Posted On: June 19, 2013 by Stephen Bilkis

Double prosecution for the same offense

A complainant man seeks an order to prevent the justices of the Supreme Court and the district attorney from proceeding to try him on a criminal charge returned against him by the grand jury.

The indictment charges the complainant and another man with various degrees of possession of a dangerous drug. The complainant is charged with first degree of possession of 16 ounces and more of heroin, fourth degree of possession of a narcotic drug with intent to sell and sixth degree of possession of a dangerous drug.

The complainant, the other man and several others were also prosecuted under a nine-count federal charges, in which the complainant was charged with counts one and two of possession with intent to distribute and distribution of one kilogram of heroin, attempt to distribute half a kilogram of heroin and conspiracy to distribute and to possess with intent to distribute quantities of heroin.

The complainant was tried and convicted. But, he seeks to prevent the state from prosecuting him on its indictment, alleging that he would thereby be twice placed in jeopardy for the same offense.

In opposition to the application, the assistant district attorney alleges that his investigation originally involved an alleged shipment of about 200 kilograms of heroin and taps on the telephone of another person indicating a purchase of narcotics. By that reason, he discussed the matter with the federal prosecutor on several occasions and it was agreed between them that the state indictment would be restricted to possession counts, without alleging a conspiracy, and that the federal indictment would be limited to charges of distribution and conspiracy. The district attorney then concludes that, under the conditions of the case, conspiracy and distribution are different crimes from possession.

Based on records, a person may not be twice prosecuted for the same offense. In addition, a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless, the offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other or each of the offenses as defined contains an element which is not an element of the other, and the legal provisions defining such offenses are designed to prevent very different kinds of harm or evil, or one of such offenses consists of criminal possession of illegal imports matter and the other offense is one involving the use of such contraband matter, other than a sale thereof.

The state and federal prosecutors admittedly discussed their respective charges and attempted to set the complainant up to be prosecuted by both authorities. An analysis of the respective counts in both indictments dooms that attempt to failure. The first count of the state indictment alleges possession of more than a pound of heroin and the second count charges of heroin possession with intent to sell. The charges are barred by the seventh count of the federal indictment, which charges an unlawful attempt to distribute the drug. Even though the ninth federal count of conspiracy be deemed different, the seventh count is sufficient.
The third count of the charges of criminal possession of a dangerous drug in the sixth degree, in that the complainant unlawfully possessed cocaine. Given that none of the counts in the federal indictment deals with cocaine, the trial of the man on that count of the county’s indictment would not subject him to double jeopardy. The application therefore be granted to the extent of prohibiting the opponents from proceeding to try the complainant on counts one and two of the county’s indictment and otherwise dismissed on the merits, without costs.

If one of your family members is involved in a drug related crime, you can ask help from the New York City Heroin Attorneys or NYC Drug Crime Lawyer for initial assessment of your case. You can also have the NY Intent to Distribute Attorney at Stephen Bilkis and Associates if you want further legal assistance and representation.