STATE OF NEW JERSEY VS. ADRIENNE N. SMITH AND ORVILLE COUSINS (17-08-1176, BERGEN COUNTY AND STATEWIDE)

               NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0838-20T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,
APPROVED FOR PUBLICATION

v. December 31, 2020

APPELLATE DIVISION
ADRIENNE N. SMITH and
ORVILLE COUSINS,

Defendants-Appellants.
________________________

Argued December 7, 2020 – Decided December 31, 2020

Before Judges Fasciale, Mayer and Susswein.

On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Indictment No. 17-

               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0838-20T4

STATE OF NEW JERSEY,

     Plaintiff-Respondent,
                                        APPROVED FOR PUBLICATION

v.                                            December 31, 2020

                                            APPELLATE DIVISION
ADRIENNE N. SMITH and
ORVILLE COUSINS,

     Defendants-Appellants.
________________________

           Argued December 7, 2020 – Decided December 31, 2020

           Before Judges Fasciale, Mayer and Susswein.

           On appeal from the Superior Court of New Jersey,
           Law Division, Bergen County, Indictment No. 17-08-
           1176.

           Paul Darakjian argued the cause for appellant
           Adrienne Smith (Lucianna & Lucianna, PA, Frank
           Carbonetti, and Paul Darakjian, on the briefs).

           Daniel S. Rockoff, Assistant Deputy Public Defender,
           argued the cause for appellant Orville Cousins (Joseph
           E. Krakora, Public Defender, attorney; Daniel S.
           Rockoff, of counsel and on the brief.). 1


1
  On December 2, 2020, former trial counsel for defendant Orville Cousins
withdrew and Daniel Rockoff, Assistant Deputy Public Defender, executed a
             William P. Miller, Assistant Prosecutor, argued the
             cause for respondent (Mark Musella, Bergen County
             Prosecutor, attorney; William P. Miller, on the brief).

      The opinion of the court was delivered by

FASCIALE, P.J.A.D.

      In this murder trial, which had been interrupted by the COVID-19

pandemic (the pandemic), where the jury had been impaneled and sworn and

the trial was well under way, we granted defendants leave to appeal from a sua

sponte order declaring a mistrial and denying their motions to dismiss th e

indictment on double jeopardy grounds. We did so to determine whether the

ongoing pandemic provided a sufficient legal reason and manifest necessity for

the judge to terminate the trial. It positively and decidedly did. In reaching

our conclusion and declining to dismiss the charges, we applied age-old legal

principles guiding the federal and state constitutional prohibition against

double jeopardy.

      The COVID-19 global pandemic has indiscriminately spread and

continues to escalate throughout the United States. In New Jersey, the rapidly

rising incidence of COVID-19 has necessitated stay-at-home orders and



___________________________

substitution of attorney. Mr. Rockoff did not represent Cousins during the
trial.
                                                                       A-0838-20T4
                                       2
required certain operations cease to reduce the rate of community spread.2 As

of mid-December, the Centers for Disease Control and Prevention (CDC)

reported over 415,000 cases and over 18,000 fatalities in our state,3 while the

number of cases and fatalities across the country continue to rise at a

staggering pace.4 In response to the public health hazard posed by COVID-19,

courts nationwide have ordered the suspension of jury trials.5 Since early


2
  See Exec. Order No. 107 (Mar. 21, 2020), 52 N.J.R. 544(a) (Apr. 6, 2020);
Exec. Order No. 158 (June 29, 2020), 52 N.J.R. 1458(a) (Aug. 3, 2020); Exec.
Order No. 173 (Aug. 3, 2020), 52 N.J.R. 1635(a) (Sept. 8, 2020); Exec. Order
No. 204 (Nov. 30, 2020).
3
   See CDC COVID Data Tracker, Ctrs. For Disease Control and Prevention,
https://covid.cds.gov/covid-data-tracker/#cases. (last updated Dec. 17, 2020).
4
  As of December 18, 2020, the CDC reports that the total cases in the United
States is over 16,000,000 and total fatalities over 306,000. See CDC COVID
Data     Tracker,    Ctrs.   For     Disease      Control    and    Prevention,
https://covid.cdc.gov/covid-data-tracker/#cases. (last updated Dec. 17, 2020).
5
   As of November 20, 2020, twenty-six district courts have suspended jury
trials, while many others have taken steps to reduce the risk of infection while
conducting trials. See Courts Suspending Jury Trials as COVID-19 Cases
Surge,        United       States      Courts        (Nov.       20,      2020),
https://www.uscourts.gov/news/2020/11/20/courts-suspending-jury-trials-
covid-19-cases-surge. Additionally, seven states and the District of Columbia
have suspended jury trials until further notice, four states have suspended jury
trials until January, and four states have suspended jury trials until February.
See Coronavirus and the Courts, Nat'l Ctr. for State Courts,
https://www.nscs.org/newsroom/public-health-emergency. (last visited Dec.
14, 2020). The remaining states have not issued statewide orders suspending
jury trials, but some have issued local orders affecting the continuation of jury
trials.

Id. A-0838-20T4 3 March,

the New Jersey Supreme Court has regularly provided significant

updates regarding how the administration of justice could be accomplished

within the confines of state and local COVID-19 regulations.6         Our Court

continues to meticulously monitor the trajectory of COVID-19 cases statewide

and is consistently balancing the competing interests of those involved in jury

trials, such as defendants, victims, jurors, counsel, and members of the

judiciary. The judge carefully navigated the trial through these challenging

times.

         We hold that the COVID-19 pandemic—an unexpected, untoward, and

undesigned public health crisis, which does not bespeak bad faith, inexcusable

neglect, inadvertence, or oppressive conduct by counsel—coupled with the

unique facts of this case, presents a legally sufficient reason and manifest

necessity to terminate defendants' trial. In analyzing whether to sua sponte

terminate a trial due to the COVID-19 pandemic after a jury has been

impaneled and sworn, trial judges should consider: (1) the circumstances that

created the urgent need to discontinue the trial, including whether it was due to

bad   faith, inexcusable neglect, inadvertence, oppressive conduct, or

prosecutorial or defense misconduct; (2) the existence of viable alternatives;


6
     See     NJCourts     COVID-19       Updates,      New      Jersey     Courts,
https://njcourts.gov/public/covid19.html. (last visited Dec. 17, 2020).
                                                                          A-0838-20T4
                                        4
(3) the extent of any prejudice to a defendant by a second trial; (4) whether a

second trial accords with the ends of public justice and judicial administration;

and (5) any other relevant factors unique to the facts of the case.

      Here, the judge considered these factors and did not abuse his discretion

by sua sponte declaring the mistrial. In performing his sound analysis, the

judge properly balanced defendants' constitutional and statutory rights while

maintaining the public's interest in fair trials, mindful of the unique and

unprecedented public health risks facing participants owing to the COVID-19

pandemic. Consequently, we conclude that double jeopardy does not bar a

subsequent trial.

