State v. Rodney J. Miles a/k/a Jamal D. Allen (077035) (Camden County and Statewide) ( 2017 )


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  •                                                      SYLLABUS
    
    (This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
    convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
    interest of brevity, portions of any opinion may not have been summarized.)
    
                                        State v. Rodney J. Miles (A-72-15) (077035)
    
    Argued January 4, 2017 -- Decided May 16, 2017
    
    Timpone, J., writing for a majority of the Court.
    
             In this appeal, the Court clarifies the methodology to be used in analyzing whether two offenses are the “same
    offense” for double jeopardy purposes. Since the 1980s, New Jersey courts have applied both the same-evidence test
    and the same-elements test articulated in Blockburger v. United States, 
    284 U.S. 299
     (1932), in double jeopardy
    determinations. A finding that offenses met either test resulted in double jeopardy protection for the defendant.
    
             In October 2010, the Camden County police arrested defendant for selling marijuana to an undercover
    police officer. Defendant was charged in a warrant complaint with possession of marijuana with intent to distribute
    and possession of a controlled dangerous substance (CDS) with intent to distribute on or within 1000 feet of a school
    property. In a separate municipal summons, defendant was charged with the disorderly-persons offense of
    possession of fifty grams or less of marijuana. Those charges arose from the same attempted sale.
    
              A grand jury returned an indictment charging defendant with the offenses in the warrant complaint.
    Defendant then appeared pro se in municipal court to resolve the disorderly-persons offense. At some point before
    that video proceeding, the original municipal charge was amended to a different disorderly-persons offense—
    loitering to possess marijuana. Defendant asked the municipal court judge, “why they got me going to Superior
    Court for this, Your Honor?” The judge then responded that defendant was “not going to Superior Court for this,”
    but rather for an unrelated child support issue. Defendant then pled guilty to loitering to possess marijuana.
    
             Thereafter, defendant moved to dismiss the Superior Court indictment on double-jeopardy grounds, arguing
    that prosecution on the possession charges was barred because he had already pled guilty to an offense that arose
    from the same conduct. The Superior Court denied defendant’s motion to dismiss, reasoning that prosecution on the
    indicted charges was not barred because it required proof of an additional element—proximity to a school.
    Defendant pled guilty to possession of CDS with intent to distribute within 1000 feet of a school (the school-zone
    charge), but preserved his right to appeal the denial of the motion to dismiss.
    
              On appeal, the Appellate Division remanded for a finding on the circumstances surrounding the amendment
    of the disorderly-persons offense. The panel noted that a plea to the original municipal charge, instead of the
    amended one, could have led to a different result after applying the double-jeopardy analysis.
    
            On remand, the Superior Court found no direct evidence as to the circumstances surrounding the
    amendment, and the prosecutor represented that his office was not informed of defendant’s municipal court
    proceedings. Despite defendant’s expressed confusion during the municipal court plea hearing, the Superior Court
    concluded that the school-zone prosecution was not precluded by notions of fundamental fairness.
    
              Defendant appealed again, arguing that double jeopardy barred prosecution on the school-zone charge. The
    Appellate Division agreed, finding that, although the second prosecution was not barred under the same-elements
    test, it was barred under the same-evidence test. 
    443 N.J. Super. 212
    , 220, 225-27 (App. Div. 2015).
    
             The Court granted the State’s petition for certification. 
    225 N.J. 339
     (2016).
    
    HELD: New Jersey now joins the majority of jurisdictions in returning to the Blockburger same-elements test as the
    sole test for determining what constitutes the “same offense” for purposes of double jeopardy. In the interest of justice,
    the Court applied both the same-elements test and the now-replaced same-evidence test in this case; going forward, for
    offenses committed after the issuance of this opinion, the same-elements test will serve as the singular framework for
    determining whether two charges are the same offense for purposes of double-jeopardy analysis.
    
                                                              1
    1. Here, the municipal court had jurisdiction to resolve defendant’s disorderly-persons charge pursuant to N.J.S.A.
    2B:12-17, and failure to join does not automatically bar subsequent prosecution. For judicial efficiency and fairness to
    defendants, the Court urges careful coordination between the municipal courts and county prosecutors. (pp. 8-10)
    
    2. The Court has consistently interpreted the State Constitution’s double-jeopardy protection as coextensive with
    the guarantee of the federal Constitution. A prime concern when reviewing a double-jeopardy claim is whether the
    second prosecution is for the same offense involved in the first. (pp. 10-11)
    
    3. The United States Supreme Court first announced its test for determining whether a second prosecution is for the
    same offense in Blockburger, supra, 284 U.S. at 304: If each statute at issue requires proof of an element that the
    other does not, they do not constitute the same offense and a second prosecution may proceed. This has come to be
    known as the same-elements test. (pp. 11-12)
    
    4. The Court read the language in Illinois v. Vitale, 
    447 U.S. 410
    , 421 (1980), as creating an alternative to
    Blockburger’s same-elements test—the same-evidence test. The United States Supreme Court reached the same
    conclusion in Grady v. Corbin, 
    495 U.S. 508
    , 510 (1990), but revised its position in United States v. Dixon, 
    509 U.S. 688
    , 704, 708-09 (1993), in which it deemed the same-evidence test unworkable and reinstated the Blockburger
    same-elements test as the sole measure of whether two offenses constitute the same offense. (pp. 12-14)
    
    5. Since Dixon, the majority of states have similarly ruled that the Blockburger same-elements test sets forth the
    proper test for determining whether two charges are the same offense. Until this case, the Court has not had
    occasion to reevaluate double-jeopardy jurisprudence in light of Dixon’s return to the same-elements test. As a
    result, appellate panels have split over whether the same-evidence test still applies in New Jersey. (pp. 14-16)
    
    6. The Court now adopts the same-elements test as the sole double-jeopardy analysis, thereby realigning New
    Jersey law with federal law. The same-elements test is effortlessly applied at early stages of prosecution; it is
    capable of producing uniform, predictable results; and it aids defendants by reducing multiple court appearances.
    Rule 3:15-1(b) bars subsequent prosecutions for indictable offenses, and failure by the prosecution to properly join
    indictable offenses bars a subsequent prosecution. State v. Williams, 
    172 N.J. 361
    , 368 (2002). The Court
    recognizes a narrow circumstance where it is possible that neither the same-elements test nor the rule in Williams
    would prevent a second prosecution; if those unlikely events unfolded, the second prosecution might well be barred
    on joinder or fundamental fairness grounds. As a further safeguard, the Court invites the Supreme Court Committee
    on Criminal Practice to review the joinder rule and consider adding non-indictable offenses to it. (pp. 16-21)
    
    7. Because the decision establishes a new rule of law, the Court applies the new singular same-elements standard
    prospectively to offenses committed after the date of this opinion. In fairness to defendant, the Court conducts
    double-jeopardy analysis using both the same-elements test and the now-removed same-evidence test. Application
    of the Blockburger same-elements test would lead to the conclusion that loitering to possess marijuana is not the
    same offense as possession within a school zone. Each offense contains at least one element not required to prove
    the other. Under the same-evidence test, however, successive prosecution for the school-zone offense is prohibited
    because it is based on the same evidence that supported the plea and conviction on the loitering offense. (pp. 21-23)
    
    8. For offenses committed after the issuance of this opinion, the same-elements test will serve as the singular
    framework for determining whether two charges are the same offense for double-jeopardy analysis. (p. 23)
    
            The judgment of the Appellate Division is AFFIRMED. Defendant’s conviction and sentence on the
    school-zone offense are vacated.
    
             JUSTICE ALBIN, DISSENTING, expresses the view that majority’s new rule cannot be squared with the
    principles of fairness that previously animated New Jersey’s double-jeopardy jurisprudence. According to Justice
    Albin, the majority’s reversion to the same-elements test will allow the State to pursue repeated prosecutions for the
    same offense despite an earlier conviction or acquittal.
    
             CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, and SOLOMON
    join in JUSTICE TIMPONE’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which
    JUSTICE LaVECCHIA joins.
    
                                                              2
                                            SUPREME COURT OF NEW JERSEY
                                              A-72 September Term 2015
                                                       077035
    
    STATE OF NEW JERSEY,
    
        Plaintiff-Appellant,
    
             v.
    
    RODNEY J. MILES (a/k/a JAMAL
    D. ALLEN),
    
        Defendant-Respondent.
    
    
             Argued January 4, 2017 – Decided May 16, 2017
    
             On appeal from and certification to the
             Superior Court, Appellate Division, whose
             opinion is reported at 
    443 N.J. Super. 212
             (App. Div. 2015).
    
