1 

SYLLABUS 

This syllabus is not part of the Court’s opinion. 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 Court and may not summarize all portions of the opinion. 

State v. Stephen A. Zadroga (A-22-22) (087156) 

Argued April 25, 2023 -- Decided August 9, 2023 

WAINER APTER, J., writing for a unanimous Court. 

 The Court considers whether double jeopardy bars the retrial of defendant 

Stephen A. Zadroga under the circumstances of this case. 

In November 2017, two cars collided head-on in Jersey City. Defendant was 

driving 85-88 miles per hour 3 seconds before the crash; the posted speed limit was 

25. In addition to witnesses’ statements about the speed at which defendant was 

driving, there was evidence that his car was over the yellow lines, into opposing 

traffic, at the time of the collision. Defendant’s best friend died in the crash.

Pursuant to a warrant, the State seized and tested what they thought was 

defendant’s blood. The blood alcohol content (BAC) came back as 0.376%, more 

than four times the legal limit. Relying on that evidence, the grand jury charged 

defendant with aggravated manslaughter, death by auto, and three counts of driving 

while intoxicated. 

After the nurse who drew defendant’s blood testified for the State at trial, the 

State realized that the blood they believed to be defendant’s had actually come from 

a person who had died seven months before the accident. After the State discovered 

the error, defendant moved to dismiss the indictment with prejudice because the 

grand jury had relied on false testimony to indict him. 

The trial court granted defendant’s motion as to the counts of driving while 

intoxicated but denied the motion as to counts one and two, aggravated manslaughter 

and death by auto. The court found that allowing defendant to be retried on the 

counts unrelated to intoxication would not violate his rights under the Double 

Jeopardy Clause both because he consented to the trial’s termination and because 

there was a manifest necessity to terminate the trial. The Appellate Division 

affirmed on manifest necessity grounds, adding that while the State could present 

counts one and two to a new grand jury, it could not present any evidence that 

defendant was under the influence of alcohol at the time of the collision. 472 N.J. 

Super. 1, 8 (App. Div. 2022). The Court granted certification. 252 N.J. 325 (2022). 
2 

HELD: The trial court did not abuse its discretion in finding manifest necessity 

justified a mistrial here. As the Appellate Division held, the State can present the 

counts of aggravated manslaughter and death by auto to a new grand jury based 

solely on the reckless driving evidence, without any evidence on intoxication. 

1. Both the United States and the New Jersey Constitutions protect defendants from 

repeated prosecutions for the same offense. Jeopardy attaches after a jury is 

impaneled and sworn, and double jeopardy protects the right of the defendant to 

have his trial completed before the first jury impaneled to try him. However, 

termination of a trial after jeopardy attaches does not necessarily prohibit subsequent 

re-prosecution. Only the improper termination of proceedings bars retrial. 

Termination can be proper, and a retrial not barred by double jeopardy principles, in 

two circumstances. First, termination is proper and there is no bar to retrial if there 

is a “manifest necessity” to terminate the proceedings. State v. Loyal, 164 N.J. 418, 

435 (2000). The manifest necessity standard protects “the defendant’s interests in 

having his case finally decided by the jury first selected while at the same time 

maintaining ‘the public’s interest in fair trials designed to end in just judgements.’” 

Oregon v. Kennedy, 456 U.S. 667, 672 (1982). There are no rigid rules as to what 

constitutes a manifest necessity. Instead, the Court has set forth several 

considerations for courts to use in determining whether a manifest necessity requires 

a mistrial. Loyal, 164 N.J. at 437. Second, when the defendant requests or 

otherwise consents to a mistrial, manifest necessity need not be shown. Instead, 

termination is not improper and there is no bar to retrial as long as the prosecutor did 

not “‘goad’ the defendant into moving for a mistrial.” Kennedy, 456 U.S. at 673, 

676. The Court adopted the Kennedy standard in State v. Gallegan, 117 N.J. 345, 

357-58 (1989). In 1978, the Legislature chose to codify constitutional double 

jeopardy protections. See N.J.S.A. 2C:1-9(d). (pp. 19-24) 

2. Here, the trial court did not abuse its discretion in finding that termination of the 

trial was supported by a manifest necessity. The Court disagrees with defendant’s 

reading of State v. Farmer, 48 N.J. 145 (1966), to preclude a finding of manifest 

necessity if the State acted in bad faith or was guilty of inexcusable neglect. Four 

features of Farmer make clear that it did not categorically bar retrial even if there is 

a finding that the State’s conduct reflected bad faith or inexcusable neglect. First, 

Farmer acknowledges that “there is no over-all formula, no hard and fast rule for 

determining when an order of mistrial will cause the jeopardy bar to spring into 

being, [and so] each case must depend upon its own facts and the urgency of its 

circumstances.” Id. at 177. Second, Farmer emphasizes the “wide range of 

discretion” in finding a manifest necessity “recognized in the trial judge, who has his 

finger on the pulse of the proceedings.” Id. at 171. Third, Farmer twice explains 

that appellate courts should not find an abuse of discretion where the trial court 

declares a mistrial to protect a defendant’s interests. Fourth, the Farmer Court 

acknowledged that a declaration of manifest necessity must balance “the right of the 
3 

accused to be prosecuted fairly and not oppressively” against “the societal right to 

have the accused tried and punished if found guilty.” Id. at 175. The Court does not 

read Farmer to establish a per se rule that, whenever a mistrial follows the State’s 

bad faith or inexcusable neglect, retrial is barred on all counts. The Court also 

declines defendant’s invitation to create such a rule. Application of the fact-specific 

balancing tests set forth in Farmer and Loyal, which weigh all circumstances and 

consider both the public’s interest and the defendant’s rights, is the best course when 

the State’s non-intentional misconduct leads to a mistrial. (pp. 24-28) 

3. The trial court did not abuse its discretion in balancing those interests here. First, 

once the trial judge held that the grand jury relied heavily on defendant’s 0.376% 

BAC level, he did not abuse his discretion in finding “no viable alternative to a 

mistrial.” Second, the trial judge based his decision not on a concern that the State 

would be prejudiced by continuing with the trial, but by a desire to avoid prejudicing 

the defendant by forcing him to continue with a trial when the grand jury may have 

based its decision to indict on false testimony, and when defendant therefore may 

not have been indicted at all without the BAC evidence. See Farmer, 48 N.J. at 171. 

