Published on:

Court Discusses Dual Sovereignties Doctrine


In April, 1973, as a result of a joint major Federal-State narcotics investigation, an indictment was filed against defendants #1, 2 &3, along with 10 other large-scale heroin merchants, for conspiracy to violate Federal drug laws. To support the conspiracy count, covering a period from May, 1971 until the filing of the indictment, 10 particular incidents, including meetings and drug deliveries, were specified as overt acts. A number of substantive drug crimes of heroin possession were also charged.

A New York Criminal Lawyer said that, the instant appeals arise out of a separate concurrent State prosecution in which the three defendants were charged with sale and heroin possession of dangerous drugs. The indictment states that on each of January 8, 12, and 22, 1973, defendants #1,2 &3 possessed and sold over 16 ounces of heroin. These sales had neither been specified as overt acts of the Federal conspiracy nor had they been the subject of the substantive counts in that indictment.

The Federal charges were disposed of first. Defendants 1 & 3 pleaded guilty, among other counts, to conspiracy. Defendant #2,, on the other hand, went to trial and was found guilty on all counts charged. The evidence at that trial although not mentioned in the indictment included testimony concerning the three January drug sales that are the subject of the State prosecution. All three defendants received substantial Federal sentences.

An NYC Criminal Lawyer said that, relying on the double jeopardy provisions of CPL 40.20, Defendants $1, 2 &3 then moved to dismiss the State indictments. Following denial of their motions, each pleaded guilty in State court to selling a dangerous drug in the second degree (Penal Law, former ยง 220.40). The instant appeals are from the orders of the Appellate Division affirming the convictions.

The issue in this case is whether prosecution of a substantive offense that could have been alleged and proved in support of a prior prosecution for conspiracy violates the CPL 40.20 (subd. 2) prohibition against separate prosecution of offenses arising out of the same “criminal transaction”.

The Court said that, under CPL 40.20, not only is the “dual sovereignties” doctrine ignored, but double jeopardy protection is extended, generally, to offenses arising out of a common event. Unless, one of the enumerated exceptions is made out, a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction (CPL 40.20, subd. 2). Restated, absent the statutory exceptions, no matter the numb of statutory offenses technically violated, or the number of jurisdictions involved, an accused is not to suffer repeated prosecution for the same general conduct.

Hence, the initial inquiry is whether a later prosecution of a defendant and a prior prosecution are based upon “the same act or criminal transaction”. CPL 40.10 (subd. 2) defines “criminal transaction” as “conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.”

A determination that only one criminal transaction is at issue, however, does not automatically bar a second prosecution. Six exceptions qualify the general proscription. No contention is made that any but the first is relevant to these appeals. Under the paragraph (a) exception, separate prosecutions are permissible where “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.”

These CPL provisions were recently considered in. There, under similar circumstances, petitioners successfully raised their prior Federal drug conspiracy prosecution to prohibit a later State prosecution for drug possession. The court in Abraham first rejected the argument that the two offenses, conspiracy and possession, did not arise out of a single “criminal transaction”. Tracking the statutory definition of “criminal transaction”, the court reasoned that the conduct constituting the possessory crime and the conspiracy was “so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture”.

The People in Abraham then sought to invoke the first exception to the statutory bar, namely, that the elements of the two offenses are “substantially different” and the acts constituting each are “in the main clearly distinguishable. The court rejected that argument as well. It looked both to the Federal indictment, which set forth 18 overt acts alleged to have been committed in furtherance of the conspiracy, including the possession at issue in the State prosecution, and to the evidence adduced at the conspiracy trial. The “same possession of the same drugs”, the court reasoned, “was among the acts charged and proved and for which a conviction was had”.

At the heart of the four instant appeals, therefore, is whether the Abraham case or its rationale is distinguishable.

With respect to defendants #1, 2 & 3, the People rely on the absence from the Federal indictment of the sales for which the State is prosecuting defendants. Whether the sales and the conspiracy arise out of a single “criminal transaction”, it is urged, depends upon the acts alleged in furtherance of the Federal conspiracy charge.

The Court held that, appellants’ prosecution is barred by New York’s statute. The statute was applied to bar a State prosecution for possession of dangerous drugs, the identical possession having been alleged and proved as an overt act in a prior Federal conspiracy prosecution. So, too, where the substantive drug crime was not, but could have been, alleged and proved in the prior Federal conspiracy prosecution, subsequent State prosecution offends the statutory mandate. The Abraham rationale is ignored by distinctions dependent upon which overt acts, if any, are specified in the Federal conspiracy indictment or whether a plea of guilty, as opposed to a trial, disposed of the Federal conspiracy charge. Nor do such distinctions comport with logic or the present legislative notion of fair play.

Consequently, in each of the four cases there should be a reversal, the indictments in the three criminal actions should be dismissed, and prosecution of the remaining counts in the indictment to which the proceeding under CPLR article 78 is addressed should be prohibited.

Accordingly, with respect to defendants #1, 2 & 3, the orders of the Appellate Division should be reversed and the indictments dismissed. With respect to Lisznyia, the judgment, insofar as appealed from, should also be reversed, without costs, and judgment granted in favor of petitioner prohibiting prosecution of the remaining counts of the indictment.

As a general rule, a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction. If you are facing two charges or convictions for the same act or criminal transaction by virtue of sale or heroin possession, sex crimes or theft, you need to seek the representation of a Bronx Drug Crime Attorney. At Stephen Bilkis and Associates, our Bronx Criminal Attorney can help you in order to protect your legal rights. Call us, for free legal advice. We will be glad to help you.

Contact Information