             Joseph A. Glyn, Deputy Attorney General,
             argued the cause for appellant (Christopher
             S. Porrino, Attorney General of New Jersey,
             attorney).
    
             Brian P. Keenan, Assistant Deputy Public
             Defender, argued the cause for respondent
             (Joseph E. Krakora, Public Defender,
             attorney).
    
        JUSTICE TIMPONE delivered the opinion of the Court.
    
        In this appeal, we clarify the methodology to be used in
    
    analyzing whether two offenses are the “same offense” for double
    
    jeopardy purposes.     Since the 1980s, we have applied both the
    
    same-evidence test and the same-elements test in double jeopardy
    
    determinations.   A finding that offenses met either test
    
    resulted in double jeopardy protection for the defendant.     In
    
                                      1
    contrast, the federal courts and most state jurisdictions apply
    
    only the same-elements test, as articulated by the United States
    
    Supreme Court in Blockburger v. United States, 
    284 U.S. 299
    , 
    52 S. Ct. 180
    , 
    76 L. Ed. 306
     (1932).
    
         We now join the majority of jurisdictions in returning to
    
    the Blockburger same-elements test as the sole test for
    
    determining what constitutes the “same offense” for purposes of
    
    double jeopardy.   Here, because we are changing course, we
    
    examine the facts through the additional lens of the now-
    
    replaced same-evidence test as a matter of fairness to defendant
    
    Rodney Miles.
    
                                    I.
    
         In October 2010, the Camden County police arrested
    
    defendant for selling marijuana to an undercover police officer
    
    on the corner of 27th and Washington Streets in Camden, New
    
    Jersey.   Defendant was charged in a warrant complaint with
    
    possession of marijuana with intent to distribute, in violation
    
    of N.J.S.A. 2C:35-5(b)(12), and possession of a controlled
    
    dangerous substance (CDS) with intent to distribute on or within
    
    1000 feet of a school property, in violation of N.J.S.A. 2C:35-
    
    7.   In a separate municipal summons, defendant was charged with
    
    the disorderly-persons offense of possession of fifty grams or
    
    less of marijuana, in violation of N.J.S.A. 2C:35-10(a)(4).
    
    Those charges arose from the same attempted sale.
    
                                     2
        A Camden County grand jury returned an indictment charging
    
    defendant with the offenses in the warrant complaint.     Defendant
    
    then appeared pro se in municipal court to resolve the
    
    disorderly-persons offense charged in the municipal summons.
    
    Defendant appeared via video conference from the county jail,
    
    where he was being held on an unrelated child-support charge.
    
    At some point before that video proceeding, the original
    
    municipal charge was amended to a different disorderly-persons
    
    offense -- loitering to possess marijuana, in violation of
    
    N.J.S.A. 2C:33-2.1(b)(1).     Confusion ensued as evidenced by the
    
    following colloquy between the judge and defendant at the
    
    municipal court proceeding:
    
             Q. All right. You’re charged on October 15,
             2010, with loitering to possess marijuana at
             27th and Washington Street in Camden.
    
             A. Yes, sir.
    
             Q. Do you wish to have an attorney in this
             matter?
    
             A. No, sir. What -- they got me -- can I ask
             you something?   This is a municipal charge,
             right, Your Honor?
    
             Q. Yes.
    
             A. Well, why they got me going to Superior
             Court for this, Your Honor? That’s why I said
             I don’t understand.
    
             Q. No, no, you’re not going to Superior Court
             for this. You’re going to Superior Court for
             child support, sir.
    
    
                                      3
              A. No, no, no, they had me --
    
              Q. Sir.
    
              A. Okay.
    
              Q. Trust me.    I am not going to argue with
              you.
    
              A. No, I’m not arguing.
    
              Q. I’m not going to argue with you.
    
              A. Oh, okay.
    
              Q. You’re charged with loitering to possess
              marijuana in Camden, October 15, 2010. It’ll
              be a $500 fine plus mandatory costs. Do you
              understand the penalties?
    
              A. Yes, sir.
    
    Defendant then pled guilty to the charge of loitering to possess
    
    marijuana.
    
        Thereafter, defendant moved to dismiss the Superior Court
    
    indictment on double-jeopardy grounds, arguing that prosecution
    
    on the possession charges was barred because he had already pled
    
    guilty to an offense that arose from the same conduct.   Despite
    
    some puzzlement as to why the municipal court had amended the
    
    disorderly-persons offense, the Superior Court denied
    
    defendant’s motion to dismiss.   The Superior Court reasoned that
    
    prosecution on the indicted charges was not barred because it
    
    required proof of an additional element -- proximity to a
    
    school.   Defendant pled guilty to possession of CDS with intent
    
    to distribute within 1000 feet of a school (the school-zone
    
                                     4
    charge), but preserved his right to appeal the denial of the
    
    motion to dismiss.
    
        On appeal, the Appellate Division remanded for a finding on
    
    the circumstances surrounding the amendment on the disorderly-
    
    persons offense, specifically focusing on whether the prosecutor
    
    was involved in amending the charge.   The panel noted that a
    
    plea to the original municipal charge, instead of the amended
    
    one, could have led to a different result after applying the
    
    double-jeopardy analysis.
    
        On remand, the Superior Court found no direct evidence as
    
    to the circumstances surrounding the amendment, but learned that
    
    it was typical in municipal court to amend charges where
    
    appropriate to help defendants avoid more serious penalties and
    
    fines.   During the remand hearing, the prosecutor represented
    
    that his office was not informed of defendant’s municipal court
    
    proceedings.   The court, having determined that the prosecutor
    
    played no role in the amendment of the municipal court charge,
    
    found nothing atypical in the amendment process.
    
        Despite defendant’s expressed confusion during the
    
    municipal court plea hearing, the Superior Court found him to be
    
    “fully cognizant” of the pending Superior Court prosecution
    
    because he previously appeared in that court on four separate
    
    occasions for pretrial conferences on the indicted charges.      The
    
    
    
                                     5
    court concluded that the school-zone prosecution was not
    
    precluded by notions of fundamental fairness.
    
        Defendant appealed again, arguing that because the remand
    
    hearing revealed no definitive information on the circumstances
    
    of the amendment, the municipal court had jurisdiction over the
    
    disorderly-persons offense and, as a result, double jeopardy
    
    barred prosecution on the school-zone charge.    The Appellate
    
    Division agreed.    State v. Miles, 
    443 N.J. Super. 212
    , 220, 227
    
    (App. Div. 2015).    The panel recognized, however, that the
    
    Appellate Division was divided as to how to determine whether
    
    two offenses are the same offense for double-jeopardy purposes.
    
    Id. at 226-27.   It explained that some panels have adhered to
    
    current New Jersey law, under which subsequent prosecutions are
    
    barred under either of two tests -- the same-elements test or
    
    the same-evidence test -- and other panels have adopted the
    
    United States Supreme Court’s exclusive use of the same-elements
    
    test.   Ibid.   Having analyzed the facts under both tests, the
    
    Appellate Division found that, although the second prosecution
    
    was not barred under the same-elements test, it was barred under
    
    the same-evidence test.    Id. at 225-27.
    
        The State filed a petition for certification, which we
    
    granted.   
    225 N.J. 339
     (2016).
    
                                      II.
    
    
    
                                      6
        The State’s arguments are threefold:      (1) the municipal
    
    court lacked jurisdiction to unilaterally adjudicate defendant’s
    
    disorderly-persons offense after the grand jury returned the
    
    indictment on the other charges; (2) the municipal court’s
    
    action was beyond its jurisdiction and is thus a legal nullity
    
    which may not serve as the basis for defendant’s double jeopardy
    
    claim; and (3) in the alternative, if the municipal court is
    
    found to have had jurisdiction, the State urges this Court to
    
    eliminate the same-evidence test.     Under the same-elements test
    
    then, the State advocates that the school-zone prosecution is
    
    not barred by double jeopardy because both statutes at issue
    
    require proof of an element that the other does not.
    
        Defendant, in turn, contends that: (1) the municipal court
    
    had statutory jurisdiction over the disorderly-persons offense,
    
    thereby validating his claim that the school-zone prosecution
    
    constituted double jeopardy; and (2) even under a flexible
    
    application of the same-elements test, it is clear that the
    
    loitering offense does not require any more proof than the
    
    school-zone offense.
    
                                   III.
    
        Because the issue presented is purely a question of law, we
    
    review this case de novo.   Manalapan Realty, L.P. v. Twp. Comm.
    
    of Manalapan, 
    140 N.J. 366
    , 378 (1995).     When an appellate court
    
    reviews a trial court’s analysis of a legal issue, it does not
    
                                    7
    owe any special deference to the trial court’s legal
    
    interpretation.   Ibid.   “When a question of law is at stake, the
    
    appellate court must apply the law as it understands it.”      State
    
    v. Mann, 
    203 N.J. 328
    , 337 (2010).
    