Third, the Court disagrees that allowing a retrial here would confer any unfair 

advantage on the State. The “essence to the doctrine of jeopardy” is “that the State 

may not retreat from the field when its case turns sour and then be permitted to sally 

forth on a future day before a new jury when its case is refreshed and reinforced.” 

Gallegan, 117 N.J. at 346. The State did no such thing here. Fourth, defendant will 

not suffer any substantial prejudice beyond what is inherent in any trial or retrial 

after appeal. Fifth, although the trial court found that the State’s handling of the 

blood evidence reflected bad faith and inexcusable neglect, it did not find that the 

State’s conduct was intentional, and defendant concedes that the State did not 

engage in any intentional misconduct. Finally, as the trial court found, the nature of 

the crime weighs strongly in favor of retrial on counts one and two. Prohibiting the 

State from putting forth any evidence or argument that defendant was intoxicated 

acknowledges the harm the State caused defendant by grossly mishandling the blood 

evidence. And allowing the State to present the charges of aggravated manslaughter 

and death by auto to a new grand jury, without evidence of intoxication, recognizes 

that a human being died in this crash. (pp. 28-33) 

4. Because there was no abuse of discretion in finding the mistrial was supported by 

manifest necessity, the Court does not reach whether defendant consented to the 

mistrial or his request to depart from the Kennedy standard in cases of consent. (p. 34)

 AFFIRMED and REMANDED to the trial court. 

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, 

PIERRE-LOUIS, and FASCIALE join in JUSTICE WAINER APTER’s 

opinion. JUDGE SABATINO (temporarily assigned) did not participate. 
1 

SUPREME COURT OF NEW JERSEY 

A-22 September Term 2022

087156

State of New Jersey, 

Plaintiff-Respondent, 

v.

Stephen A. Zadroga, 

Defendant-Appellant. 

On certification to the Superior Court, 

Appellate Division, whose opinion is reported at 

472 N.J. Super. 1 (App. Div. 2022).

Argued 

April 25, 2023 

Decided 

August 9, 2023 

Scott M. Welfel, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; Scott M. Welfel, of counsel and on 

the briefs). 

Leonardo Rinaldi, Assistant Prosecutor, argued the cause 

for respondent (Esther Suarez, Hudson County 

Prosecutor, attorney; Colleen Kristan Signorelli, 

Assistant Prosecutor, on the briefs). 

Oleg Nekritin argued the cause for amicus curiae 

Association of Criminal Defense Lawyers of New Jersey 

(Law Offices of Robert J. De Groot, and Ziegler Law

Group, attorneys; Oleg Nekritin and Jason LeBoeuf, on 

the brief). 
2 

William P. Cooper-Daub, Deputy Attorney General, 

argued the cause for amicus curiae Attorney General of 

New Jersey (Matthew J. Platkin, Attorney General, 

attorney; William P. Cooper-Daub, of counsel and on the 

brief). 

JUSTICE WAINER APTER delivered the opinion of the Court. 

 This case arises from a head-on collision on Paterson Plank Road in 

Jersey City. Defendant was driving 85 to 88 miles per hour three seconds 

before the crash; the posted speed limit was 25 miles per hour. The winding

road had one lane in each direction. There was evidence that defendant’s car 

was over the yellow lines, into opposing traffic, at the time of the collision. 

Defendant’s best friend died in the crash. 

 Pursuant to a warrant, the State seized and tested what they thought was 

defendant’s blood. The blood alcohol content (BAC) came back as 0.376%, 

more than four times the legal limit. Relying on that evidence, the grand jury 

charged defendant with aggravated manslaughter, death by auto, and three 

counts that explicitly accused defendant of driving while intoxicated in 

violation of N.J.S.A. 39:4-50.

After the nurse who drew defendant’s blood testified for the State at 

trial, the State realized that the blood they believed to be defendant’s had 

actually come from a person who had died seven months before the accident. 
3 

Apparently, no detective, prosecutor, or investigator had ever inspected the 

date of collection or patient number written on the blood vials, both of which 

demonstrated that it could not have been defendant’s blood. 

 After the State discovered the error, defendant moved to dismiss the 

indictment with prejudice because the grand jury had relied on false testimony 

to indict him. The trial court granted defendant’s motion as to counts three 

through five, which were dependent on his driving while intoxicated, but 

denied the motion as to counts one and two, aggravated manslaughter and 

death by auto. The court found that although the State’s handling of the blood 

evidence constituted bad faith and inexcusable neglect, allowing defendant to 

be retried on the counts unrelated to intoxication would not violate his rights 

under the Double Jeopardy Clause both because defendant consented to the 

trial’s termination and because there was a manifest necessity to terminate the 

trial. The Appellate Division affirmed on manifest necessity grounds. The 

Appellate Division added that while the State could present counts one and 

two to a new grand jury, it could not present any evidence that defendant was 

under the influence of alcohol at the time of the collision. 

 Defendant argues that a retrial, even on the counts unrelated to 

intoxication, is barred by our State Constitution’s Double Jeopardy Clause. 

According to defendant, he did not consent to the mistrial and a manifest 
4 

necessity to terminate the trial would therefore be required. Yet there can be 

no manifest necessity, defendant contends, when the State has acted in bad 

faith or is guilty of inexcusable neglect. In the alternative, defendant 

maintains that if we find he did consent to the mistrial, we should hold that our 

State Constitution affords greater protection against double jeopardy than the 

Federal Constitution and adopt the test articulated by the Pennsylvania

Supreme Court in Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020), rather 

than the test we have previously applied from Oregon v. Kennedy, 456 U.S. 

667 (1982). 

Because we conclude that the trial court did not abuse its discretion in 

finding manifest necessity justified the mistrial here, we affirm. As the 

Appellate Division held, the State can present the counts of aggravated 

manslaughter and death by auto to a new grand jury, without any evidence on 

intoxication. We do not reach defendant’s alternative argument. 

I.

A.

Because this case was aborted mid-trial, this factual summary is based 

primarily on the presentation to the grand jury rather than testimony elicited at 

trial. 
5 

In the early morning hours of Thursday, November 16, 2017, defendant 

Stephen Zadroga was driving northbound on Paterson Plank Road in Jersey 

City after a night out with friends. With him were Evadne Figueroa in the 

front passenger seat and Matthew Nierstedt, his best friend, in the back seat. 