      We therefore affirm.

                                        I.

      Defendants Adrienne Smith and Orville Cousins are siblings. According

to the State, Smith killed her husband and worked with Cousins to hide the

body. On August 30, 2017, a Bergen County grand jury indicted Smith for

first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2); and third-degree hindering her

own detention or apprehension, N.J.S.A. 2C:29-3(b)(4). It indicted Smith and

Cousins for second-degree desecrating, damaging, or destroying human

remains,   N.J.S.A.   2C:2-6    and   N.J.S.A.   2C:22-1(a)(2);       second-degree

unlawfully disturbing, concealing, moving, or concealing human remains,

                                                                           A-0838-20T4
                                        5
N.J.S.A. 2C:2-6 and N.J.S.A. 2C:22-1(a)(1); and third-degree suppressing by

way of concealment or destruction of evidence, N.J.S.A. 2C:2-6 and N.J.S.A.

2C:29-3(b)(1).

      Jury selection began on January 7, 2020 and was protracted because of

the number of witnesses expected to testify and the anticipated length of trial.

The trial judge, Judge Christopher R. Kazlau, advised the jurors that a lengthy

commitment was required, and that trial would be completed on or before

April 9, 2020. On February 12, 2020, the trial commenced. At that point,

there was limited public knowledge about the COVID-19 virus and how it

would eventually spread. 7 The gravity of the COVID-19 pandemic quickly

became more apparent and, on March 12, 2020, the jury sent a note to the

judge requesting that he address how the pandemic would affect the case and

their service. The judge addressed the question on the record in the presence

of the parties with the information available to him at that time.

      On March 15, 2020, our Supreme Court suspended all jury trials. See

Notice New Jersey Court Operations—COVID-19 Coronavirus: Rescheduling


7
   See Michelle A. Jorden & M.D., Sarah L. Rudman, M.D., et. al, Evidence
for Limited Early Spread of COVID-19 Within the United States, Ctrs. For
Disease Control and Prevention Morbidity and Mortality Weekly Report 682-
683                    (June                  5,                   2020),
https://www.chttps://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6922e1-
H.pdfdc.gov/mmwr/volumes/69/wr/pdfs/mm6922e1-H.pdf.
                                                                        A-0838-20T4
                                        6
of In-Court Proceedings Scheduled for the Week Beginning Monday, March

16, 2020; Continuation of All Critical Functions 1-3 (March 15, 2020). In

accordance with our Supreme Court's order, and through no fault of any of the

participants, the trial could not continue. Accordingly, on March 17, 2020, the

judge advised the jurors that the trial was postponed and that they would be

notified when their service at trial would resume. At the time the trial was

suspended the State was still presenting its case with its twenty-ninth witness

on the stand. The State disclosed that it anticipated calling an additional three

to four witnesses before it would rest.

      Three   months     later,   Judge       Glenn   A.   Grant,   J.A.D.,    Acting

Administrative Director of the Courts, issued a notice to the bar continuing the

suspension of new trials but providing for the resumption of "ongoing jury

trials suspended during COVID-19 . . . consistent with public health

precautions with the consent of all parties[.]" Notice to the Bar COVID-19—

Fourth Omnibus Order on Court Operations and Legal Practice 1 (June 11,

2020) (Fourth Omnibus Order).        Thereafter, on June 22, 2020, two jurors

contacted the judge to inquire about their obligations moving forward. One

juror asked about the status of trial and whether she could take a planned

vacation. Another juror called to advise the judge that he had started a new

job and asked to be excused.

                                                                              A-0838-20T4
                                          7
      On July 22, 2020, our Supreme Court authorized incremental resumption

of certain new criminal and civil trials, without the consent of the parties. See

Notice to the Bar COVID-19—Criminal and Civil Jury Trials to Resume

Incrementally Using a Hybrid Process with Virtual (Video) Jury Selection and

Socially Distanced In-Person Trials (July 22, 2020). In its Seventh Omnibus

Order, the Court authorized "trials to be conducted in person with social

distancing, consistent with the Court's July 22, 2020 Order[.]" See Notice to

the Bar COVID-19—Seventh Omnibus Order on Court Operations and Legal

Practice–Concluding Certain General Extensions; Continuing Individualized

Adjustments (July 24, 2020).

      In accordance with our Supreme Court's orders, the judge took steps to

safely resume the trial. The judge conducted multiple status conferences to

ensure the proceedings would comply with the CDC and Administrative Office

of the Courts (AOC) guidelines.       Along these lines, he made numerous

proposals to the parties.

      The judge proposed resuming the trial in a larger courtroom, which

would allow for social distancing 8 in accordance with the Court's July 22, 2020



8
   The CDC defines "social distancing" as the practice of staying at least six
feet from other people who are not from your household. See Social
Distancing,    Ctrs.    for     Disease      Control     and      Prevention,
                                                                        A-0838-20T4
                                       8
Order. He also discussed resuming trial with all participants wearing personal

protective equipment, including face shields and masks, and installing

plexiglass barriers. He invited counsel to inspect the larger courtroom and the

jury room, which they declined to do.

      The State consented to the resumption of the trial using these mitigation

and safety measures. Defendants did not. Defendants themselves suffer from

underlying health conditions and preferred remaining incarcerated rather than

resuming the trial. 9 The CDC has recognized that individuals with certain

conditions may be at an increased risk for severe illness from the COVID-19

virus.10

      Defense counsel also objected to social distancing and mask protocols

and expressed concern that the protocols would compromise their ability to

effectively represent their clients should trial resume.     Cousin's attorney

expressed safety concerns about resuming the trial given his own age. One of
___________________________

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-
distancing.html. (last updated Nov. 17, 2020).
9
  We considered defendants' health conditions, as did the judge, but there is no
need to disclose them, especially in a published opinion.
10
   See People with Certain Medical Conditions, Ctrs. for Disease Control and
Prevention,           https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions.html. (last updated Dec. 1, 2020).


                                                                       A-0838-20T4
                                        9
Smith's attorneys, 11 who is ninety-seven-years old, objected to resuming the

trial "for the health and safety of all involved."   The CDC has found that

COVID-19 is particularly devasting to individuals in counsels' age groups,

making them more than ninety times more likely to die from COVID-19 and at

least five times more likely to be hospitalized than individuals age eighteen to

twenty-nine.12 Smith's second attorney expressed a desire to resume the trial

only under the "gold standard" that existed prior to the pandemic, meaning a

trial conducted under normal        circumstances and without       COVID-19

precautions. The judge did not fault, nor do we, the collective positions of

defendants or their counsel.