                                    IV.
    
        The threshold issue in this case is whether the municipal
    
    court had jurisdiction to resolve the disorderly-persons
    
    offense.   Without jurisdiction, its adjudication of the
    
    disorderly-persons offense is a “legal nullity” and may not
    
    serve as the basis for defendant’s double-jeopardy claim.      See
    
    State v. Le Jambre, 
    42 N.J. 315
    , 319 (1964).    If it is a legal
    
    nullity, the State’s prosecution of the school-zone charge would
    
    automatically be permitted, and there would be no need to reach
    
    the double-jeopardy issue.   If the municipal court did have
    
    jurisdiction over the disorderly-persons offense, however,
    
    prosecution on the school-zone offense would be permitted only
    
    if it would not place defendant in double jeopardy.
    
        Municipal courts have limited jurisdiction over criminal
    
    cases; they may only conduct proceedings in a criminal case
    
    before indictment.   N.J.S.A. 2B:12-19(a).   Once an indictment is
    
    returned, “[a] municipal court shall not discharge a person
    
    charged with an indictable offense without first giving the
    
    county prosecutor notice and an opportunity to be heard.”
    
    N.J.S.A. 2B:12-19(b).
    
                                     8
        On the other hand, municipal courts have unlimited
    
    jurisdiction over disorderly-persons offenses, N.J.S.A. 2B:12-
    
    17(c), which “are not crimes within the meaning of the
    
    Constitution of this State,” N.J.S.A. 2C:1-4(b).        Rule 7.1
    
    delineates the scope of municipal court jurisdiction.        That rule
    
    also provides that disorderly-persons offenses are within the
    
    statutory jurisdiction of municipal courts.
    
        Rule 3:15-3(a)(1), a companion rule to Rule 7.1, directs
    
    municipal courts to “join any pending non-indictable complaint
    
    for trial with a criminal offense based on the same conduct or
    
    arising from the same episode.”        Subsection (c) of that rule,
    
    however, explicitly provides that failure to join does not bar a
    
    subsequent prosecution on an indictable offense, unless that
    
    prosecution is barred by constitutional protections, such as
    
    double jeopardy.   R. 3:15-3(c).       Nothing in the rule dictates
    
    that failure to join when joinder is appropriate strips a
    
    municipal court of its statutorily granted authority over
    
    disorderly-persons offenses.
    
        Here, defendant was charged in municipal court with a
    
    disorderly-persons offense, not with a criminal offense.
    
    N.J.S.A. 2B:12-19’s requirements therefore do not apply in the
    
    present case.   The municipal court had jurisdiction to resolve
    
    defendant’s disorderly-persons charge pursuant to N.J.S.A.
    
    2B:12-17.   Because Rule 3:15-3(c) limits the consequences for a
    
                                       9
    municipal court’s failure to join non-indictable offenses,
    
    moreover, failure to join does not automatically bar subsequent
    
    prosecution on the indictable offense so long as double-jeopardy
    
    concerns are allayed.
    
        For judicial efficiency and fairness to defendants, we urge
    
    careful coordination between the municipal courts and county
    
    prosecutors.    There will always be outlier situations when
    
    unintentional events get the better of the system.     Here,
    
    confusion bred more confusion, causing a failure to join the
    
    municipal charge with the indictable offenses.     Nevertheless, we
    
    have said before that a “breakdown in communications between
    
    state and municipal officials forms no justification for
    
    depriving an accused person of his right to plead double
    
    jeopardy.”     State v. Dively, 
    92 N.J. 573
    , 589 (1983) (quoting
    
    Robinson v. Neil, 
    366 F. Supp. 924
    , 929 (E.D. Tenn. 1973)).
    
        Having determined that the municipal court had
    
    jurisdiction, we next review whether the subsequent prosecution
    
    on the school-zone charge placed defendant in double jeopardy.
    
                                      V.
    
                                      A.
    
         The Double Jeopardy Clause of the Fifth Amendment provides
    
    that no person shall “be subject for the same offense to be
    
    twice put in jeopardy of life or limb.”     U.S. Const. amend. V.
    
    The New Jersey Constitution contains a similar provision:      “No
    
                                      10
    person shall, after acquittal, be tried for the same offense.”
    
    N.J. Const. art. I, ¶ 11.     This Court has consistently
    
    interpreted the State Constitution’s double-jeopardy protection
    
    as coextensive with the guarantee of the federal Constitution.
    
    State v. Schubert, 
    212 N.J. 295
    , 304 (2012); Dively, supra, 92
    
    N.J. at 578; State v. Barnes, 
    84 N.J. 362
    , 370 (1980).
    
        The Double Jeopardy Clause contains three protections for
    
    defendants.    It protects against (1) “a second prosecution for
    
    the same offense after acquittal,” (2)“a second prosecution for
    
    the same offense after conviction,” and (3) “multiple
    
    punishments for the same offense.”     North Carolina v. Pearce,
    
    
    395 U.S. 711
    , 717, 
    89 S. Ct. 2072
    , 2076, 
    23 L. Ed. 2d 656
    , 664-
    
    65 (1969).     Common to all three protections is the concept of
    
    “same offense.”    Accordingly, a prime concern when reviewing a
    
    double-jeopardy claim is “whether the second prosecution is for
    
    the same offense involved in the first.”     State v. Yoskowitz,
    
    
    116 N.J. 679
    , 689 (1989) (quoting State v. De Luca, 
    108 N.J. 98
    ,
    
    102, cert. denied, 
    484 U.S. 944
    , 
    108 S. Ct. 331
    , 
    98 L. Ed. 2d 358
     (1987)).
    
        The United States Supreme Court first announced its test
    
    for determining whether a second prosecution is for the same
    
    offense in Blockburger, supra, 284 U.S. at 304, 52 S. Ct. at
    
    182, 76 L. Ed. at 309.     The Court stated that “where the same
    
    act or transaction constitutes a violation of two distinct
    
                                      11
    statutory provisions, the test to be applied to determine
    
    whether there are two offenses or only one, is whether each
    
    provision requires proof of a fact which the other does not.”
    
    Ibid.   In other words, if each statute at issue requires proof
    
    of an element that the other does not, they do not constitute
    
    the same offense and a second prosecution may proceed.     Ibid.
    
    This test has come to be known as the same-elements test.
    
        The Blockburger same-elements test was the exclusive test
    
    for same-offense determinations until the United States Supreme
    
    Court decided Illinois v. Vitale, 
    447 U.S. 410
    , 421, 
    100 S. Ct. 2260
    , 2267, 
    65 L. Ed. 2d 228
    , 238 (1980).     There, the United
    
    States Supreme Court indicated that facts could possibly require
    
    more than a mechanical analysis of the elements of the two
    
    statutes.    Ibid.   The United States Supreme Court contemplated
    
    that a second prosecution could be barred if it relied on the
    
    same evidence used to prove an earlier charge.     Ibid.   This
    
    language “created controversy among state and federal courts
    
    over whether the traditional Blockburger test ha[d] been
    
    expanded.”   Yoskowitz, supra, 116 N.J. at 690.
    
        This Court read the language in Vitale as creating an
    
    alternative to Blockburger’s same-elements test -- the same-
    
    evidence test.   See De Luca, supra, 108 N.J. at 107; Dively,
    
    supra, 92 N.J. at 581-83.    The United States Supreme Court
    
    reached the same conclusion a few years later and officially
    
                                      12
    adopted the suggestion it set forth in Vitale.    Grady v. Corbin,
    
    
    495 U.S. 508
    , 510, 
    110 S. Ct. 2084
    , 2087, 
    109 L. Ed. 2d 548
    , 557
    
    (1990).
    
           Soon thereafter, the United States Supreme Court
    
    reevaluated and revised its position, holding that the same-
    
    evidence test was “wholly inconsistent with earlier Supreme
    
    Court precedent and with the clear common-law understanding of
    
    double jeopardy.”    United States v. Dixon, 
    509 U.S. 688
    , 704,
    
    
    113 S. Ct. 2849
    , 2860, 
    125 L. Ed. 2d 556
    , 573 (1993).     Deeming
    
    the same-evidence test unworkable, the Court reinstated the
    
    Blockburger same-elements test as the sole measure of whether
    
    two offenses constitute the same offense for double jeopardy
    
    purposes.   Id. at 708-09, 113 S. Ct. at 2864, 1
    25 L. Ed. 2d
     at
    
    577.    The Court specifically rejected its dicta in Vitale, which
    
    suggested a same-evidence test, stating “[n]o Justice, the
    
    Vitale dissenters included, has ever construed this passage as
    
    answering, rather than simply raising, the question on which we
    
    later granted certiorari in Grady.”    Id. at 707, 113 S. Ct. at
    
    2862, 1
    25 L. Ed. 2d
     at 575.
    