As defendant drove northbound, Steven Carvache was driving southbound. 

Carvache was accompanied by Nicole Krygoski in the passenger seat. The 

posted speed limit was 25 miles per hour. That section of Paterson Plank Road 

becomes one lane in each direction with “a lot of curves,” divided by a double 

yellow line. 

Detective Tony Espaillat of the Hudson County Prosecutor’s Office 

(HCPO) testified before the grand jury regarding statements he took from 

various witnesses. According to Espaillat, Figueroa told him that she saw 

defendant drink two or three beers and two shots of a dark-colored alcohol but 

did not believe he was intoxicated when she got into his car. She said, 

however, that she felt “scared” during the ride because defendant was 

“speeding,” and that defendant and Nierstedt “just laughed at her” when she 

asked defendant to slow down. 

Espaillat testified that Venicio Rojas, a driver for a charter bus company, 

said that he was stopped at a light facing north on Paterson Plank Road at 

about 1:50 a.m. on November 16, with a Port Authority pickup truck in front 
6 

of him, and a black Mazda -- defendant’s car -- behind him. When the light 

turned green, the Mazda accelerated past Rojas, passing him on the left side 

“at a high rate of speed.” Leon Sergeant, who was riding in the passenger seat

of the Port Authority truck, told Espaillat that defendant tried to pass their 

vehicle on the right “before the [two] lanes merged into one.” 

 Krygoski told Espaillat that she worked at the Corkscrew Bar in Jersey 

City and had served Carvache two or three 12-ounce cans of beer before 

Carvache offered to drive her home. She also stated that she remembered 

(1) the headlights of another vehicle coming toward them on Paterson Plank 

Road “really, really fast,” (2) Carvache trying to swerve out of the way, and 

(3) the other car being over the yellow line at the time of the crash. 

 Detective Joe Bisone, also of the HCPO, testified before the grand jury 

that computer data from the “black box”1 of defendant’s vehicle showed the 

vehicle traveling at “85 to 88” miles per hour three seconds before the crash, 

68 miles per hour one-and-a-half seconds before the crash, and 43 miles per 

hour at the moment of impact. Detective Bisone said that black box data was 

1

 A car’s “black box” is a device called the Event Data Recorder, which 

“records certain technical information about a vehicle’s operational 

performance for a few seconds immediately prior to and during a crash.” Bill 

Canis & David Randall Peterman, Cong. Rsch. Serv., R43651, “Black Boxes” 

in Passenger Vehicles: Policy Issues 1 (2014), available at 

https://sgp.fas.org/crs/misc/R43651.pdf. 
7 

not available for Carvache’s car. However, based on physical evidence from 

the site and collision reconstruction, Detective Bisone concluded that (1) 

Carvache’s car was traveling at approximately 27 to 33 miles per hour on

impact; (2) the collision occurred “predominantly in the southbound lane” --

i.e., Carvache’s lane; and (3) before impact, defendant’s car had been 

“straddling the double yellow lines with the front of the Mazda halfway over 

the line.” 

Detective Espaillat testified about video evidence showing defendant 

being served two 12-ounce bottles of beer at the first bar he visited. He also 

testified that the bartender from the second bar defendant visited said 

defendant drank about three or four 16-ounce beers and two shots of whiskey. 

Video footage at the Corkscrew Bar showed Carvache being served four beers 

between 1:09 and 1:45 a.m. The New Jersey State Police Forensic Lab, 

Espaillat testified, analyzed blood samples from both defendant and Carvache. 

According to Espaillat, Carvache’s blood alcohol content (BAC) was 0.131% 

and defendant’s was 0.376%. 

Nonetheless, no law enforcement or emergency personnel who 

responded to the crash reported observing any signs that defendant was 

intoxicated, seeing any alcohol in defendant’s car, or smelling alcohol on 

defendant’s breath. No one administered any field sobriety tests to defendant. 
8 

After the crash, Carvache, Krygoski, Figueroa, and Nierstedt were 

transported to medical facilities, including Jersey City Medical Center 

(JCMC), for treatment. Defendant was not arrested. He was released to the 

custody of his parents, who later brought him to JCMC to be treated for 

injuries sustained in the crash. JCMC staff took a blood sample from 

defendant. On November 17, 2017, police obtained a warrant and seized what 

they thought was defendant’s blood from JCMC. 

Matthew Nierstedt was pronounced dead at approximately 3 a.m. on 

November 16, 2017. He was 29 years old. 

B.

Defendant was indicted on five counts: first-degree aggravated 

manslaughter; second-degree death by auto; and three counts of victim-specific 

third-degree assault by auto, for injuries sustained by Carvache, Krygoski, and 

Figueroa. The three assault-by-auto counts explicitly charged defendant with 

driving while intoxicated in violation of N.J.S.A. 39:4-50. Carvache was not 

criminally charged. 

C.

 Trial began in July of 2019. During opening statements, counsel for 

defendant told the jury it would hear that defendant’s BAC had been 0.376% 

on the night of the crash. Counsel for the State did not mention defendant’s 
9 

specific BAC but did argue that defendant had been drinking. The jury then 

heard testimony from Figueroa that defendant had been drinking and watched 

video footage of defendant being served alcohol at the first bar. 

On July 11, 2019, during the second day of witness testimony, the State 

called Melissa Rosario, the nurse who had drawn defendant’s blood at JCMC. 

She testified during cross examination, based on the blood draw orders, that 

she drew two vials of defendant’s blood on November 16, 2017. Yet the 

prosecutor realized he had five vials of what he believed to be defendant’s 

blood in evidence. 

Upon inspection, the State noticed that the five vials of blood were 

labeled “John Doe,” with a collection date of April 4, 2017, and a patient 

number that did not match any of the patient identification numbers on 

defendant’s JCMC medical records. The State sent detectives to the hospital 

on July 12, 2019. The investigation revealed that the five vials of blood the 

State collected from JCMC on November 17, 2017, had come from a patient 

who was admitted to the hospital in April of 2017 and died shortly thereafter. 

Defendant’s blood sample had been irretrievably lost. 