      On October 23, 2020, four months after our Supreme Court authorized

resumption of jury trials, the judge informed counsel and the parties at another

status conference on the record that he was considering terminating the trial

given the "very high risk of prejudice" to defendants as a result of the seven -

month suspension of the trial "with really no end in sight." The judge asked



11
   Smith is represented by two attorneys in this matter: Frank Carbonetti and
Frank Lucianna.
12
   See COVID-19 Hospitalization and Death by Age, Ctrs. for Disease Control
and     Prevention,    Ctrs.   for   Disease     Control    and    Prevention,
https://cdc.gov/coronavirus/2019-ncov/covid-data/investigations-
discovery/hospitalization-death-by-age.html. (last updated Aug. 18, 2020).
                                                                       A-0838-20T4
                                      10
the parties to brief the issue, and three days later the judge conducted oral

argument.

      Defendants objected to the judge declaring a mistrial, refused to resume

the trial because of health risks, and requested continued suspension of the

trial until—in their view—they could return to the "gold standard" conditions

that existed before the pandemic, or until the Supreme Court itself ordered

resumption of the trial. They argued that double jeopardy would attach if the

judge declared a mistrial over the parties' objections.     Although the State

objected to a mistrial, it recognized the reality that the suspension of the case

could not "linger in perpetuity." But the State contended that if the judge

declared a mistrial, double jeopardy would not attach because defendants

remained unwilling to resume the trial.

      On October 26, 2020, seven months after the judge suspended the trial,

he sua sponte declared a mistrial and entered the order under review. 13 In his

oral decision, the judge explained that a manifest and overriding necessity

required the declaration of a mistrial. The judge also found that when he

suspended the trial in March 2020, there were, in his estimation, "many days,"

"if not weeks," remaining of the trial.       The State expected to produce

13
   Defendants did not seek permission to file an emergent motion challenging
this order, or otherwise move to stay the order pending their motion for leave
to appeal.
                                                                         A-0838-20T4
                                       11
additional witnesses before it rested; if they desired to do so, defendants had

their case to present to the jury; adequate time would be allocated for any

motions; the charge conference remained; the jury charge had to be given; and

the jury needed to sufficiently deliberate. The judge explained:

               At this time, we face an uncertain time table as to
               when the pandemic will be [over] and or whether there
               will be vaccines and or treatments available such that
               the resumption of this trial may occur under the
               circumstances that existed prior to the suspension of
               the trial. At the very least, most optimistically, that
               would be months from now.

               The circumstances that have resulted in the suspension
               of this trial are historic and unprecedented. Both the
               State and defendants submitted that they wish to
               preserve this jury moving forward. However, this
               [c]ourt finds that after a seven[-]month delay and with
               all of the attendant circumstances and actual and
               potential consequences flowing from that delay, the
               pandemic, the prospect of an indefinite further delay
               that will last months, that termination of this trial is
               required by manifest [or] overriding necessity.

               [Defendant] Smith faces life in prison if convicted.
               [Defendant] Cousins faces up to [twenty-five] years in
               prison if convicted. I have substantial concern that the
               trial's result will be tainted, even if the trial were to
               resume today, let alone months from now[.]

         The judge found that there were no viable alternatives to terminating the

trial.   He reached this conclusion after conducting multiple conferences at

which he discussed with counsel steps to ensure compliance with CDC and

AOC guidelines, including "the need to voir dire the jury prior to resuming the
                                                                        A-0838-20T4
                                     12
trial, the potential complications with resuming after . . . a lengthy delay [of

seven months] and the jurors' recollection of testimony and the potential need

for playback of testimony, months removed from when the jury first heard the

testimony, with the witnesses, in person."         The judge noted that playback

would likely be insufficient because it "would occur many months removed

from when [the jury] actually had the opportunity to listen to the testimony,

view the evidence and do that in conjunction with an assessment and

evaluation of the demeanor of the witnesses." The judge also considered the

"burden, sacrifice, and hardship on [the] jury."

      Defendants and defense counsel remained steadfast in their safety

concerns. The judge did not fault them for raising these concerns and found

that defendants were not "acting in bad faith" by withholding their consent.

However, the judge noted—consistent with his efforts—that our Supreme

Court permitted resumption of jury trials consistent with public health

precautions.

      Notably, the judge found the circumstances that created this situation

involved "an unprecedented global pandemic that has impacted the functions

of our judicial system in New Jersey and impaired the ability of this [c]ourt to

resume this trial under the conditions in which it began."         He continued,

explaining "[t]his situation certainly was not created by any prosecutorial

                                                                        A-0838-20T4
                                       13
misconduct, as the State has been ready and waiting to resume from the very

day months ago when it was permitted," and "[t]he initial suspension of trial in

March [2020] due to the pandemic was beyond the control of all parties and

resulted in an arguably untenable delay, threatening the fairness of the trial,

even at the time [our] Supreme Court allowed the resumption of suspended

trials in June [2020]."

      The judge rejected the State's argument that, as an alternative, the jury

should have been polled about their future availability to resume the trial prior

to declaring a mistrial. The judge found that polling the jury did not "address

the effect of what is sure to be a month[s-]long additional delay" or possibly

"an indefinite delay" on the jury's recollection of the evidence and ability to

serve. Looking long term, "[e]ven if the trial were to resume at some point

with the existing jury, if the defendants were convicted, the effects of the

extraordinary circumstances under which this trial was suspended, resumed,

and concluded would inevitably form a basis for appeal[.]" See State v. Loyal,

164 N.J. 418

, 437 (2000) (noting that "if a mistrial vindicates a significant

state policy and 'aborts a proceeding that at best would have produced a verdict

that could be upset by one of the parties,' a defendant's interest may be

outweighed by the 'equally legitimate demand for public justice.'") (quoting

Illinois v. Somerville, 

410 U.S. 458

, 471 (1973)).

                                                                        A-0838-20T4
                                       14
     Thus, the judge found that there was

           an urgent need to discontinue the trial . . . to safeguard
           the defendants from any prejudice stemming from the
           delay and to protect the ends of public justice, as the
           totality of the circumstances of the continued
           suspension have only eroded and will continue to
           erode the prospects of a fair and just result in this trial.

           . . . [Defendant] Smith faces life in prison if convicted
           and [Defendant] Cousins theoretically faces up to
           [twenty-five] years. This [c]ourt is aware of the
           sacredness of the lives before me but also the
           sacredness of the life that was taken.

           In the interest of justice, a second trial will proceed
           consistent with public health precautions at a date to
           be determined. A second trial will not prejudice the
           defendants and this [c]ourt finds it's necessary not
           only to safeguard the rights of the defendants to a full
           and fair trial but also to protect the interest of the
           public, to have its trial processes applied fully and
           fairly in the due administration of criminal law.

           Under all the circumstances of this case, balancing the
           interest of the defendants and the public, a mistrial is
           warranted[,] and it is not fundamentally unfair to
           require retrial of the defendants.

     Three weeks after the judge declared the mistrial, on November 16,

2020, and in response to the second wave of the pandemic, our Supreme Court

again suspended new in-person jury trials based on COVID-19 trends and

health and safety concerns. See Notice to the Bar COVID-19—Suspension of

New In-Person Jury Trials and In-Person Grand Jury Sessions; Revised End-


                                                                          A-0838-20T4
                                       15
Dates for Excludable Time (Nov. 16, 2020) (November 16, 2020 Suspension).