           It took a mere three years for the United States Supreme
    
    Court to steer away from the same-evidence test; it quickly
    
    found that the test would be unworkable without crafting a
    
    number of exceptions to supplement it.    See United States v.
    
    Felix, 
    503 U.S. 378
    , 389-91, 
    112 S. Ct. 1377
    , 1384-85, 
    118 Lans. Ch. 13
    Ed. 2d 25, 36-37 (1992) (creating exception for conspiracy under
    
    which prior prosecution for substantive offense would not
    
    preclude prosecution for conspiracy to commit that offense).
    
    Fearing the necessity of more exceptions further denuding the
    
    same-evidence test, the Dixon Court eliminated it altogether in
    
    favor of the same-elements test.    Dixon, supra, 509 U.S. at 710,
    
    113 S. Ct. at 2863, 1
    25 L. Ed. 2d
     at 577.
    
        Since Dixon, the majority of states have similarly ruled
    
    that the Blockburger same-elements test sets forth the proper
    
    test for determining whether two charges are the same offense.
    
    See, e.g., State v. Leighton, 
    645 So. 2d 354
    , 355 (Ala. Crim.
    
    App. 1994); State v. Sanders, 
    68 P.3d 434
    , 448 (Ariz. Ct. App.);
    
    Hughes v. State, 
    66 S.W.3d 645
    , 652 (Ark. 2002); People v.
    
    Allen, 
    868 P.2d 379
    , 380 (Colo. 1994); State v. Alvarez, 
    778 A.2d 938
    , 945-46 (Conn. 2001), cert. denied, 
    534 U.S. 1138
    , 
    122 S. Ct. 1086
    , 
    151 L. Ed. 2d 985
     (2002); Forrest v. State, 
    721 A.2d 1271
    , 1278 (Del. 1999); Tyree v. United States, 
    629 A.2d 20
    , 21-22 (D.C. 1993); Dodd v. State, 
    522 S.E.2d 538
    , 539-40
    
    (Ga. Ct. App. 1999); Kelso v. State, 
    961 So. 2d 277
    , 281-82
    
    (Fla. 2007); People v. Sienkiewicz, 
    802 N.E.2d 767
    , 770-71 (Ill.
    
    2003); State v. Sharkey, 
    574 N.W.2d 6
    , 8 (Iowa 1997); State v.
    
    Schoonover, 
    133 P.3d 48
    , 62 (Kan. 2006); Commonwealth v. Burge,
    
    
    947 S.W.2d 805
    , 811 (Ky. 1996); In re Michael W., 
    768 A.2d 684
    ,
    
    690 (Md. 2001); People v. Ream, 
    750 N.W.2d 536
    , 544 (Mich.
    
                                   14
    2008); Powell v. State, 
    806 So. 2d 1069
    , 1074 (Miss. 2001);
    
    People v. Latham, 
    631 N.E.2d 83
    , 85 (N.Y. 1994); State v.
    
    Winkler, 
    663 N.W.2d 102
    , 108 (Neb. 2003); State v. Rodriguez,
    
    
    116 P.3d 92
    , 101 (N.M. 2005); State v. Zima, 
    806 N.E.2d 542
    , 548
    
    (Ohio 2004); Commonwealth v. Caufman, 
    662 A.2d 1050
    , 1052 (Pa.
    
    1995); State v. Easler, 
    489 S.E.2d 617
    , 623 (S.C. 1997); Flores
    
    v. Texas, 
    906 S.W.2d 133
     (Tex. 1995); Coleman v. Commonwealth,
    
    
    539 S.E.2d 732
    , 733-35 (Va. 2001); State v. Gocken, 
    896 P.2d 1267
    , 1270-73 (Wash. 1995); State v. Kurzawa, 
    509 N.W.2d 712
    ,
    
    720 (Wis.), cert. denied, 
    512 U.S. 1222
    , 
    114 S. Ct. 2712
    , 129 L.
    
    Ed. 2d 839 (1994); Sweets v. State, 
    307 P.3d 860
    , 875 (Wyo.
    
    2013).
    
        Until this case, we have not had occasion to reevaluate our
    
    double-jeopardy jurisprudence in light of Dixon’s return to the
    
    same-elements test.   As a result, appellate panels have split
    
    over whether the same-evidence test still applies in New Jersey.
    
    Compare State v. Colon, 
    374 N.J. Super. 199
    , 216 (App. Div.
    
    2005) (declining to find, in absence of instruction from this
    
    Court, that same-evidence test was no longer applicable); State
    
    v. Capak, 
    271 N.J. Super. 397
    , 402-04 (App. Div.) (recognizing
    
    Dixon’s holding, but deciding to apply same-evidence test until
    
    this Court holds otherwise), certif. denied, 
    137 N.J. 164
    
    (1994), with State v. Kelly, 
    406 N.J. Super. 332
    , 350 (App. Div.
    
    2009) (rejecting defendant’s same-evidence arguments based on
    
                                    15
    Grady, which was overruled by Dixon), aff’d on other grounds,
    
    
    201 N.J. 471
     (2010); State v. Ellis, 
    280 N.J. Super. 533
    , 550
    
    (App. Div. 1995) (refusing to apply same-evidence test overruled
    
    by Dixon).
    
                                     B.
    
           We resolve the question of which test applies in our courts
    
    by adopting the same-elements test as the sole double-jeopardy
    
    analysis, thereby realigning New Jersey law with federal law.
    
    We no longer recognize the same-evidence test as a measure of
    
    whether two offenses constitute the same offense.
    
           In reaching our conclusion, we are guided by the conundrums
    
    created by the same-evidence test as they played out before the
    
    United States Supreme Court.    Rather than grafting exception
    
    upon exception onto a test that would eventually fall under its
    
    own weight, we embrace the same-elements test in its stead.      The
    
    same-elements test analyzes the elements of the competing
    
    statutes to determine if each contains an element the other does
    
    not.   If each statute contains at least one unique element, the
    
    subsequent prosecution may proceed.
    
           The benefits of the same-elements test are noteworthy:    the
    
    test is effortlessly applied at early stages of prosecution; it
    
    is capable of producing uniform, predictable results; and it
    
    aids defendants by reducing multiple court appearances.     By
    
    contrast, under the same-evidence test, a court cannot determine
    
                                     16
    whether two charges constitute the same offense until later in
    
    the process, after the State has proffered the evidence used to
    
    support each claim.   “[S]urely such a procedure is inconsistent
    
    with the Double Jeopardy Clause, which was specifically designed
    
    to protect the citizen from multiple trials.”   Vitale, supra,
    
    447 U.S. at 426, 100 S. Ct. at 2270, 65 L. Ed. 2d at 242
    
    (Stevens, J., dissenting).
    
        Further, adoption of this test corrects our reliance on the
    
    now-repudiated dicta in Vitale in support of our addition of the
    
    same-evidence test to our double-jeopardy framework.    See
    
    Dively, supra, 92 N.J. at 581.
    
        Finally, protections abound for defendants, enshrined in
    
    our Constitution, court rules, and statutes.    See, e.g.,
    
    N.J.S.A. 2C 1-8 (limiting prosecutions, trials, and convictions
    
    when a defendant’s conduct constitutes more than one offense);
    
    N.J.S.A. 2C:1-10(a)(1) (barring subsequent prosecution for a
    
    violation of a different statutory provision, where the former
    
    prosecution resulted in an acquittal and the subsequent
    
    prosecution is for an offense for which defendant could have
    
    been convicted on the first prosecution).   For example, Court
    
    Rule 3:15-1(b) states that,
    
             [e]xcept as provided by R. 3:15-2(b), a
             defendant shall not be subject to separate
             trials for multiple criminal offenses based on
             the same conduct or arising from the same
             episode, if such offenses are known to the
    
                                     17
              appropriate prosecuting officer at the time of
              the commencement of the first trial and are
              within the jurisdiction and venue of a single
              court.
    
    This Court has long held that “[i]f the offenses are not joined
    
    [under that rule], the omitted offense may not be further
    
    prosecuted.”     State v. Williams, 
    172 N.J. 361
    , 368 (2002)
    
    (citing State v. Gregory, 
    66 N.J. 510
    , 522-23 (1975)).     That
    
    rule bars subsequent prosecutions for indictable offenses.
    
