Although the life-without-parole sentences imposed on defendants are “the second most severe penalty permitted by law,” State v. Zuber (2017) (quoting Graham v. Florida, (2010)), our Crime Victim’s Bill of Rights, N.J.S.A. 52:4B-34 to -38, requires us to ensure that our victim-focused provisions — including involvement of the victim’s family — were vindicated by the federal prosecution. Here, for example, it appears that James’s family was present at the state proceedings, but — although the federal record is unclear on this point — there is no suggestion that his family attended the federal sentencing proceeding. Thus, although the question is close, here the factors on balance tip in favor of finding that the federal prosecution did not adequately serve the State’s interests.
Accordingly, we conclude that the trial court did not abuse its discretion in denying defendants’ motion to dismiss the indictment. Because failure to satisfy any element of the statute indicates that dismissal of the indictment is not the appropriate result, we need not reach the question of whether the two prosecutions were “based on the same conduct,” as N.J.S.A. 2C:1-3(f) requires.
This decision invites collusion between federal and state prosecutors. It is not difficult to imagine that a state prosecutor would encourage a federal prosecutor, or vice-versa, to take certain steps and omit others so that a subsequent prosecution can be had without violating double jeopardy and/or fundamental fairness.