In its order, our Supreme Court stated:

            In its initial response to the COVID-19 crisis, the
            Court in March 2020 authorized a swift transition
            from in-person to remote court operations. When the
            virus generally was controlled in New Jersey, the
            Court in June 2020 announced a statewide progression
            from Phase 1 to Phase 2 of its post-pandemic plan,
            including the incremental resumption of certain in-
            person matters. In the past several months, the Court
            gradually expanded the scope of events and services
            that could be conducted in person.

            Judges at all levels of the courts have now conducted
            more than 100,000 remote court events involving
            more than 1.2 million participants. At the same time,
            limited in-person proceedings, including socially
            distanced jury trials and in-person grand jury sessions,
            have enabled progress in areas that had slowed during
            fully remote operations. Among other steps, the Court
            in its July 22, 2020 Order authorized the resumption
            of jury trials in a hybrid format including primarily
            virtual jury selection and socially distanced in-person
            trials. Verdicts have been returned in a number of
            criminal and civil cases, and the scheduling and
            conferencing of cases for real trial dates has prompted
            resolutions in more than 115 criminal cases, involving
            more than [sixty] detained defendants, as well as
            settlements in more than 225 civil cases.

            [Id. at 1-2.]

      The Court explained that "[t]he increasing rates of new cases,

hospitalizations, and deaths make it impracticable and unsafe for certain in-

person court events to continue at the level reached during the past few

                                                                       A-0838-20T4
                                      16
months."

Id. at 3.

Thus, "[a]lthough it is not necessary at this time to prohibit

all on-site presence and in-person events at court locations, in-person jury

trials and in-person grand jury sessions will now be suspended based on

current COVID-19 trends and health and safety concerns."

Ibid. Additionally, the Court

provided, as it had done so in earlier orders, that

            [i]n recognition of the pervasive and severe effects of
            the COVID-19 public health crisis, the [trial judge] in
            any individual matter consistent with Rule 1:1-2(a)
            may suspend proceedings, extend discovery or other
            deadlines, or otherwise accommodate the legitimate
            needs of parties, attorneys, and others in the interests
            of justice[.]

            [Id. at 6.]

                                        II.

      On appeal, defendants argue that the judge abused his discretion by sua

sponte declaring a mistrial because there was no "manifest necessity." They

maintain that double jeopardy bars retrial and urge us to dismiss all charges in

the indictment. They argue the judge acted with "imprudent haste," failed to

consider alternatives to a mistrial, including polling the jury , and that he

lacked the authority to declare a mistrial due to the Omnibus Orders.

Defendants further contend they suffered prejudice, and that they did not

waive their constitutional right to be free from double jeopardy by withholding

their consent to resume trial.

                                                                         A-0838-20T4
                                        17
      The State argues that retrial is permissible under N.J.S.A. 2C:1-9(d)(3)

because the mistrial declaration was "required by a sufficient legal reason and

a manifest or absolute or overriding necessity." In addition, the State asserts

alternatively that retrial is permissible under N.J.S.A. 2C:1-9(d)(1) because

defendants' adamant refusal to resume trial "could fairly be considered a

waiver of their right to object to the trial's eventual (and completely

foreseeable) termination." 14

                                         III.

      "Appellate courts 'will not disturb a trial [judge's] ruling on a motion for

a mistrial, absent an abuse of discretion that results in a manifest injustice.'"

State v. Smith, 

224 N.J. 36

, 47 (2016) (quoting State v. Jackson, 

211 N.J. 394

,

407 (2012)). Pertinent to this appeal, "appellate reluctance to interfere with a

sua sponte declaration of a mistrial should be even more pronounced where it

is plain that a primary motive for the trial judge's course was solicitude for the

14
    Because we agree that manifest necessity existed, we need not address the
State's alternative argument that retrial was permissible under N.J.S.A. 2C:1-
9(d)(1). We note briefly N.J.S.A. 2C:1-9(d)(1) provides that termination of a
trial is not improper if "[t]he defendant . . . waives . . . his right to object to the
termination." Here, defendants forcefully and consistently objected to the
mistrial. Withholding consent to resumption of the trial during the pandemic,
given their high-risk medical condition, does not counter that opposition. See
State v. Barnes, 

261 N.J. Super. 441

, 447 (App. Div. 1993) (indicating that we
rejected the trial court's finding that the defendant acquiesced in the
declaration of a mistrial because the defendant expressly reserved his right to
move for a dismissal of the charges).
                                                                              A-0838-20T4
                                          18
defendant's interests." State v. Farmer, 

48 N.J. 145

, 171 (1966). Where a trial

judge sua sponte declares a mistrial over the objections of the State and

defendants, the "propriety of the mistrial depends upon the sound exercise of

the [trial judge's] discretion."    

Loyal, 164 N.J. at 436

(quoting State v.

Rechtschaffer, 

70 N.J. 395

, 406 (1976)). "[D]iscretion is exercised improperly

. . . if the [trial judge] has an appropriate alternative course of action." State v.

Allah, 

170 N.J. 269

, 281 (2002).

                                         A.

      We begin our analysis by reaffirming certain bedrock principles of our

criminal justice system. The Double Jeopardy Clause of the Fifth Amendment

of the United States Constitution guarantees that no person shall "be subject

for the same offence to be twice put in jeopardy of life or limb." U.S. Const.

amend. V. The New Jersey Constitution similarly provides that "[n]o person

shall, after acquittal, be tried for the same offense." N.J. Const. art. I, ¶ 11.

Our Supreme Court "has consistently interpreted the State Constitution's

double-jeopardy protection as coextensive with the guarantee of the federal

Constitution." State v. Miles, 

229 N.J. 83

, 92 (2017). Along these lines, it is

well settled that "a trial [judge] must dismiss an indictment if prosecution

would violate the defendant's constitutional rights" of freedom from double

jeopardy. State v. Abbati, 

99 N.J. 418

, 425 (1985).

                                                                            A-0838-20T4
                                         19
      When the defendant is tried by a jury in a criminal case, double jeopardy

protections are not dependent on a completed trial, but rather "attaches after

the jury is impaneled and sworn." 

Allah, 170 N.J. at 279

. "Because jeopardy

attaches before the judgment becomes final, the constitutional protection also

embraces the defendant's 'valued right to have his trial completed by a

particular tribunal.'"   Arizona v. Washington, 

434 U.S. 497

, 503 (1978)

(quoting Wade v. Hunter, 

336 U.S. 684

, 689 (1949)).      From that point on the

defendant "is entitled to have the trial proceed to its normal conclusion, i.e.,

judgment by the [trial judge] or verdict of the jury." 

Farmer, 48 N.J. at 169

.

"If the jury is discharged before that time without [the defendant's] consent or

without legal justification, the abortive ending is equivalent to acquittal and

bars retrial."