    Nothing in this opinion changes that joinder requirement.
    
        Rule 3:15-1(b) is titled “Trial of Indictments or
    
    Accusations Together.”     It commands that every crime -- an
    
    offense defined by the criminal code or by any other statute of
    
    this State for which a sentence of imprisonment in excess of six
    
    months is authorized, N.J.S.A. 2C:1-4 -- known to the prosecutor
    
    at the time of the commencement of the first trial must be
    
    joined.   As noted above, this Court has underscored that failure
    
    by the prosecution to properly join indictable offenses bars a
    
    subsequent prosecution.     Williams, supra, 172 N.J. at 368.   In
    
    contrast, Rule 3:15-3 is titled “Trial of Criminal Offenses and
    
    Lesser, Related Infractions.”    Those two rules have different
    
    titles and address different subject matter, and there is no
    
    indication from the text of the rules that they can, or must, be
    
    read together.
    
    
    
    
                                      18
        We recognize a narrow circumstance where it is possible
    
    that neither the same-elements test nor the rule in Williams
    
    would prevent a second prosecution:    where a defendant is
    
    acquitted in Superior Court and the prosecution then files
    
    disorderly persons charges in municipal court relating to
    
    essentially the same conduct.   Because Williams only bars a
    
    subsequent prosecution on another indictable offense and
    
    disorderly persons offenses are not indictable, the second
    
    prosecution might not be barred.     As the State noted at oral
    
    argument, these situations are admittedly rare, because the
    
    State has little incentive to pursue a disorderly persons
    
    offense after acquittal on an indictable offense predicated on
    
    the same facts.   The dissent nonetheless conjures up one
    
    hypothetical after another, which simply do not reflect reality.
    
    If those unlikely events unfolded, however, the second
    
    prosecution might well be barred on joinder or fundamental
    
    fairness grounds.   See State v. Saavedra, 
    222 N.J. 39
    , 67-68
    
    (2015).   As a further safeguard, we invite the Supreme Court
    
    Committee on Criminal Practice to review the joinder rule and
    
    consider adding non-indictable offenses to it.
    
        What the dissent mistakes for efficiency is actually
    
    certainty.   A defendant’s interest in avoiding a second
    
    prosecution should not be in jeopardy solely based on the
    
    ability of the defense or State to characterize evidence as
    
                                    19
    necessary for a conviction.     The same-evidence test’s reliance
    
    on a case-by-case approach creates the potential for wildly
    
    different results in cases with similar facts.     While efficiency
    
    is certainly a by-product of today’s decision, the same-elements
    
    test provides equal protection to defendants who are similarly
    
    situated by combatting uncertainty in results.
    
        We acknowledge that no double-jeopardy test will cover the
    
    entire spectrum of possible situations to come before this
    
    Court.   The same-elements test is not a cure-all.    It becomes
    
    part of the fabric of our double-jeopardy protections, joined
    
    with the Due Process Clause and Sixth Amendment Jury Trial
    
    clause, creating a fulsome array of safeguards for criminal
    
    defendants.   See Akhil Reed Amar, Double Jeopardy Law Made
    
    Simple, 106 Yale L.J. 1807, 1809 (1997) (“[T]he [United States
    
    Supreme] Court has tied itself into knots because it has failed
    
    to carefully disentangle the Double Jeopardy, Due Process, and
    
    Jury Trial Clauses.   As a result, some defendants today are
    
    getting windfalls -- needless and dangerous ‘get out of jail
    
    free’ cards -- while other defendants are getting less than they
    
    constitutionally deserve.”).
    
        Given those factors, we see no reason to deviate from the
    
    well-established tradition of keeping our double-jeopardy law
    
    coextensive with federal law.    Here, we are faced with the
    
    difficult task of choosing among competing precedents:     our line
    
                                      20
    of cases holding that our double jeopardy case law is
    
    coextensive with the federal law or our cases supporting the
    
    same-evidence test.   Because we believe there is good cause and
    
    a special justification to do so, see State v. Witt, 
    223 N.J. 409
    , 415 (2015), we remove the same-evidence test from future
    
    consideration in resolving double jeopardy questions.
    
        Because our decision establishes a new rule of law, we
    
    apply the new singular same-elements standard prospectively to
    
    offenses committed after the date of this opinion.   See, e.g.,
    
    Witt, supra, 223 N.J. at 450.   Here, in fairness to defendant,
    
    we conduct our double-jeopardy analysis using both the same-
    
    elements test and the now-removed same-evidence test because
    
    that was the legal landscape at the time he was charged.     We now
    
    apply those principles to determine whether prosecution on
    
    defendant’s school-zone charge violated double jeopardy.
    
                                    VI.
    
        The facts of this case implicate two of the three
    
    protections of the Double Jeopardy Clause:   protection against a
    
    second prosecution after conviction and protection against
    
    multiple punishments for the same offense.   The two offenses at
    
    issue are loitering to possess marijuana, N.J.S.A. 2C:33-2.1(b),
    
    and possession with the intent to distribute within a school-
    
    zone, N.J.S.A. 2C:35-7(a).   The loitering statute provides that
    
    a person commits a disorderly-persons offense if:
    
                                    21
              (1) he wanders, remains or prowls in a public
              place with the purpose of unlawfully obtaining
              or   distributing   a   controlled   dangerous
              substance . . . and (2) engages in conduct
              that . . . manifests a purpose to obtain or
              distribute a controlled dangerous substance or
              controlled dangerous substance analog.
    
              [N.J.S.A. 2C:33-2.1(b).]
    
         In comparison, a violation of the school-zone statute
    
    occurs when a person “distribut[es], dispens[es] or possess[es]
    
    with intent to distribute a controlled dangerous substance . . .
    
    while on any school property used for school purposes . . . or
    
    within 1,000 feet of such school property.”   N.J.S.A. 2C:35-
    
    7(a).
    
         Application of the Blockburger same-elements test to the
    
    two statutes would lead us to conclude that loitering to possess
    
    marijuana is not the same offense as possession within a school
    
    zone.   Loitering requires proof that defendant’s conduct
    
    occurred in a public place, an element not required for proof of
    
    the school-zone offense.   The school-zone offense, on the other
    
    hand, requires proof of purpose to distribute and possession
    
    within 1000 feet of a school zone -- two elements not required
    
    for the proof of loitering.   Thus, each offense contains at
    
    least one element not required to prove the other.
    
         Under the same-evidence test, however, we find that
    
    defendant’s successive prosecution for the school-zone offense
    
    is prohibited because it is based on the same evidence that
    
                                    22
    supported the plea and conviction on the loitering offense.     The
    
    evidence necessary to support defendant’s loitering charge was
    
    his presence at 27th and Washington Streets, a public street
    
    corner, where he intended to distribute marijuana.   Similarly,
    
    the evidence of the school-zone charge was defendant’s location
    
    at 27th and Washington Streets -- within 1000 feet of a school
    
    building -- where he possessed marijuana with the intent to
    
    distribute it.   Clearly, the State relied on the same evidence
    
    to obtain defendant’s conviction on the school-zone charge that
    
    was used as the basis for defendant’s plea on the loitering
    
    charge.   Accordingly, the two charges constitute the same
    
    offense under the same-evidence test, and the school-zone
    
    prosecution was improper.   We therefore affirm the judgment of
    
    the Appellate Division barring defendant’s second prosecution as
    
    a violation of the double jeopardy clause.
    
        In the interest of justice, we applied both analyses here;
    
    going forward, for offenses committed after the issuance of this
    
    opinion, we hold that the same-elements test will serve as the
    
    singular framework for determining whether two charges are in
    
    fact the same offense for purposes of double-jeopardy analysis.
    
                                   VII.
    
        The judgment of the Appellate Division is affirmed.
    
    Defendant’s conviction and sentence on the school-zone offense
    
    are vacated.
    
                                    23
         CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-
    VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion. JUSTICE
    ALBIN filed a separate, dissenting opinion in which JUSTICE
    LaVECCHIA joins.
    
    
    
    
                                  24
                                           SUPREME COURT OF NEW JERSEY
                                             A-72 September Term 2015
                                                      077035
    
    STATE OF NEW JERSEY,
    
        Plaintiff-Appellant,
    
             v.
    
    RODNEY J. MILES (a/k/a JAMAL
    D. ALLEN),
    
        Defendant-Respondent.
    
        JUSTICE ALBIN dissenting.
    