Apparently, throughout the entire process of the Hudson County 

Prosecutor’s Office seizing the five vials of blood from JCMC, transferring

them to the State Lab for analysis, and then collecting them from the lab and 
10

maintaining possession of them for more than one year before trial, no 

detective, prosecutor, or investigator ever inspected the date of collection or 

patient number written on the vials and realized the discrepancy. This is true 

despite the incongruity between the lab’s report that defendant’s BAC was 

0.376% -- more than four times the legal limit -- and the fact that no law 

enforcement officer who responded to the crash reported observing any signs 

that defendant was intoxicated. 

The State reported the results of its investigation to the trial court and to 

defense counsel on July 12. 

D.

On Sunday, July 14, defendant moved to dismiss the indictment with 

prejudice “because the state presented false testimony to the grand jurors.” 

During oral argument the next day, the State emphasized that it had not 

yet presented evidence of defendant’s BAC to the jury, and it was prepared to 

proceed with trial “without the toxicology testimony,” subjecting its witnesses 

to cross examination on its error. However, the State conceded that the 

indictment was “palpably defective” because the grand jury had heard that 

defendant’s BAC was 0.376%, and admitted that it did not know of a “curative 

instruction or limiting instruction . . . that would allow th[e] trial to proceed” 

under those circumstances. The State specifically argued that by moving to 
11

dismiss the indictment, defendant was “not objecting to termination of the 

trial” under N.J.S.A. 2C:1-9(d)(1), and there was also a “manifest necessity to 

declare a mistrial” under N.J.S.A. 2C:1-9(d)(3). 

Defense counsel responded that the “case needs to be dismissed.” He 

maintained that his client should not be forced to endure a retrial because 

defendant’s parents had already paid more than $100,000 “to defend their 

son.” The State was “negligent in the way they handled this case,” defense 

counsel urged, and what the prosecutor had admitted was “an outrage.” 

The trial court reserved decision until later that day. On the record, the 

court then held that because “defendant . . . consented to the mistrial,” a retrial 

would only be barred if the prosecutor “intended to provoke a mistrial.” There 

was “no evidence,” the court concluded, that the State “intended to provoke a 

mistrial.” The court acknowledged that the manifest necessity standard 

applied only “in a situation where the defendant does not consent” to a 

mistrial, and again specifically found that defendant had consented, but went 

on to reach manifest necessity anyway. Correctly detailing the factors set forth 

in State v. Farmer, 48 N.J. 145 (1966), and State v. Loyal, 164 N.J. 418 

(2000), the court held there was a manifest necessity to declare a mistrial 

because the grand jury testimony relied heavily on defendant’s 0.376% BAC 

level, and there was no “viable alternative to a mistrial.” 
12

The judge then informed counsel that the jury would be discharged. The 

trial was thus terminated before defense counsel introduced any witnesses or 

evidence. 

Three weeks later, defendant moved for reconsideration, again asking 

the court to dismiss the indictment with prejudice. Defendant argued that the 

State’s “reckless conduct shocks the conscience and rises to the level of willful 

conduct which denied [his] constitutional right of ‘fundamental fairness.’” 

Defendant also contended that the State violated his due process rights under 

Brady v. Maryland, 373 U.S. 83 (1963), by not preserving his blood sample 

and by sending another person’s blood to be tested. 

The trial court held oral argument and raised the issue of double 

jeopardy. Defendant then submitted a supplemental brief arguing that because 

“the State goaded” him into moving to dismiss the indictment, his motion to 

“bar the State from further prosecution should be granted.” The State filed an 

opposition brief, arguing that it had not intended to provoke a mistrial or goad 

defendant into moving to dismiss the indictment. 

After a second oral argument, the trial court issued a written opinion. 

The court held that the State violated defendant’s due process rights under 

Brady. In support of that holding, the court found that the State’s “handling of 
13

the blood vial evidence” was not only “negligent and inept,” but also 

supported a finding of bad faith and inexcusable neglect: 

Here, the State failed to execute the search warrant and 

secure the probative evidence and later relied upon non 

probative evidence to prosecute the defendant. The

detectives here cannot be said to have followed their 

protocols or policies in good faith, and their failure to 

do so warrants a finding of bad faith. The neglect that 

occurred here is inexcusable. The State’s conduct 

amounted to a complete abrogation of the sworn duty

of the State . . . . 

[(emphasis added).] 

As to double jeopardy, the trial court explained that “in order to 

safeguard the Defendant’s rights,” it had “granted a mistrial and the dismissal, 

without prejudice, of the indictment upon the application of the Defendant.” 

(emphases added). Reiterating that the State’s handling of the blood evidence 

was “inexcusable,” the trial court found the State nonetheless did not intend 

“to ‘goad’ the Defendant into moving for a mistrial.” (quoting State v. 

Gallegan, 117 N.J. 345, 358 (1989)). 

The trial court also held that termination of the trial was supported by a 

“manifest necessity.” According to the trial court, the State did not engage in 

“the ‘oppressive’ conduct contemplated by” Farmer, 48 N.J. at 174-75,

because it was willing to continue the trial and subject its witnesses to cross 

examination about the error, and because the same evidence through which the 
14

State could have discovered the error prior to trial “was also available to the 

Defendant.” The court noted that, under Farmer, it was required to consider 

not only the rights of defendant, but also “the public right to have the accused 

tried and punished if found guilty,” which was particularly important here 

given the “seriousness of the crime charged.” 

Because the State’s “inexcusable conduct” directly impacted the three 

counts of the indictment that were “predicated upon a finding of the 

Defendant’s BAC level,” the trial court dismissed counts three, four, and five 

with prejudice. However, because defendant had not been “subjected to the 

quantum of oppression, harassment, or egregious deprivation necessary to 

warrant a dismissal” of counts one and two with prejudice, the trial court 

denied defendant’s motion for reconsideration as to those two counts. 

E.

Defendant appealed, arguing that the State’s conduct was so 

“outrageous” that “due process principles absolutely bar[red]” a retrial. The 

State did not cross-appeal the dismissal of counts three, four, and five with 

prejudice. The Appellate Division invited the Office of the Public Defender to 

participate as amicus curiae. The Public Defender asserted that the trial court 

erred in concluding that defendant had consented to the mistrial in this case. 
15

The Appellate Division held that retrial on counts one and two would not 

violate double jeopardy because “the mistrial was justified on the grounds of 

manifest necessity.” State v. Zadroga, 472 N.J. Super. 1, 8 (App. Div. 2022). 

