                         Gregory, supra, 66 N.J. at

523.        Although       the    prosecutor             here    must        be     charged      with

knowledge of the undercover sales, the record fails to show the

prosecution       was      motivated         by    malice       and    the     trial    court         so

found.         Moreover,      the    delay         in    bringing           those    charges      was

attributable          to    legitimate             prosecution          objectives           -    the

protection of an ongoing undercover investigation and the effort

to continue the            investigation until the sales amounted to a

higher degree offense.                  In contrast to Gregory, this was an

appropriate exercise of prosecutorial discretion.                                   And, this is

not a case in which the second prosecution would merely serve to

give     the    prosecution         a        second      bite     at        proving    the       same

underlying offense.           See Tropea, supra, 78 N.J. at 316; Godfrey,

supra, 139 N.J. Super. at 141.




                                                   18                                    A-5953-13T3
    Like Tsoi, the defendant here was engaged in continuing and

separate criminal acts.      Although the prosecutor was aware of

the two undercover sales, defendant must also be charged with an

awareness   of   his   own   criminal   involvement.        Under   these

circumstances, it was not reasonable for him to expect that his

guilty plea to a third-degree marijuana charge would shield him

from all other drug charges during a similar period of time.

See Tsoi, supra, 217 N.J. Super. at 295.

    In sum, this is not one of those "rare cases" in which the

doctrine of fundamental fairness must be applied to protect a

defendant    from      "oppression,     harassment     or      egregious

deprivation."    Yoskowitz, supra, 116 N.J. at 712 (Garibaldi, J.,

concurring and dissenting).

    Reversed.




                                  19                            A-5953-13T3
