Jurisdiction and Subsequent Prosecutions (Part 1)

On June 8, 2022, the New Jersey Supreme Court decided the Atlantic County case of State v. Mykal Derry. The principal issue under N.J.S.A. 2C:1-3 was whether the state prosecution was permissible after a federal conviction for drug and firearm charges that were linked to the murder.

Justice Solomon wrote for a unanimous Court in relevant part: We begin our analysis of whether the federal prosecution served New Jersey’s interests by emphasizing the discretion granted to the trial court by N.J.S.A. 2C:1-3(f) to dismiss or take some lesser action, see Crim. L. Revision Comm’n, at 5, and the deferential standard that we apply to denials of motions to dismiss indictments, see Twiggs, 233 N.J. at 532. Here, we apply those standards to determine whether the federal life-plus-ten-years sentence, without the possibility of parole, adequately serves the State’s interests such that dismissal of defendants’ indictment is in the interest of justice.

We recognize that murder, the offense the State seeks to prosecute defendants for, “is the most heinous and vile offense proscribed by our criminal laws.” State v. Serrone, (1983); accord State v. Comer, (2022). In Serrone, we observed that “in dealing with this particularly egregious offense, great deference must be given to the legislative intent governing sentencing.” Like the Legislature, “historically, a prosecutor has been vested with broad discretionary powers to be exercised in the conscientious discharge of the manifold responsibilities of his office,” State v. McCrary (1984), which include seeking justice for victims and ensuring the public’s safety, see N.J. Const. art. I, ¶ 22; N.J.S.A. 52:4B-36. We afford the prosecutor’s decision here commensurate deference.

Considering that the defendants are already serving life sentences, it seems like a waste of resources to prosecute them in state court. While a state court conviction can serve as a safety net to keep them locked up if the federal conviction is overturned, there is no statute of limitations of murder. Therefore, the state could wait for a relatively unlikely federal conviction to be overturned before expending substantial resources on the state case.