The Appellate Division acknowledged that it did not have access to the trial 

transcripts, but “presume[d]”

2

 that the State had emphasized, during its 

opening, “that defendant was heavily intoxicated at the time of the collision,” 

and that witnesses had testified to the same. Id. at 22. “[O]nce the sudden 

bombshell about the mistaken blood sample was revealed,”3 the Appellate 

Division concluded, “there was no realistic way for the jurors to ignore that 

enormous mistake. A limiting instruction would not have sufficed to cure the 

massive prejudice to the State that defense counsel would surely exploit.” Id. 

at 22-23 (emphasis added). 

However, the court found that there was “ample non-alcohol-related 

evidence” of defendant’s “criminally reckless driving to justify his re2

 We consider it problematic that neither defendant nor the State provided the 

Appellate Division with trial transcripts, leaving the court to “presume” 

critical elements of the record. 

3

 Because the Appellate Division did not have the trial transcripts, it did not 

know that there was no “bombshell” revelation to the jury. Rather, the State 

discovered the error after the conclusion of Rosario’s testimony, and the 

motions that followed were argued outside the presence of the jury. The jury 

was discharged before learning anything about the mistaken identification of 

the blood samples as defendant’s. 
16

prosecution on counts one and two.” Id. at 25. It therefore concluded that the 

proper remedy was to permit the State to re-present counts one and two “to a 

new grand jury, solely based on the reckless driving evidence without proof or 

contentions of defendant’s intoxication or impairment.” Id. at 8 (emphasis 

added); accord id. at 26 (barring the State, before a new grand jury or at trial, 

from “offer[ing] proof of any kind to show that defendant was under the 

influence of alcohol at the time of the collision”). 

F.

 Defendant, now represented by the Public Defender, petitioned for 

certification, framing the question presented as: “When an unanticipated 

problem with the State’s evidence causes prejudice to the State’s case midtrial 

-- a problem that was in no way caused by Defendant -- can this ‘prejudice to 

the State’ constitute a ‘manifest necessity’ to declare a mistrial without 

triggering the double jeopardy bar to a re-trial?” The State did not file a crosspetition. 

We granted certification. 252 N.J. 325 (2022). We also granted leave to 

the Attorney General and the Association of Criminal Defense Lawyers of 

New Jersey (ACDL) to appear as amici curiae. 
17

II. 

 Defendant advances several reasons why retrial should be barred. First, 

defendant maintains, his double jeopardy claim must be analyzed under 

Farmer, 48 N.J. 145, and not Kennedy, 456 U.S. 667, because he “did not 

consent to the mistrial in any meaningful way.” Second, defendant contends 

that under Farmer, “where the State’s inexcusable neglect created the need for 

a mistrial,” there cannot be a manifest necessity and “double jeopardy 

categorially bars retrial.” Third, if this Court disagrees and finds defendant 

consented to the mistrial, it should “hold that our State constitutional double 

jeopardy clause affords great[er] protection” than the Federal Constitution, and 

“adopt the recklessness test articulated in” Johnson instead of Kennedy’s

intent-based test. 

 The State argues that double jeopardy does not bar retrial for two 

independent reasons. First, it asserts that under Farmer, “termination of the 

trial was proper because there was a manifest necessity.” Second, the State 

urges that the less burdensome Kennedy standard, and not Farmer, should 

apply because defendant consented to the mistrial. In the State’s view, 

defendant’s motion to dismiss the indictment, even with prejudice, constituted 

a clear waiver of his right “to have that particular trial completed by that 
18

particular tribunal.” Because, under Kennedy, “the State did not goad 

defendant into moving for a mistrial,” termination was proper. 

 The Attorney General maintains that, as to manifest necessity, there was 

no alternative to granting a mistrial because the indictment itself was 

defective, and no “curative instruction or evidentiary limit before the petit 

jury” could fix that defect. The Attorney General also asserts that Farmer 

should not apply because defendant consented to the mistrial. According to 

the Attorney General, “[a] midtrial motion to dismiss an indictment,” even 

with prejudice, “is intrinsically a motion to terminate the trial as a trial cannot 

possibly continue if a judge dismisses the indictment.” The question is not 

“whether the defendant is consenting to retrial,” the Attorney General alleges; 

it is “whether the defendant is consenting to not get a verdict from the jury 

that’s been impaneled.” Because defendant so consented, the Kennedy 

standard should apply. Finally, the Attorney General urges this Court not to 

adopt the standard articulated in Johnson. 

 The ACDL submits that “Double Jeopardy is the ‘stick’ that acts as a 

deterrent against the State violating the Defendant’s due process rights at 

trial,” and therefore must “bar the State from prosecuting the Defendant, a 

second time, after its bad faith and inexcusable neglect caused the trial court to 

declare a mistrial, so as not to prejudice the State.” 
19

III. 

A.

 A decision to dismiss an indictment is generally left to the sound 

discretion of the trial court and is reviewed only for abuse of discretion. See 

State v. Twiggs, 233 N.J. 513, 544 (2018). The decision to declare a mistrial 

is similarly “entrusted to the sound discretion of the trial court,” and will be 

reversed only when it constitutes “an abuse of discretion that results in a 

manifest injustice.” State v. Harvey, 151 N.J. 117, 205 (1997). “Whether 

‘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 court.” Loyal, 164 N.J. at 435. 

B.

 The Fifth Amendment to the United States Constitution, applicable to 

the states through the Fourteenth Amendment, protects defendants from 

repeated prosecutions for the same offense by guaranteeing that no person 

shall “be subject for the same offence to be twice put in jeopardy of life or 

limb.” Our Constitution provides that “[n]o person shall, after acquittal, be 

tried for the same offense.” N.J. Const. art. I, ¶ 11. 

Despite the arguably narrower language in our State Constitution, we

have “consistently interpreted the State Constitution’s double-jeopardy 
20

protection as coextensive with the guarantee of the federal Constitution.” 

State v. Miles, 229 N.J. 83, 92 (2017). This is perhaps because the protection 

against double jeopardy has been long venerated in our state’s common law. 

