On July 9, 2026, a three-judge appellate panel decided the Atlantic County case of State v. Fredy Hernandez. The principal issue under N.J.S.A. 2C:1-9 was whether a prosecution violated double jeopardy after a mistrial in which the judge did not determine which count the jury unanimously agreed upon.
Judge Chase wrote for the panel in relevant part: The plain language of the respective offenses defendant was charged with shows, irrefutably, that each contains one or more elements that the other does not. First, aggravated sexual assault under N.J.S.A. 2C:14-2(a)(1) requires a victim to be under the age of thirteen, whereas N.J.S.A. 2C:24-4 requires only that the victim be under eighteen. A different age clearly is a vital element of each offense. The acts described by either statute would not, if performed with an adult, be sufficient to constitute a criminal offense.
Second, N.J.S.A. 2C:24-4(a) also contains an element missing from N.J.S.A. 2C:14-2(a)(1): that the sexual conduct involved “would impair or debauch the morals of the child.” Our Supreme Court has squarely held that whether an act “‘would impair or debauch the morals’ of a child” is a “separate” substantive element of the offense of endangerment. State v. Hackett (2001). Because each offense required elements the other did not, a partial verdict would not bar retrial of the remaining count. If each statute contains at least one unique element, the subsequent prosecution may proceed. Therefore, the trial court mistakenly exercised its discretion by accepting the legal arguments made by the prosecutor–arguments that were based on an analytical test that had long since been jettisoned by both the United States and New Jersey Supreme Courts.
The implication is that the prosecutor was confident that s/he would secure a conviction on the most serious count if given a second chance at prosecuting the case. We will never now if the jury would have convicted on that count if a partial verdict was permitted. We know the defendant would have been convicted of something but for the prosecution’s all-or-nothing approach.
Convictions after retrials are much more common since the prosecution is aware of the defense strategy during the retrial. With limited exceptions, the defense is not required to provide discovery. The prosecution has far greater discovery obligations. Thus, the defense strategy is usually much more of a mystery at the first trial.
The Appellate Division continued in relevant part: We next consider the appropriate remedy for the trial court’s misapplication of the governing Blockburger test. We find some guidance from State v. Salter (App. Div. 2012). In Salter, the defendant was charged with two counts of first-degree aggravated sexual assault for two incidents that occurred on the same day, one in the morning and one in the evening. The formal statements of the two charges–i.e., in the indictment, jury instruction, and verdict sheet–were identical to one another, each referring to an incident of the same act occurring at an unspecified time within the same multi-day period. As a result, when the jury returned an acquittal on one count and a conviction on the other, it was unclear which verdict belonged to the “morning” incident, and which belonged to the “evening” incident.
The conviction was overturned on appeal for unrelated reasons. The trial court then found that the defendant could not be retried and we affirmed. We reasoned that, whichever incident–“morning” or “evening”–the jury had acquitted defendant of was not amenable to retrial and, as a consequence of the ambiguous instructions and verdict sheet, it was unclear which incident that was. Therefore, there was at least “a colorable argument that defendant’s retrial would violate double jeopardy,” and the State could not prove that it would not.
In Salter we lamented that it was necessary to dismiss the charge despite the previous, though overturned, conviction, acknowledging the “important sovereign interest” served by appropriate prosecutions. Yet we also recognized that “we could not say with any confidence that defendant would not endure ‘a second prosecution for the same offense after acquittal,’ something categorically prohibited by our double jeopardy jurisprudence.”
A trial court’s failure to accept a partial verdict will almost always preclude a reviewing court from knowing which, if any, count the jury had resolved. The confusion results from the fact that the trial judge declared a mistrial rather than inquire further or accept a partial verdict. Furthermore, “once a jury has been discharged and dispersed, it cannot be reassembled to correct an omission in the verdict, including the failure to announce a portion of the verdict agreed upon but not reported.” State v. Black (App. Div. 2005). Therefore, the jury cannot be ordered to return and announce which count it had a verdict on and it would be mere speculation for us to determine which count the jury could not reach a unanimous decision on.
Bound by Salter, we are constrained to find that double jeopardy precludes retrial, and the indictment must be dismissed. If we were to reach any other result, defendant would face re-prosecution for a crime of which he might have been acquitted. The Constitution is not satisfied by speculation. The State cannot retry defendant unless it can demonstrate, with certainty, that the jury did not acquit him of either offense. That demonstration is impossible here.