        More than forty years ago in State v. Gregory, this Court
    
    exercised its broad administrative power under the New Jersey
    
    Constitution to provide greater double-jeopardy protection to
    
    the people of New Jersey than afforded by the United States
    
    Constitution.   
    66 N.J. 510
    , 518-19, 522 (1975).   We rejected the
    
    United States Supreme Court’s same-elements test for determining
    
    whether successive indictable prosecutions are barred for
    
    double-jeopardy purposes and, instead, adopted a rule that
    
    barred such prosecutions based on the same conduct.   Id. at 522;
    
    see also R. 3:15-1(b); State v. Williams, 
    172 N.J. 361
    , 368
    
    (2002); State v. Yoskowitz, 
    116 N.J. 679
    , 699-704 (1989).
    
        Later, we construed our State Constitution’s Double
    
    Jeopardy Clause to incorporate the same-evidence test -- an
    
    alter ego of the same-conduct test -- to bar successive
    
    prosecutions involving non-indictable offenses, see State v.
    
                                     1
    De Luca, 
    108 N.J. 98
    , cert. denied, 
    484 U.S. 944
    , 
    108 S. Ct. 331
    , 
    98 L. Ed. 2d 358
     (1987); State v. Dively, 
    92 N.J. 573
    
    (1983), and we adopted a court rule requiring the joinder of
    
    non-indictable offenses with indictable offenses arising from
    
    the same conduct, R. 3:15-3.   Our case law makes clear that we
    
    have embraced the same-conduct test through our constitutional
    
    rulemaking authority, see Williams, supra, 172 N.J. at 367-68,
    
    and through our State Constitution’s Double Jeopardy Clause, see
    
    De Luca, supra, 108 N.J. at 107-08.    We also have determined
    
    that notions of fundamental fairness may bar successive
    
    prosecutions based on the same conduct.    See Yoskowitz, supra,
    
    116 N.J. at 704-09.
    
        Today, the majority reverses course and constricts the
    
    interpretation of our State Constitution’s Double Jeopardy
    
    Clause to bar successive prosecutions based solely on the same-
    
    elements test, thus aligning itself with the federal double-
    
    jeopardy standard, which has proven to be inconstant.     This move
    
    is at complete odds with the architecture of our joinder rules
    
    and double-jeopardy jurisprudence.    Despite today’s decision,
    
    our court rules requiring the joinder of all offenses arising
    
    from the same conduct remain intact, and we have already
    
    determined that the failure to join indictable offenses arising
    
    from the same conduct, as required by Rule 3:15-1(b), will
    
    result in the dismissal of a second prosecution.    Williams,
    
                                    2
    supra, 172 N.J. at 368.
    
        The immediate impact of the majority’s decision is that our
    
    citizens will no longer have enhanced double-jeopardy protection
    
    for non-indictable offenses.     In such cases, only the same-
    
    elements test, not the same-conduct test, will bar successive
    
    prosecutions.
    
        Thus, if a defendant is acquitted of possession with intent
    
    to distribute drugs, he cannot afterwards be prosecuted for the
    
    disorderly persons offense of possession because both offenses
    
    share the same elements.     However, if as occurred here, the
    
    possession charge is amended to the disorderly persons offense
    
    of loitering to possess or distribute drugs, the second
    
    prosecution can proceed because the possession-with-intent-to-
    
    distribute and drug loitering charges do not share the same
    
    elements.   According to the majority, the second prosecution is
    
    not barred even though the defendant possessed the same drugs,
    
    on the same street corner, at the same time.
    
        The majority concedes that this result might well be
    
    fundamentally unfair.     There is no sound reason to alter a
    
    workable constitutional doctrine to one that could lead to
    
    unjust outcomes and that would require the remedy of the
    
    fundamental-fairness doctrine.    Notably, the majority makes
    
    clear that fundamental fairness is not offended if the defendant
    
    is acquitted of disorderly drug loitering and then prosecuted
    
                                       3
    for an indictable offense of possession arising from the same
    
    conduct.
    
        Additionally, under the majority’s new double-jeopardy
    
    paradigm, the State can prosecute an accused for the disorderly
    
    persons offenses of possession of drugs, possession of drug
    
    paraphernalia, and loitering to obtain drugs, all arising from
    
    the same conduct, in three separate trials because the three
    
    offenses do not share the same elements.   This scenario too the
    
    majority does not consider to be fundamentally unfair.
    
    Countless similar fact patterns can be conjured under the
    
    majority’s new rule.   Until today, such multiple prosecutions
    
    would have been barred under our state-law double-jeopardy
    
    jurisprudence.
    
        Under the regressive approach adopted by the majority, the
    
    State will be the ultimate beneficiary, and the accused will pay
    
    the price for the State’s failure to join non-indictable
    
    offenses.   That approach cannot be squared with the principles
    
    of fairness that previously animated our double-jeopardy
    
    jurisprudence.   For those reasons, I respectfully dissent.
    
                                    I.
    
        The double-jeopardy guarantees of our Federal and State
    
    Constitutions protect an accused from multiple prosecutions and
    
    
    
    
                                     4
    multiple punishments for the same offense.1   See North Carolina
    
    v. Pearce, 
    395 U.S. 711
    , 717, 
    89 S. Ct. 2072
    , 2076, 
    23 L. Ed. 2d 656
    , 664-65 (1969), overruled on other grounds by Alabama v.
    
    Smith, 
    490 U.S. 794
    , 
    109 S. Ct. 2201
    , 
    104 L. Ed. 2d 865
     (1989);
    
    De Luca, supra, 108 N.J. at 102.    The animating principle
    
    underlying the Double Jeopardy Clause is that
    
              the State with all its resources and power
              should not be allowed to make repeated
              attempts to convict an individual for an
              alleged offense, thereby subjecting him to
              embarrassment,   expense   and   ordeal  and
              compelling him to live in a continuing state
              of anxiety and insecurity, as well as
              enhancing the possibility that even though
              innocent he may be found guilty.
    
              [Green v. United States, 
    355 U.S. 184
    , 187-
              88, 
    78 S. Ct. 221
    , 223, 
    2 L. Ed. 2d 199
    , 204
              (1957).]
    
    The heart of the double-jeopardy issue before us is whether the
    
    offense for which defendant was convicted in the first
    
    prosecution is the “same offense” for which he was tried in the
    
    second prosecution.   See De Luca, supra, 108 N.J. at 102.
    
         The same-elements test -- first adopted by the United
    
    States Supreme Court in Blockburger v. United States, 
    284 U.S. 299
    , 
    52 S. Ct. 180
    , 
    76 L. Ed. 306
     (1932) -- was the long-
    
    
    
    
    1 The Federal and State Double Jeopardy Clauses provide, no
    person shall “be subject for the same offence to be twice put in
    jeopardy of life or limb,” U.S. Const. amend. V, and “[n]o
    person shall, after acquittal, be tried for the same offense,”
    N.J. Const. art. I, ¶ 11.
                                    5
    prevailing standard for determining whether a subsequent
    
    prosecution was for the “same offense” as in a prior
    
    prosecution.   See Kirstin Pace, Fifth Amendment -- The Adoption
    
    of the “Same Elements” Test:   The Supreme Court’s Failure to
    
    Adequately Protect Defendants from Double Jeopardy, 84 J. Crim.
    
    L. & Criminology 769, 772 (1994).    Over time, however, the
    
    rigidity of that standard came into question.    Id. at 772-75.
    
         In 1970, the United States Supreme Court invoked collateral
    
    estoppel to bar a subsequent prosecution for the same offense,
    
    electing not to apply the Blockburger same-elements test.2     Ashe
    
    v. Swenson, 
    397 U.S. 436
    , 443-47, 
    90 S. Ct. 1189
    , 1194-96, 25 L.
    
    Ed. 2d 469, 475-77 (1970).   Justice Brennan, while concurring
    
    with the application of collateral estoppel, opined that “same
    
    offense” in the Double Jeopardy Clause should be “construed to
    
    [mean] the ‘same transaction’” -- all the events “grow[ing] out
    
    of a single criminal act, occurrence, episode, or transaction.”
    
    Id. at 453-54, 460, 90 S. Ct. at 1199, 1202, 
    25 L. Ed. 2d
     at
    
    481, 484 (Brennan, J., concurring).
    
    
    
    
    2 Ashe v. Swenson involved the robbery of six players in a poker
    game. 
    397 U.S. 436
    , 437, 
    90 S. Ct. 1189
    , 1191, 
    25 L. Ed. 2d 469
    , 472 (1970). The defendant was prosecuted for the robbery
    of one of the players and acquitted, apparently, based on his
    alibi defense. Id. at 438-39, 90 S. Ct. at 1191-92, 
    25 L. Ed. 2d
     at 472-73. The United States Supreme Court barred a second
    prosecution for the robbery of another poker player based on
    principles of collateral estoppel. Id. at 445-47, 90 S. Ct. at
    1195-96, 
    25 L. Ed. 2d
     at 467-77.
                                     6
        Following Justice Brennan’s lead, we rejected the
    
    Blockburger standard in 1975 in favor of the “same transaction”
    
    or “same conduct” test.     See Gregory, supra, 66 N.J. at 518-19.
    