Ibid. The Double Jeopardy

Clause does not, however, "create an absolute bar

in every case of retrial." State v. Dunns, 

266 N.J. Super. 349

, 362 (App. Div.

1993). "[A] defendant's valued right to have his trial completed by a particular

tribunal must in some instances be subordinated to the public's interest in fair

trials designed to end in just judgments." 

Wade, 336 U.S. at 689

. That is not a

foreign concept in New Jersey. We have likewise stated "[t]o set free criminal

suspects whenever a trial is aborted would deny the innocent the protection

due them and defeat the social contract upon which government is based."

                                                                        A-0838-20T4
                                      20
State v. Torres, 

328 N.J. Super. 77

, 86 (App. Div. 2000). In 1966, Justice John

J. Francis writing for the majority in Farmer explained:

            the double jeopardy protection does not mean that
            once an accused has been put on trial regularly, the
            proceeding must run its ordinary course to judgment
            of conviction or acquittal. The rule does not operate
            so mechanistically. If some unexpected, untoward and
            undesigned incident or circumstance arises which does
            not bespeak bad faith, inexcusable neglect or
            inadvertence or oppressive conduct on the part of the
            State, but which in the considered judgment of the
            trial [judge] creates an urgent need to discontinue the
            trial in order to safeguard the defendant against real or
            apparent prejudice stemming therefrom, the Federal
            and State Constitutions do not stand in the way of
            declaration of a mistrial. And this is true even if the
            conscientious act of the trial judge may be
            characterized as the product of "extreme solicitude" or
            "overeager solicitude" for the accused. Moreover, if
            an incident or circumstance of that nature moves the
            [trial judge] to order a mistrial not only to safeguard
            the right of the defendant to a full and fair trial, but
            also to protect the right of society to have its trial
            processes applied fully and fairly in the due
            administration of the criminal law, there is even less
            basis for a claim of trespass upon the privilege against
            double jeopardy. Clearly the societal right to have the
            accused tried and punished if found guilty stands side
            by side with the right of the accused to be prosecuted
            fairly and not oppressively. While the public right,
            when it must be considered alone, may not weigh as
            heavily in the scale as that of the defendant because of
            the constitutional dimensions of the privilege against
            double jeopardy and the superior capacity of the State
            to investigate and prepare for prosecutions,
            nevertheless when exercise of the trial [judge's]
            discretion may fairly be said to serve both interests,

                                                                        A-0838-20T4
                                       21
             there is certainly less substantial reason to question its
             propriety.

             

[Farmer, 48 N.J. at 174-75

(emphasis added) (citations
             omitted).]

      Of course, it is well established that mistrials declared with the

defendants' consent do not bar retrial.       State v. Kelly, 

201 N.J. 471

, 485

(2010). But even if a defendant objects to the declaration of a mistrial, as in

this case, "termination of a trial after jeopardy attaches does not necessa rily

prohibit subsequent re-prosecution."       

Allah, 170 N.J. at 280

.        "Only the

improper termination of proceedings bars retrial."

Ibid. “Where the [trial

judge] finds a sufficient legal reason and manifest necessity to terminate a

trial, the defendant's right to have his initial trial completed is subordinated to

the public's interest in fair trials and reliable judgments." 

Loyal, 164 N.J. at 435

(citing 

Wade, 336 U.S. at 689

).

      Referring to longstanding legal principles even before Farmer, the New

Jersey Supreme Court set out general guidelines for determination of whether

the discharge of the jury prior to verdict is justified:

             "[I]f the trial was terminated or the jury discharged
             before verdict because of incapacitating illness of the
             judge or a juror or jurors or of the defendant, or
             misconduct or disqualification of some members of
             the jury, or on account of an untoward incident that
             renders a verdict impossible, or some undesigned
             matter of absolute necessity, or the failure of the jury
             to agree upon a verdict after a reasonable time for
                                                                            A-0838-20T4
                                       22
            deliberation has been allowed, subsequent prosecution
            for the offense [is] not barred," for reasons of justice
            and the public interest.

            [State v. Romeo, 

43 N.J. 188

, 195 (1964), cert. denied,
            

379 U.S. 970

(1965) (second alteration in original)
            (quoting State v. Williams, 

30 N.J. 105

, 121 (1959)).]

      In addition to the constitutional prohibition, defendants are also

"provid[ed] statutory protection from double jeopardy[.]" 

Allah, 170 N.J. at 279

. The New Jersey Legislature enacted N.J.S.A. 2C:1-9, which effectively

"adopted the test enunciated in State v. Romeo[.]" 

Dunns, 266 N.J. Super. at 364

. N.J.S.A. 2C:1-9(d)(3) provides that the prohibition of double jeopardy

does not apply where "[t]he trial [judge] finds that the termination [of the trial]

is required by a sufficient legal reason and a manifest or absolute or overriding

necessity." If a trial is terminated over the objection of a defendant due to a

manifest necessity, "a second proceeding is constitutionally permissible."

Torres, 328 N.J. Super. at 86

.

      In balancing the competing interest of such a mistrial, "[t]he manifest

necessity standard provides sufficient protection to the defendant's right in

having his case decided by the jury first selected while maintaining the public's

interest in fair trials designed to conclude in just judgments."

Ibid. As the United

Stated Court of Appeals for the Third Circuit has recently and

insightfully proclaimed:

                                                                          A-0838-20T4
                                        23
            The Fifth Amendment's Double Jeopardy Clause
            ordinarily bars retrials. But a retrial after a mistrial
            does not amount to double jeopardy when the mistrial
            was manifestly necessary. Though manifest necessity
            requires a "high degree of necessity," making that
            judgment call is "reserved to the broad discretion of
            the trial judge." We scrutinize a mistrial more closely
            if the trial judge has not exercised his "sound
            discretion" or if the prosecutor appears to be
            "harass[ing]" or gaining a "tactical advantage over the
            accused."

            [Orie v. Sec'y Pennsylvania Dep't of Corr., 

940 F.3d 845

, 851 (3d Cir. 2019) (alteration in original) (first
            quoting Renico v. Lett, 

559 U.S. 766

, 774 (2020); then
            quoting 

Arizona, 437 U.S. at 508

, 510 n.28).]

      "The 'manifest necessity' standard has existed under the federal

Constitution since at least 1824, . . . and has long been recognized as guiding

our courts in interpreting New Jersey's double jeopardy prohibition under

similar circumstances."      

Loyal, 164 N.J. at 453

(Coleman, J., dissenting).

"Because a defendant's right to be free from double jeopardy is fundamental,

the State shoulders a 'heavy' burden of demonstrating the '"manifest necessity"'

for any mistrial declared over the objection of the defendant.'"

Ibid. (quoting Arizona, 434

U.S. at 505).

      Determining whether manifest necessity or the ends of public justice

require a trial judge to declare a mistrial depends on the unique facts of the

case and the sound discretion of the trial judge.