See Farmer, 48 N.J. at 168 (explaining that the difference in language between 

the federal and state constitutional provisions was “without distinction in 

meaning” in light of the “historical evolution and treatment” of the protections 

against double jeopardy in our state). 

Even before double jeopardy was explicitly prohibited in our state’s 

1844 Constitution, courts in our state “recognized it, and acted upon it, as one 

of the most valuable principles of the common law.” State v. Cooper, 13 

N.J.L. 361, 370 (Sup. Ct. 1833). The framers of our 1844 Constitution then 

codified the already “well settled principle of the common law, that no person 

shall twice have his life or property endangered for the same offense.” 

Proceedings of the New Jersey State Constitutional Convention of 1844 152 

(1942); see also State v. Labato, 7 N.J. 137, 143-44 (1951) (“Immunity from 

repeated jeopardy was one of the cherished basic liberties of the early common 

law” and “constitutional guaranties against double jeopardy are [therefore] 

merely declaratory of the common law.”).

Jeopardy “attaches after the jury is impaneled and sworn.” State v. 

Allah, 170 N.J. 269, 279 (2002). At that point, the defendant has the right to 
21

have the impaneled jury proceed to a verdict. Id. at 280. Double jeopardy 

therefore protects “the right of the defendant to have his trial completed before 

the first jury empaneled to try him.” Kennedy, 456 U.S. at 673 (emphasis 

added); see also Wade v. Hunter, 336 U.S. 684, 689 (1949) (holding that the 

federal Double Jeopardy Clause protects a criminal defendant’s “valued right 

to have his trial completed by a particular tribunal”). 

“However, termination of a trial after jeopardy attaches does not 

necessarily prohibit subsequent re-prosecution. Only the improper termination 

of proceedings bars retrial.” Allah, 170 N.J. at 280 (emphasis added) (citation 

omitted). 

Termination can be proper, and a retrial not barred by double jeopardy 

principles, in two circumstances. First, where the defendant does not request 

or otherwise consent to a mistrial, termination is proper and there is no bar to 

retrial only if there is a “manifest necessity” to terminate the proceedings. 

Loyal, 164 N.J. at 435. The manifest necessity standard protects “the 

defendant’s interests in having his case finally decided by the jury first 

selected while at the same time maintaining ‘the public’s interest in fair trials 

designed to end in just judgements.’” Kennedy, 456 U.S. at 672 (quoting 

Wade, 336 U.S. at 689). That is so because “[w]here the court finds a 

sufficient legal reason and manifest necessity to terminate a trial, the 
22

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. 

Although “manifest necessity requires a ‘high degree of necessity,’ 

making that judgment call is ‘reserved to the broad discretion of the trial 

judge.’” State v. Smith, 465 N.J. Super. 515, 536 (App. Div. 2020) (quoting 

Orie v. Sec’y Pa. Dep’t of Corr., 940 F.3d 845, 851 (3d Cir. 2019)). “[T]here 

are no rigid rules as to what constitutes” a manifest necessity. Ibid. Instead, 

we have previously set forth the following considerations: (1) “Did the trial 

court properly exercise its discretion so that a mistrial was justified?” (2) Did 

the trial court “have a viable alternative” to granting a mistrial? (3) “[W]hat 

circumstances created the situation” that justified the mistrial, e.g., “[w]as it 

due to prosecutorial or defense misconduct?” (4) “Will a second trial accord 

with the ends of public justice and with proper judicial administration?” 

(5) “Will the defendant be prejudiced by a second trial, and if so, to what 

extent?” Loyal, 164 N.J. at 437 (quoting State v. Rechtschaffer, 70 N.J. 395, 

410-11 (1976)). 

Second, when the defendant requests or otherwise consents to a mistrial, 

manifest necessity need not be shown. Instead, under the federal Due Process 

Clause, termination is not improper and there is no bar to retrial as long as the 

prosecutor did not “‘goad’ the defendant into moving for a mistrial.” 
23

Kennedy, 456 U.S. at 673, 676. In other words, when the defendant 

successfully moves for a mistrial, retrial is barred only if the State “intended to 

provoke the defendant into moving for a mistrial.” Id. at 673, 679 (emphasis 

added); see also id. at 676 (“Only where the governmental conduct in question 

is intended to ‘goad’ the defendant into moving for a mistrial may a defendant 

raise the bar of double jeopardy to a second trial after having succeeded in 

aborting the first on his own motion.”). 

We adopted the Kennedy standard in Gallegan, 117 N.J. at 357-58 

(discussing Kennedy and assessing “whether the prosecution intended to 

subvert [the] defendants’ protection against double jeopardy by prosecutorial 

misconduct”), and have continued to apply it since, see, e.g., State v. Brown, 

236 N.J. 497, 527-28 (2019) (“[T]he bar of double jeopardy is limited to ‘those 

cases in which the conduct giving rise to the successful motion for a mistrial 

was intended to provoke the defendant into moving for a mistrial.’” (quoting 

Kennedy, 456 U.S. at 679)).

In 1978, our Legislature chose to codify constitutional double jeopardy 

protections. Under N.J.S.A. 2C:1-9(d), “[a] prosecution of a defendant for a 

violation of the same provision of the statutes based upon the same facts as a 

former prosecution is barred” if the first trial “was improperly terminated.” 

The statute specifically provides that 
24

[t]ermination under any of the following circumstances

is not improper: 

(1) The defendant consents to the termination or 

waives, by motion to dismiss or otherwise, his right 

to object to the termination. 

. . . . 

(3) The trial court finds that the termination is 

required by a sufficient legal reason and a manifest 

or absolute or overriding necessity. 

[N.J.S.A. 2C:1-9(d).] 

IV. 

A.

We hold that the trial court did not abuse its discretion in finding that 

termination of the trial was supported by a manifest necessity. We therefore 

affirm. 

In defendant’s view, under Farmer, “a manifest necessity permits retrial 

only where the need for the mistrial was not created by the State’s bad faith or 

inexcusable neglect.” (emphasis added). Where there is a finding of bad faith 

or inexcusable neglect on the part of the State, defendant maintains, retrial is 

categorically barred by Farmer. We disagree. 
25

Defendant’s argument is based on two passages from Farmer that, 

considered in isolation, could be read to preclude a finding of manifest 

necessity if the State acted in bad faith or was guilty of inexcusable neglect. 