    In so doing, we utilized the “broad administrative and
    
    procedural powers vested in us by our State Constitution” in
    
    Article VI, Section II, Paragraph 3, rather than turn to the
    
    Double Jeopardy Clause of Article I, Paragraph 11.    Id. at 518.
    
        Gregory involved the sale of a single glassine envelope of
    
    heroin to an undercover police officer by the defendant while in
    
    his apartment.   Id. at 511.   The defendant had retrieved the
    
    heroin envelope from a stash of similar envelopes in his
    
    bathroom’s medicine cabinet.    Ibid.   The State first prosecuted
    
    and convicted the defendant of the heroin sale and later
    
    charged, prosecuted, and convicted him of possession and
    
    possession with intent to distribute the heroin in his medicine
    
    cabinet.   Id. at 511-12.
    
        Relying on Justice Brennan’s concurrence in Ashe v.
    
    Swenson, section 1.07(2) of the Model Penal Code, notions of
    
    fairness, and the defendant’s reasonable expectations, we
    
    reversed the drug-possession convictions, concluding that “a
    
    defendant shall not be subject to separate trials for multiple
    
    offenses ‘based on the same conduct or arising from the same
    
    criminal episode.’”   Id. at 518-19, 522.
    
        Two years after Gregory, we adopted a mandatory joinder
    
                                      7
    rule, which now reads:
    
             [A] defendant shall not be subject to separate
             trials for multiple criminal offenses based on
             the same conduct or arising from the same
             episode, if such offenses are known to the
             appropriate prosecuting officer at the time of
             the commencement of the first trial and are
             within the jurisdiction and venue of a single
             court.3
    
             [R. 3:15-1(b) (1977) (amended 1987) (emphasis
             added).]
    
    The operative language in the Rule is identical to the language
    
    in N.J.S.A. 2C:1-8(b) of the Code of Criminal Justice entitled
    
    “Limitation on separate trials for multiple offenses.”     This
    
    Court has made clear that it will bar the successive prosecution
    
    of indictable offenses arising from the same conduct when the
    
    State has failed to join those offenses in accordance with Rule
    
    3:15-1(b).   See Williams, supra, 172 N.J. at 368; Yoskowitz,
    
    supra, 116 N.J. at 699-704.
    
                                   II.
    
        This Court reached a similar result in cases involving the
    
    failure to join non-indictable charges by invoking the Double
    
    Jeopardy Clause of our State Constitution.   See De Luca, supra,
    
    108 N.J. at 101-08; Dively, supra, 92 N.J. at 578-90.     In
    
    Dively, supra, this Court broadly defined the term “same
    
    
    3 In 1988, Rule 3:15-1(b) was amended to conform with the
    language of N.J.S.A. 2C:1-8(b). See Pressler & Verniero,
    Current N.J. Court Rules, comment on R. 3:15-1 (1988); 120
    N.J.L.J. Index Pages 137-38 (1987).
                                    8
    offense” to encompass “any integral part of such offense which
    
    may subject the offender to indictment and punishment.”     92 N.J.
    
    at 581 (emphasis added) (quoting State v. Williams, 
    30 N.J. 105
    ,
    
    114 (1959)).    In that case, in part under the auspices of our
    
    State Constitution’s double-jeopardy guarantee, we adopted the
    
    same-evidence test -- a variant of the same-conduct test -- as a
    
    supplement to the same-elements test.    See id. at 578, 582-83.
    
        In adopting the same-evidence test, we relied primarily on
    
    Brown v. Ohio, 
    432 U.S. 161
    , 
    97 S. Ct. 2221
    , 
    53 L. Ed. 2d 187
    
    (1977), and Illinois v. Vitale, 
    447 U.S. 410
    , 
    100 S. Ct. 2260
    ,
    
    
    65 L. Ed. 2d 228
     (1980), which, like Ashe, cast doubt on the
    
    singularity of the Blockburger same-elements test.    See Dively,
    
    supra, 92 N.J. at 579-82; see also Brown, supra, 432 U.S. at 166
    
    n.6, 97 S. Ct. at 2226 n.6, 53 L. Ed. 2d at 195 n.6 (“The
    
    Blockburger test is not the only standard for determining
    
    whether successive prosecutions impermissibly involve the same
    
    offense.”).    Vitale suggested that “the Double Jeopardy Clause
    
    bars any subsequent prosecution in which the government . . .
    
    will prove conduct that constitutes an offense for which the
    
    defendant has already been prosecuted.”    Grady v. Corbin, 
    495 U.S. 508
    , 521, 
    110 S. Ct. 2084
    , 2093, 
    109 L. Ed. 2d 548
    , 564
    
    (1990) (examining Vitale), overruled by United States v. Dixon,
    
    
    509 U.S. 688
    , 
    113 S. Ct. 2849
    , 
    125 L. Ed. 2d 556
     (1993).
    
        In De Luca, supra, we applied the same-evidence test in a
    
                                      9
    case involving a driver acquitted of recklessly killing a person
    
    with a vehicle -- death by auto.      108 N.J. at 108-11.    We held
    
    that the State could not prosecute the driver for driving while
    
    intoxicated (DWI) if the driver’s reckless conduct in the first
    
    prosecution was predicated solely on his presumed intoxication.
    
    Id. at 108-09.   In other words, if the State’s sole evidence of
    
    recklessness in the death-by-auto case was intoxication, double
    
    jeopardy barred the State from prosecuting the driver for DWI.
    
    Ibid.   We came to that conclusion even though, under
    
    Blockburger, death by auto and DWI do not share the same
    
    elements.    Ibid.
    
        In Dively, supra, we reached a result similar to De Luca in
    
    the reverse setting.    See 92 N.J. at 582-83.    There, we held
    
    that a driver who pled guilty to DWI could not be prosecuted for
    
    death by auto if the sole basis for his reckless conduct was his
    
    intoxication.    Id. at 576-77, 582-83.   Additionally, in
    
    Yoskowitz, supra, we reaffirmed that the same-evidence test was
    
    an integral part of our double-jeopardy jurisprudence.       116 N.J.
    
    at 691-92.
    
        After De Luca, Dively, and Yoskowitz, we adopted Rule 3:15-
    
    3, which provides that “the court shall join any pending non-
    
    indictable complaint for trial with a criminal offense based on
    
    the same conduct or arising from the same episode.”     R. 3:15-
    
    3(a)(1) (emphasis added).   This language parallels the mandatory
    
                                     10
    joinder rule for indictable offenses and presumably provides
    
    similar protection from the sort of successive prosecutions
    
    condemned in Gregory and Williams.
    
        The enforcement section of Rule 3:15-3 provides that a
    
    subsequent prosecution will be barred “as required by statute or
    
    by the Federal or State Constitutions.”   R. 3:15-3(c).    The
    
    drafters of that Rule knew that, under Dively and De Luca, our
    
    State Constitution barred successive prosecutions of indictable
    
    and lesser offenses arising under the same conduct that were not
    
    joined by the prosecution.   Report of the Supreme Court
    
    Committee on Criminal Practice 44, 46-47, 52-57 (1988).
    
    Therefore, as of 1992, when Rule 3:15-3 became effective, the
    
    same-conduct test was the operative double-jeopardy framework
    
    for our State with respect to both indictable and non-indictable
    
    offenses.   See R. 3:15-3 (effective 1992).
    
        Since 1975, the operative double-jeopardy framework in this
    
    State has been the “same conduct” test.   See Gregory, supra, 66
    
    N.J. at 519-20.   Thus, by the time Justice Brennan’s same-
    
    conduct test became the majority view of the United States
    
    Supreme Court in Grady, supra, 495 U.S. at 510, 110 S. Ct. at
    
    2087, 109 L. Ed. 2d at 557, our law had already provided that
    
    level of protection for fifteen years.
    
        Therefore, Justice Scalia’s 1993 opinion in Dixon, supra,
    
    abandoning the same-conduct test and returning to the
    
                                    11
    Blockburger same-elements test, was completely at odds with our
    
    jurisprudence.    See 509 U.S. at 704, 113 S. Ct. at 2860, 125 L.
    
    Ed. 2d at 573 (overruling Grady).      Notably, the Dixon Court was
    
    so deeply divided that it produced five separate opinions.     The
    
    Justices disagreed not only about which test would best advance
    
    double-jeopardy principles, but also about how a factfinder
    
    would determine whether the same-elements test was satisfied.
    