Ibid. As the United

States

Supreme Court noted,
                                                                       A-0838-20T4
                                        24
            the law has invested Courts of justice with the
            authority to discharge a jury from giving any verdict,
            whenever, in their opinion, taking all the
            circumstances into consideration, there is a manifest
            necessity for the act, or the ends of public justice
            would otherwise be defeated. They are to exercise a
            sound discretion on the subject; and it is impossible to
            define all the circumstances, which would render it
            proper to interfere. To be sure, the power ought to be
            used with the greatest caution, under urgent
            circumstances, and for very plain and obvious
            causes[.]

            [United States v. Perez, 22 U.S. (9 Wheat.) 579, 580
            (1824).]

      But there are no rigid rules as to what constitutes "manifest necessity,"

and "[b]oth the United States and the New Jersey Supreme Courts have

recognized that it is impossible to define all of the circumstances where there

is sufficient reason to declare a mistrial." 

Dunns, 266 N.J. Super. at 364

; see

Renico, 559 U.S. at 774

(noting that "the 'manifest necessity' standard 'cannot

be interpreted literally,' and that a mistrial is appropriate where there is a

'"high degree"' of necessity." (citing 

Arizona, 434 U.S. at 506

)).

                                       B.

      That brings us to the heart of this case: whether the ongoing global

COVID-19 pandemic—and its associated enormous practical challenges to the

fair and just administration of justice—provided the judge with a sufficient



                                                                       A-0838-20T4
                                       25
legal reason and manifest necessity, under the unique facts of this case, to

terminate the trial without violating defendants' double jeopardy rights.

      Clearly, "[w]hether 'manifest necessity' or 'the ends of public justice'

require declaration of a mistrial depends on the unique facts of the case and the

sound discretion of the trial [judge]." 

Loyal, 164 N.J. at 435

. It is undisputed

that these particular facts—in the midst of a global pandemic—are unique.

That is an understatement.

      In reviewing a trial judge's sua sponte decision to terminate a jury trial

after the jury had been sworn, because in the trial judge's judgment a sufficient

legal reason and manifest necessity exists to warrant a mistrial, we turn to

guidance from our Supreme Court, which provided relevant considerations:

            Did the trial [judge] properly exercise [his or her]
            discretion so that a mistrial was justified? Did [the
            trial judge] have a viable alternative? If justified,
            what circumstances created the situation? Was it due
            to prosecutorial or defense misconduct? Will a second
            trial accord with the ends of public justice and with
            proper judicial administration? Will the defendant be
            prejudiced by a second trial, and if so, to what extent?

            [Id. at 437 (quoting 

Rechtschaffer, 70 N.J. at 410-11

).]

To our knowledge, there are no published opinions in New Jersey squarely

dealing with this inquiry.

      In exercising sound judgment about whether the ongoing COVID-19

pandemic provides a sufficient legal reason and manifest necessity to sua
                                                                  A-0838-20T4
                                    26
sponte terminate a trial without violating a defendant's double jeopardy

protections, and adhering to guidance provided by our Court, we have

extrapolated from the caselaw certain factors for trial judges to consider: (1)

the circumstances that created the urgent need to discontinue the trial,

including whether it was due to bad faith, inexcusable neglect, inadvertence,

oppressive conduct, or prosecutorial or defense misconduct; (2) the existence

of viable alternatives to a mistrial; (3) the extent of any prejudice to a

defendant by a second trial; (4) whether a second trial accords with the ends of

public justice and judicial administration; and (5) any other relevant factors

unique to the case. Applying this framework to the facts of this case, we see

no abuse of discretion.

                                       (i)

                  The circumstances that created the situation

      The ongoing COVID-19 pandemic is a grave, unprecedented, and

unpredictable public health crisis which has prompted stay-at-home orders,

business closures, and ever-changing operational restrictions.      Neither the

judge nor the parties here could have predicted the restrictions on the judiciary

that would become necessary as a result of the pandemic, and even today it

remains unclear when jury trials may be able to return to the status quo.



                                                                        A-0838-20T4
                                       27
      Accordingly, the judge noted "[t]his situation certainly was not created

by any prosecutorial misconduct, as the State has been ready and waiting to

resume from the very day months ago when it was permitted." Furthermore,

"[t]he initial suspension of trial in March [2020] due to the pandemic was

beyond the control of all parties and resulted in an arguably untenable delay,

threatening the fairness of the trial, even at the time [our] Supreme Court

allowed the resumption of suspended trials in June [2020]."         The judge

properly did not find fault in defendants' refusal to consent to the resumption

of the trial in June 2020, particularly given defendants' and defense counsels'

high-risk status for complications from COVID-19. Defense counsel acted in

good faith in expressing their concerns for the health of themselves,

defendants, and those participating in the trial.     Thus, the circumstances

creating the predicament were beyond the control of all involved and were not

the result of prosecutorial or defense misconduct.

                                      (ii)

                      The existence of viable alternatives

      Unlike State v. Georges, 

345 N.J. Super. 538

(App. Div. 2001), and

State v. Love, 

282 N.J. Super. 590

(App. Div. 1995), there was simply no

viable or less drastic alternative to declaring a mistrial.   And contrary to

defendants' argument, the judge properly considered the alternatives proposed

                                                                       A-0838-20T4
                                       28
by the parties. Defense counsel proposed that the trial remain suspended until

it could resume under the pre-pandemic conditions. But that could be many

more months in addition to the seven that had elapsed. 15 As Judge Edwin H.

Stern noted, "a delay during any trial of four months is inexcusable and affects

the fact finder's recollection and assessment of credibility." State v. Leonard,

234 N.J. Super. 183

, 190, n.4 (App. Div. 1989); see United States v. Chapman,

524 F.3d 1073

, 1083 (9th Cir. 2008) (explaining that a trial judge's

determination that a jury's attention span could not withstand a delay of

between two and four weeks was due substantial deference in determining

appropriateness of a mistrial). Here, the judge patiently waited seven months

before raising the subject of declaring a mistrial, which at that point had no

reasonable prospects of resuming in the near future.



15
     On September 16, 2020, Dr. Anthony Fauci, Director of the National
Institute of Allergy and Infectious Diseases and one of the lead members of the
White House Coronavirus Task Force, estimated that the country would return
to a "reasonable form of normality" by the end of 2021. See Betsy McKay, Dr.
Fauci Says 'There Will Be an End' to Covid-19, Wall Street Journal (Sept. 16,
2020, 10:24 PM), https://www.wsj.com/articles/fauci-says-there-will-be-an-
end-to-covid-19-11600309449.        Recently, Dr. Fauci has suggested that,
assuming the United States achieves a vaccination rate of seventy-five percent
to eighty percent, we may see "some degree of normality that is close to where
we were before" at the end of 2021. See Alvin Powell, Fauci Says Herd
Immunity Possible by Fall, 'Normality' by End of 2021, Harv. Gazette (Dec.
10, 2020) https://news.harvard.edu/gazette/story/2020/12/anthony-fauci-offers-
a-timeline-for-ending-covid-19-pandemic/.
                                                                        A-0838-20T4
                                      29
      Although polling the jury would have created a more complete record

about terminating the trial, the judge correctly found that doing so was not a

viable alternative. Polling the jury in October 2020 would not have answered

the question of whether the jurors could continue to serve for an indefinite

period of time and whether they could have been able to recall the evidence at

some unknown point in the future when the trial eventually resumed. Under

the unique and extraordinary circumstances of this case, there were simply no

alternatives to a mistrial.