The first reads: 

If in [the trial court’s] judgment emergent conditions 

come into being which persuade him that the ends of

justice for the defendant and the State cannot be 

achieved without aborting the trial, neither the Federal 

nor the State Constitution proscribes such an order. 

This is particularly true where the circumstances which 

to him compel the order do not bespeak bad faith or

oppressive conduct by the prosecution or a desire or 

effort to improve the chances of conviction at a 

subsequent trial . . . . 

[48 N.J. at 171 (emphasis added) (citation omitted).] 

 The second is similar: 

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 court 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. 

[Id. at 174 (emphasis added).]

However, four features of Farmer make clear that it did not categorically 

bar retrial even if there is a finding that the State’s conduct reflected bad faith 

or inexcusable neglect. 
26

First, Farmer acknowledges that “there is no over-all formula, no hard 

and fast rule for determining when an order of mistrial will cause the jeopardy 

bar to spring into being, [and so] each case must depend upon its own facts and 

the urgency of its circumstances.” Id. at 177. No “hard and fast rule” for 

determining when double jeopardy bars a retrial means that even a finding of 

bad faith or inexcusable neglect will not always bar a second trial. 

Second, Farmer emphasizes the “wide range of discretion” in finding a 

manifest necessity “recognized in the trial judge, who has his finger on the 

pulse of the proceedings.” Id. at 171 (explaining further that, “[i]n this 

sensitive area[,] appellate courts must realize that under our system the 

conduct of a trial is committed to the trial judge, and that in appraising the 

exercise of his discretionary action a wise and tolerant restraint must be 

practiced if the separate levels of the judicial process are to be maintained”). 

Placing a wide range of discretion in the trial judge is not consistent with 

forbidding the judge from finding a manifest necessity if he also finds the 

State’s conduct demonstrated bad faith or inexcusable neglect. 

Third, Farmer twice explains that appellate courts should not find an 

abuse of discretion where the trial court declares a mistrial to protect a 

defendant’s interests. See ibid. (“[A]ppellate reluctance to interfere with a sua 

sponte declaration of a mistrial should be even more pronounced where it is 
27

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

defendant’s interests.”); id. at 175 (observing that if a court declares a mistrial 

“to safeguard the right of the defendant to a full and fair trial . . . there is even 

less basis for a claim of trespass upon the privilege against double jeopardy”). 

As we discuss further below, a trial court can find the State’s conduct 

consistent with bad faith and inexcusable neglect and still find a mistrial 

necessary to protect the defendant’s rights. 

Fourth, the Farmer Court acknowledged that a declaration of manifest 

necessity must balance “the right of the accused to be prosecuted fairly and not 

oppressively” against “the societal right to have the accused tried and punished 

if found guilty.” Id. at 175 (recognizing “the right of society to have its trial 

processes applied fully and fairly in the due administration of the criminal 

law”). Society’s right to prosecute those who commit crimes can exist even 

when the trial court determines that a particular action of the State reflected 

bad faith or inexcusable neglect. 

We therefore do not read Farmer to establish a per se rule that, whenever 

a mistrial follows the State’s bad faith or inexcusable neglect, retrial is barred 

on all counts. 

We also decline defendant’s invitation to create such a rule. We instead 

find that application of the fact-specific balancing tests set forth in Farmer and 
28

Loyal, which weigh all circumstances and consider both the public’s interest 

and the defendant’s rights, is the best course when the State’s non-intentional 

misconduct leads to a mistrial. 

B.

The trial court did not abuse its discretion in balancing those interests 

here. Several points bear mentioning. 

First, the ACDL argues that “[i]nstead of declaring a mistrial, the court 

should have issued a corrective or limiting instruction regarding the State’s 

incorrect assertions about the Defendant’s B.A.C.” It is true that a trial court 

abuses its discretion in finding a manifest necessity “if the court has an 

appropriate alternative course of action.” Allah, 170 N.J. at 280-81. As we 

have observed, “a curative instruction, a short adjournment or continuance, or 

some other remedy, may provide a viable alternative to a mistrial, depending 

on the facts of the case.” State v. Smith, 224 N.J. 36, 47 (2016). 

The trial court did not abuse its discretion in finding there was no viable 

alternative to a mistrial here. Defendant moved to dismiss the indictment 

“because the state presented false testimony to the grand jurors.” There is no 

curative instruction for that, no adjournment that can cure an indictment that 

was based on false testimony. And although the State indicated it was ready to 

proceed with trial without the toxicology evidence, submitting its witnesses to 
29

cross examination on its error, defense counsel insisted that the “case need[ed] 

to be dismissed.” The “unique circumstances of the case” must guide the 

decision as to whether an alternative to a mistrial exists. Ibid. Once the trial 

judge held that the grand jury relied heavily on defendant’s 0.376% BAC 

level, he did not abuse his discretion in finding “no viable alternative to a 

mistrial.” 

Second, defendant frames the question presented as whether “prejudice 

to the State” can “constitute a ‘manifest necessity’ to declare a mistrial without 

triggering the double jeopardy bar to a re-trial.” (emphasis added.) Defendant 

is correct that the Appellate Division stated “once the sudden bombshell about 

the mistaken blood sample was revealed . . . [a] limiting instruction would not 

have sufficed to cure the massive prejudice to the State that defense counsel 

would surely exploit.” Zadroga, 472 N.J. Super. at 22-23 (emphasis added). 

However, the Appellate Division did not have access to the trial transcripts, 

and thus was without a record of what actually happened at trial. And the 

“wide range of discretion” in finding a manifest necessity is recognized not in 

the Appellate Division, but “in the trial judge, who has his finger on the pulse 

of the proceedings.” Farmer, 48 N.J. at 171. 

Here, the trial judge based his decision not on a concern that the State 

would be prejudiced by continuing with the trial, but by a desire to avoid 
30

prejudicing the defendant by forcing him to continue with a trial when the 

grand jury may have based its decision to indict on false testimony, and when 

defendant therefore may not have been indicted at all without the BAC 

evidence. The trial court explicitly noted that it granted a mistrial “in order to 

safeguard the Defendant’s rights.” (emphasis added). We have no basis to 

upset that finding. Like in Farmer, notwithstanding that sentence in the 

Appellate Division’s opinion, the trial court’s primary motive for granting the 

mistral “was solicitude for the defendant’s interests.” 48 N.J. at 171. 