    See generally Dixon, supra, 
    509 U.S. 688
    , 
    113 S. Ct. 2849
    , 
    125 L. Ed. 2d 556
    .4   We do not have to follow the path taken by our
    
    federal counterpart, particularly when doing so is in conflict
    
    with our own well-established jurisprudence.
    
                                    III.
    
         For forty years, we have been broadening the enforcement of
    
    our mandatory joinder rules to safeguard defendants from
    
    successive prosecution of offenses arising from the same
    
    conduct.   Dively, De Luca, and Yoskowitz are well-reasoned
    
    precedents of this Court.   The majority has failed to give some
    
    “special justification” for sweeping them away, as required by
    
    
    
    
    4 Only Justice Kennedy joined the entirety of Justice Scalia’s
    opinion. Chief Justice Rehnquist wrote an opinion, joined by
    Justices O’Connor and Thomas, concurring in part and dissenting
    in part. Justice White wrote an opinion, joined by Justices
    Stevens and Souter (only Part I), concurring in the judgment in
    part and dissenting in part. Justice Blackmun wrote an opinion
    concurring in the judgment in part and dissenting in part.
    Justice Souter, joined by Justice Stevens, also wrote an opinion
    concurring in the judgment in part and dissenting in part.
                                     12
    the doctrine of stare decisis.   State v. Brown, 
    190 N.J. 144
    ,
    
    157 (2007) (quoting Dickerson v. United States, 
    530 U.S. 428
    ,
    
    443, 
    120 S. Ct. 2326
    , 2336, 
    147 L. Ed. 2d 405
    , 419 (2000)).     The
    
    majority provides no compelling, much less persuasive, reason --
    
    other than the illusory promise of efficiency -- for withdrawing
    
    protection previously guaranteed under our State Constitution
    
    and for reversing Dively and De Luca and abrogating much of
    
    Yoskowitz.   Indeed, the majority is resigned to suggesting
    
    possible remedies for the constitutional gap it has opened.
    
        What is the fallout from the majority’s ruling?     There is
    
    now no bar to prosecuting defendants for differently framed non-
    
    indictable offenses based on the exact same conduct.    The
    
    majority suggests that the Blockburger test is superior because
    
    it provides the benefit of ease of application.    See ante at ___
    
    (slip op. at 16).   The Bill of Rights, however, was not intended
    
    to make prosecutions more efficient; it was intended to provide
    
    greater safeguards to the liberty of our people.
    
        Without changing our Court Rules to allow for the
    
    enforcement of Rule 3:15-3(a)(1), or leaving Dively and De Luca
    
    intact, a defendant convicted or acquitted of possession with
    
    intent to distribute drugs on a particular street corner can be
    
    prosecuted again for loitering with intent to distribute drugs
    
    on the same street corner.   That is so because, although
    
    defendant’s conduct is the same, the elements of the two
    
                                     13
    offenses are different.    Had defendant pled guilty to the
    
    disorderly persons possession-of-marijuana charge -- before the
    
    municipal court judge amended it to drug loitering -- no one
    
    disputes that the State could not proceed with a prosecution for
    
    possession with intent to distribute.   The double-jeopardy
    
    outcome changes only because the possession charge was amended
    
    to a similar offense with a similar penalty -- drug loitering,
    
    which has different elements than the greater offense.      Even if
    
    the amendment in this case was for benign reasons, the potential
    
    for manipulation in the future should be self-evident.
    
        Under this new regime, double jeopardy will not bar the
    
    State from subjecting a public employee, who is acquitted of
    
    official misconduct, N.J.S.A. 2C:30-2(a), based on an allegation
    
    of stealing, from a second prosecution for disorderly theft,
    
    N.J.S.A. 2C:20-2(b)(4), -3(a), based on the same conduct and
    
    evidence.   That follows because the elements of official
    
    misconduct and disorderly theft are different.    Additionally, in
    
    robbery cases based on alleged force used by a defendant,
    
    N.J.S.A. 2C:15-1(a)(1), an acquittal on the robbery will not bar
    
    a second prosecution for simple assault, N.J.S.A. 2C:12-1(a), in
    
    municipal court.   The prosecutions in the reverse order would
    
    also be permissible -- without offending the majority’s notions
    
    of fundamental fairness.
    
        Moreover, the State can consecutively prosecute an
    
                                     14
    individual in municipal court for possession of drugs, N.J.S.A.
    
    2C:35-10(a)(4), possession of drug paraphernalia, N.J.S.A.
    
    2C:36-2, and loitering to obtain drugs, N.J.S.A. 2C:33-
    
    2.1(b)(1), all arising from the same conduct, because the
    
    elements of the three non-indictable offenses are distinct.
    
    Those are but a few examples of the types of successive
    
    prosecutions for offenses arising from the same conduct that
    
    will be permissible as a result of the majority’s decision.
    
        The majority is not compelled to take this backwards step
    
    in our jurisprudence.   Other jurisdictions have recognized the
    
    flaws of relying solely on the same-elements test in the post-
    
    Dixon era.   See, e.g., Richardson v. State, 
    717 N.E.2d 32
    , 49-50
    
    (Ind. 1999) (“[T]he statutory elements test and the actual
    
    evidence test, are components of the double jeopardy ‘same
    
    offense’ analysis under the Indiana Constitution.”); State v.
    
    Cotton, 
    778 So. 2d 569
    , 573 (La. 2001) (“In evaluating claims of
    
    double jeopardy under [Louisiana law and the Louisiana
    
    Constitution], Louisiana courts have used the ‘same evidence’
    
    test, which . . . is ‘somewhat broader in concept than
    
    Blockburger.’” (citation omitted)); State v. Gazda, 
    82 P.3d 20
    ,
    
    22 (Mont. 2003) (“[Montana law] provides criminal defendants
    
    with greater protection against double jeopardy than the
    
    traditional double jeopardy ‘elements’ test set forth . . . in
    
    Blockburger.” (citation omitted)).
    
                                    15
         That other state courts follow Dixon does not make the
    
    singular same-elements test superior to the same-conduct test
    
    for double-jeopardy purposes.    If the majority’s approach today
    
    were the better one, this Court would never have decided
    
    Gregory, Williams, Dively, and De Luca as it did.       “In
    
    protecting the rights of citizens of this State, we have never
    
    slavishly followed the popular trends in other jurisdictions,
    
    particularly when the majority approach is incompatible with the
    
    unique interests, values, customs, and concerns of our people.”
    
    Lewis v. Harris, 
    188 N.J. 415
    , 456 (2006).    Indeed, we have
    
    recognized that “[t]he New Jersey Constitution not only stands
    
    apart from other state constitutions, but also ‘may be a source
    
    of individual liberties more expansive than those conferred by
    
    the Federal Constitution.’”     Ibid. (quoting State v. Novembrino,
    
    
    105 N.J. 95
    , 144-45 (1987)).    Aligning this Court’s
    
    interpretation of our State Constitution’s double-jeopardy
    
    guarantee with the United States Supreme Court’s interpretation
    
    of its federal cognate provision makes no sense given this
    
    Court’s decades-long commitment to protecting the accused from
    
    the successive prosecution of offenses arising from the same
    
    conduct.    We should remain true and consistent to the governing
    
    principles of our own jurisprudence.    We should construe our
    
    Double Jeopardy Clause so that it fulfils notions of fundamental
    
    fairness.    The majority’s concession that the amorphous
    
                                      16
    fundamental-fairness doctrine may have to come to the rescue if
    
    unjust results arise from its new double-jeopardy rule is an
    
    admission of the flawed approach it is taking.
    
                                    IV.
    
        No one contests that the non-indictable disorderly persons
    
    offense of marijuana possession or drug loitering should have
    
    been joined with the indictable offense of possession with
    
    intent to distribute offense.   See R. 3:15-3(a)(1).   The
    
    appropriate response is not to abandon our double-jeopardy
    
    jurisprudence by overruling Dively and De Luca, but rather to
    
    enforce more rigorously our mandatory joinder rule, which
    
    requires the joinder of offenses arising from the same conduct.
    
        The majority’s reversion to the same-elements test
    
    backtracks from a path that this Court had set out on forty
    
    years ago in Gregory.   The majority’s new rule will allow the
    
    State, with all its resources and power, to pursue repeated
    
    prosecutions to convict an accused for the same offense, despite
    
    an earlier conviction or acquittal.   That rule hollows out the
    
    protections previously provided by our jurisprudence and our
    
    State Constitution’s Double Jeopardy Clause.
    
        For the reasons expressed in this opinion, I respectfully
    
    dissent.
    
    
    
    
                                    17