      As we previously explained, a trial judge's discretion is exercised

improperly "if the [trial judge] has an appropriate alternative course of action."

Allah, 170 N.J. at 281

.       "[A] curative instruction, a short adjournment or

continuance, or some other [such] remedy, may provide a viable alternative to

a mistrial, depending on the facts of the case." 

Smith, 224 N.J. at 47

; see

State v. Gallegan, 

117 N.J. 345

, 353 (1989) (noting that under appropriate

circumstances, an adjournment is one of "the alternatives given to [trial

judges] in order to avoid the unnecessary termination of proceedings").

      For example, in State v. Modell, 

260 N.J. Super. 227

, 232 (App. Div.

1992), defense counsel expressed concern as he began to present his case that

the alleged victim, who had appeared on behalf of the State, would fail to

appear for defendant's case with certain records even though the defense had

                                                                          A-0838-20T4
                                        30
served him with two subpoenas. The trial judge considered the alternative of

striking the testimony of the witness, which would have necessitated dismissal

of four counts of the indictment, but instead declared a mistrial based on

"manifest necessity."

Ibid. We were “convinced

that the declaration of a

mistrial by the [trial judge] served the ends of public justice while at the same

time . . . protected the defendant's rights."

Id. at 245.

      In 

Georges, 345 N.J. Super. at 545-47

, we determined there existed no

manifest necessity for a sua sponte mistrial where two jurors were excused

because their parents had died during the trial and the prosecutor went on a

scheduled vacation, causing a two-week delay.               The trial judge, over

defendant's objection, had declared the mistrial a manifest necessity because

the delay of two weeks between the close of evidence and resumption of the

trial was "simply too great to permit the jury to fairly remember and evaluate

the testimony[.]"

Id. at 541.

We reversed, concluding "there was no particular

urgency that necessitated the trial judge's sua sponte declaration of a mistrial

before hearing the arguments of all counsel and examining alternatives to a

mistrial," including "question[ing] the jurors to determine their comfort level

with proceeding, and explain[ing] the availability of read-back testimony,

before determining whether the time lapse was fatal to a fair trial."

Id. at 547.


                                                                         A-0838-20T4
                                         31
      And in 

Love, 282 N.J. Super. at 593

, the trial judge sua sponte declared

a mistrial upon learning of his mother-in-law's unexpected death.              We

concluded that the trial judge should have considered "[a]ny reasonable

alternative" before declaring the mistrial without defendant's express c onsent,

but was nonetheless satisfied that the sua sponte declaration of mistrial did not

preclude the retrial because it was not "designed to help the prosecution or aid

the State's cause or for any reason based upon the conduct of the trial or

proceedings."

Id. at 598.

However, the federal court subsequently granted the

defendant's petition for a writ of habeas corpus and held that "[t]he availability

of several adequate, less drastic alternatives," including adjourning the trial or

continuing the trial with a different judge, negated a finding of manifest

necessity and compelled the federal court "to conclude that petitioner's retrial

following a mistrial violated the Double Jeopardy Clause of the United States

Constitution." Love v. Morton, 

944 F. Supp. 379

, 389-91 (D.N.J. 1996), aff'd,

112 F.3d 131

, 139 (3d Cir. 1997).

      Here, viable alternatives such as the ones present in the cases discussed

above were not readily available, as a further continuance or adjournment for

an indefinite period was not feasible given the state of the pandemic. As

discussed previously, the judge and counsel conferenced about ways in which

the trial could proceed under our Supreme Court's Omnibus Orders. The judge

                                                                         A-0838-20T4
                                       32
and counsel contemplated moving to a larger courtroom that would be more

conducive to social distancing, as well as utilizing plexiglass barriers and

personal protective equipment such as masks and face shields, but defense

counsel rejected these suggestions, citing concerns that it could impact the

presentation of their case. The judge and counsel also discussed the possible

need to voir dire the jury prior to resuming the trial and their potential inability

to recall testimony from twenty-nine witnesses from months earlier. The judge

considered the possibility of playing back the testimony to the jury but

expressed concern that playback "months removed from when the jury first

heard the testimony, with the witnesses, in person," would be insufficient

considering the circumstances. The judge was left with no viable alternatives

to proceed with the case.

                                       (iii)

          The extent of any prejudice to a defendant by a second trial

      There is no indication on this record that defendants will be prejudiced

by a second trial. Defendants contend that there was no prejudice in allowing

the matter to remain suspended until the trial could safely resume at some

indefinite point in the future, but they contend that they will suffer prejudice if

they are retried. Smith argues that she will be prejudiced because she will be

unable to retain her counsel for a second trial, presumably referring to the

                                                                           A-0838-20T4
                                        33
lawyer who is ninety-seven-years old. But Smith retained co-counsel, from the

same law firm, and there is no suggestion that he is unable to represent Smith

in the second trial.

      Additionally, defendants argue that they will be prejudiced by the

mistrial because they will remain detained for an indeterminate period. They

contend that "[t]here is no guidance on when a multi-defendant, three-month

jury trial, will even be considered a candidate for trial during the pandemic."

That is true. However, there is also no guidance on when their trial will be

able to resume under the pre-pandemic "gold standard" standard defendants

seek. The only quick solution to their continued incarceration would have

been for defendants to consent to the resumption of their trial in June 2020.

As the judge found, defendants had credible reasons for declining to do so. At

this point, as the second wave of the pandemic rages on, defendants are facing

a long period of incarceration regardless of whether they wait for the

resumption of their trial or retrial.   And as counsel explained during oral

argument, defendants preferred remaining detained until the trial can be safely

resumed.




                                                                       A-0838-20T4
                                        34
                                       (iv)

                Whether a second trial accords with the ends of
                  public justice and judicial administration

      A second trial will accord with the ends of public justice and proper

judicial administration. See 

Loyal, 164 N.J. at 437

. The judge found—and we

agree—there was "an urgent need to discontinue the trial . . . to safeguard the

defendants from any prejudice stemming from the delay and to protect the ends

of public justice, as the totality of the circumstances of the continued

suspension have only eroded and will continue to erode the prospects of a fair

and just result in this trial." We agree with defendant Cousins that the March

2020 suspension was consistent with the public interest in protecting the

participants from COVID-19. Seven months later, a continued suspension of

the trial to an indeterminate date in the future will violate "the right of society

to have its trial processes applied fully and fairly in the due administration of

the criminal law[.]" 

Farmer, 48 N.J. at 175

. Furthermore, defendants will be

better prepared for retrial because they now have the benefit of knowing the

testimony from the witnesses who testified for the State.