Third, defendant contends that “allowing a retrial in this situation would 

allow the State to benefit from its own misconduct.” The ACDL goes further, 

arguing that allowing a retrial would allow the State to “adjust its own strategy 

and tactics” in response to defendant’s strategy during the first trial and also to 

fix “[m]istakes in jury selection, unfavorable evidentiary rulings, poor 

feedback from the jury, lack of witness availability, etc.” 

We disagree that allowing a retrial here would confer any unfair 

advantage on the State. Trial ended before defendant called a single witness or 

introduced a single piece of evidence. Defendant conceded at oral argument 

that the State did not intentionally goad a mistrial, and there was no “mistake 

in jury selection, unfavorable evidentiary ruling, or poor feedback from the 

jury” that the State sought to escape. We have previously held that the 
31

“essence to the doctrine of jeopardy” is “that the State may not retreat from the 

field when its case turns sour and then be permitted to sally forth on a future 

day before a new jury when its case is refreshed and reinforced.” Gallegan, 

117 N.J. at 346 (quoting State v. Stani, 197 N.J. Super. 146, 151 (App. Div.

1984)). The State did no such thing here. 

Fourth, we do not discount the “embarrassment, expense and ordeal and 

. . . continuing state of anxiety and insecurity” that any trial places upon a 

defendant. See Green v. United States, 355 U.S. 184, 187 (1957). But 

defendant will not suffer any substantial prejudice beyond what is inherent in 

any trial or retrial after appeal. For example, defendant does not contend that 

his witnesses or evidence are no longer available, and we do not find that he 

will otherwise be prejudiced in putting forth a defense in any material way.4 

Like in Farmer, “defendant has not suffered any substantial prejudice” and 

“the mistrial was not caused by any intention of the prosecution to take an 

undue advantage, or to oppress [defendant] in his effort to defend himself.” 

See 48 N.J. at 184.

Fifth, although the trial court found that the State’s handling of the blood 

evidence reflected bad faith and inexcusable neglect, it did not find that the 

4

 Defense counsel conceded at argument before this Court that funds 

defendant’s family spent on the first trial do not suffice to show prejudice for 

purposes of the Double Jeopardy Clause. 
32

State’s conduct was intentional, and defendant concedes that the State did not 

engage in any intentional misconduct. The trial judge held that the State did 

not engage in “the ‘oppressive’ conduct contemplated by” Farmer because it 

was willing to continue the trial and subject its witnesses to cross examination 

about its error. 

Defendant contends that the “core purpose” of the Double Jeopardy 

Clause is to protect “defendants against the harassment of unfair, repeated 

prosecutions.” But the trial court explicitly found that defendant had not been 

“subjected to the quantum of oppression, harassment, or egregious deprivation 

necessary to warrant a dismissal” of counts one and two with prejudice. We 

see no basis to disturb that finding. See, e.g., Brown, 236 N.J. at 528 (holding 

that “the bar of double jeopardy [did] not apply” because there was no 

evidence or allegation that the State acted willfully “and no evidence of 

prosecutorial provocation or other willful misconduct”). 

Finally, as the trial court found, the nature of the crime weighs strongly 

in favor of retrial on counts one and two. The black box on defendant’s car 

showed it travelling 85 to 88 miles per hour three seconds before the crash, on 

a road that was one lane in each direction and had “a lot of curves.” Zadroga, 

472 N.J. Super. at 11. The posted speed limit was 25 miles per hour. There 
33

was evidence that defendant’s car was over the yellow lines, in Carvache’s 

lane, at the time of the collision. And a person died in the crash. 

Dismissal of charges “and a permanent bar to retrial” is “strong 

medicine” in any case. People v. Batts, 68 P.3d 357, 370 (Cal. 2003). “[B]y 

denying courts power” to try a defendant for a crime, “the purpose of law to 

protect society from those guilty of crimes” is frustrated. Kennedy, 456 U.S. 

at 672 (quoting Wade, 336 U.S. at 689). 

Here, the trial court did not abuse its discretion in holding that the State 

should be permitted to retry defendant on those counts that did not depend on 

intoxication. And the Appellate Division did not err in permitting the State to 

re-present counts one and two “to a new grand jury, solely based on the 

reckless driving evidence without proof or contentions of defendant’s 

intoxication or impairment,” a determination the State does not challenge. 

Zadroga, 472 N.J. Super. at 8. 

Prohibiting the State from putting forth any evidence or argument that 

defendant was intoxicated acknowledges the harm the State caused defendant 

by grossly mishandling the blood evidence. And allowing the State to present 

the charges of aggravated manslaughter and death by auto to a new grand jury, 

without evidence of intoxication, recognizes that a human being died in this 

crash. 
34

C. 

Because we conclude that the trial court did not abuse its discretion in 

finding that the mistrial was supported by manifest necessity, we need not 

reach whether defendant consented to the mistrial. Cf. Smith, 465 N.J. Super. 

at 532 n.14 (holding that the mistrial was supported by manifest necessity and 

declining to address whether defendants waived their right to object to the 

termination). 

We also need not decide whether, when a defendant consents to a 

mistrial, we should continue to follow our precedent and apply Kennedy’s

prosecutorial-misconduct-that-intended-to-provoke-a-mistrial standard or 

instead hold that our State Constitution’s Double Jeopardy Clause provides 

some greater protection than the Federal Double Jeopardy Clause. We decline 

to comment on defendant’s request that we adopt Pennsylvania’s rule, set forth 

in Johnson, that when a defendant consents to a mistrial, retrial should be 

barred if prosecutorial misconduct is “undertaken recklessly, that is, with a 

conscious disregard for a substantial risk that [denial of a fair trial] will be the 

result.” 231 A.3d at 826. 

V.

 The judgment of the Appellate Division is affirmed, and the case is 

remanded to the trial court for further proceedings. 
35

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, 

PIERRE-LOUIS, and FASCIALE join in JUSTICE WAINER APTER’s 

opinion. JUDGE SABATINO (temporarily assigned) did not participate.