                                        (v)

           Any other relevant factor under the unique facts the case

      A mistrial has been justified based on "manifest necessity" where, as i n

this case, there was an unexpected indefinite or lengthy mid-trial delay that
                                                                     A-0838-20T4
                                    35
would affect the jury's recollection and assessment of credibility.            For

example, in State v. Mendoza, 

305 N.W.2d 166

, 170 (Wis. Ct. App. 1981), the

appellate court found that the trial judge's sua sponte declaration of a mistrial

was justified under the "manifest necessity" standard where a juror was

unavailable for an indefinite period due to illness.       See United States v.

Brandner, 

90 F. Supp. 3d 883

, 887-88 (D. Alaska 2015) (declaring a mistrial

after defense counsel's unanticipated and serious illness resulted in a four-

month delay in the midst of trial); Commonwealth v. Robson, 

337 A.2d 573

,

576-78 (Pa. 1975) (affirming the termination of trial based on "manifest

necessity" where the trial judge's illness suspended—and prevented the

continuation of—trial for several weeks).

      Defendants argue that, like in Georges and Love, the judge rendered his

mistrial declaration in haste. However, he allowed the suspension to endure

for seven months, and only then did he conduct numerous status conferences,

hear oral argument, and issue a comprehensive oral decision. At the time the

judge declared the mistrial, the trial had been suspended as a result of the

COVID-19 pandemic, with no end in sight.

      As the judge found, even if the trial could have resumed in October 2020

and a sufficient number of the existing jurors were still available, he had "great

concern" as to whether the jury would be able to consider the evidence fairly

                                                                         A-0838-20T4
                                       36
after the lengthy delay. The jury would have to consider the testimony of the

twenty-nine witnesses who testified in February and March 2020, and the

testimony of any additional witnesses to be called by the State or the defense.

That would be very difficult, even with the option of playback, because—as he

found—playback "would occur many months removed from when the jurors

actually had the opportunity to listen to the testimony, view the evidence and

do that in conjunction with an assessment and evaluation of the demeanor of

the witnesses." We will not second guess the judge's findings, especially since

he presided over the commencement of the trial and was in the best position to

fairly assess the situation that existed at the beginning of the case and

thereafter.

      This case is also distinguishable from Leonard, on which defendant

Cousins relies. In that case the defendant was tried in municipal court on a

driving while under the influence charge. 

Leonard, 234 N.J. Super. at 184

. On

the first day of trial, the State presented the testimony of its primary witness, a

former municipal police officer, who had responded to the scene of the

accident.

Id. at 185.

The trial judge adjourned the trial at the conclusion of

the witness's direct and cross-examination testimony, subject to recall by the

State for continued testimony.

Ibid. The witness did

not appear when the trial

resumed four months later, and the trial judge discovered that a transcript of

                                                                          A-0838-20T4
                                        37
the witness's testimony could not be prepared due to a tape malfunction.

Ibid. The trial judge

sua sponte declared a mistrial over the defendant's counsel's

objections because four months had passed since the hearing date.

Ibid. We concluded that

under those circumstances, the defendant was entitled "to have

the [trial] judge decide his guilt or innocence without giving the State the

opportunity to start anew."

Id. at 190

-91. 
We held that under the "totality of

facts," including the missing transcript and absent witness, that "defendant

could not be retried as a result of the trial judge's inappropriate exercise of

discretion."
 Id. at 191-92.

      In Leonard we explained that although there was a deficiency in the

record, the Law Division could have either supplemented the record on appeal

or conducted a plenary trial.
 

Id. at 190

-91. 
Here, rather than being prompted

by a deficiency in the record, the declaration of the mistrial was justified by

the unique circumstances of this case coupled with the pandemic. Moreover,

although the we did not consider the length of the delay in making our

determination, we noted that "a delay during any trial of four months is

inexcusable and affects the fact finder's recollection and assessment of

credibility."
 Id. at 190 
n.4. Certainly here, as the judge found, the entirely

unexpected seven-month delay caused by the COVID-19 pandemic created a

"manifest necessity" for the declaration of a mistrial because it affected the

                                                                       A-0838-20T4
                                      38
juror's ability to recall the testimony of the twenty-nine witnesses who had

testified.

       We reject defendants' additional argument that the trial judge was

without authority to declare a mistrial. Our Court set forth a plan "to limit

physical interactions in our courts to the greatest extent possible and shift to

use video and phone conferencing options for attorneys, litigants, and the

public." See Notice New Jersey Court Operations–COVID-19 Coronavirus:

Rescheduling of In-Court Proceedings Scheduled for the Week Beginning

Monday, March 16, 2020; Continuation of All Critical Functions 1 (March 15,

2020). Thus, although jury trials were suspended, court operations, including

motions, continued with or without consent, albeit virtually. In fact, in this

case, the judge conducted several status conferences. Thereafter, by order

issued on June 22, 2020, our Court authorized ongoing jury trials that had been

suspended to resume "consistent with public health precautions with the

consent of all parties[.]" Fourth Omnibus Order 1.

       Throughout this period, New Jersey courts have continued to sustain

court operations to the greatest extent possible. At no point did our Court

order that all motions, including motions for a mistrial, were suspended and

thus the judge's authority was not circumscribed. In fact, in its latest order

dated November 16, 2020, our Court suspended in-person jury trials, but not

                                                                        A-0838-20T4
                                      39
all court operations, and specifically provided that judge's "in any individual

matter consistent with Rule 1:1-2(a)" could "suspend proceedings, extend

discovery or other deadlines, or otherwise accommodate the legitimate needs

of parties, attorneys, and others in the interests of justice[.]" See November

16, 2020 Suspension 6. Thus, the judge had the authority to declare a mistrial

in a case that had been suspended on March 17, 2020, and that had not

resumed seven months later due to the pandemic.

      To summarize, we conclude that the judge did not abuse his discretion

by determining the extraordinarily unique circumstances of this case created a

manifest necessity for a mistrial, and by holding "the ends of justice . . . cannot

be achieved without aborting the trial[.]" 
Farmer, 48 N.J. at 171
. An entirely

"unexpected, untoward and undesigned incident or circumstance" arose in the

form of the COVID-19 pandemic that did "not bespeak bad faith, inexcusable

neglect or inadvertence or oppressive conduct on the part of the State, but

which in the considered judgment of the trial [judge] create[ed] an urgent need

to discontinue the trial in order to safeguard the defendant against real or

apparent prejudice[.]"
 Id. at 174. 
   As in Farmer, there was no doubt that the

judge's primary motive for declaring the mistrial was his sincere effort to

protect defendants.
 Id. at 175. 
And that is exactly what the judge did here.

Thus, double jeopardy would not be violated by a retrial because, under

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N.J.S.A. 2C:1-9(d)(3), the termination was "required by a sufficient legal

reason and a manifest or absolute or overriding necessity."

      Affirmed.




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