The indictment charges against defendant with others with various degrees of possession of a dangerous drug are as follows:
Count 1: 1st degree–possession of 16 ounces and more of heroin;
Count 2: 4th degree–possession of a narcotic drug (heroin) with intent to sell; and
Count 3: 6th degree–possession of a dangerous drug (cocaine).
Each possession is alleged to have occurred on or about March 15, 1973.
Defendant and several others were also prosecuted under a nine-count Federal indictment, in which defendant was charged as follows:
Counts 1 and 2: Possession with intent to distribute and distribution of one kilogram of heroin on or about January 18, 1973;
Count 7: Attempt to distribute half a kilogram of heroin on or about March 15, 1973; and
Count 9: Conspiracy to distribute and to possess with intent to distribute quantities of heroin, with overt act No. 10 alleging that on or about March 15, 1973, Defendant was carrying a paper bag containing approximately half a kilogram of heroin.
Defendant was tried and convicted in the United States District Court, Eastern District of New York. He now seeks by this application to prevent the State from prosecuting him on its indictment, alleging that he would thereby be twice placed in jeopardy for the same offense.
The court partially granted the motion of the defendant. Accordingly, the CPL provides as follows:
‘ § 40.30 Previous prosecution; what constitutes
‘1. * * * a person ‘is prosecuted’ for an offense, within * * * section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, when the action * * *
‘(b) Proceeds to the trial stage and a witness is sworn * * *.’
‘ § 40.20 Previous prosecution; when a bar to second prosecution
‘1. A person may not be twice prosecuted for the same offense.
[43 A.D.2d 7] ‘2. A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:
‘(a) 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
‘(b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil; or
‘(c) One of such offenses consists of criminal possession of contraband matter and the other offense is one involving the use of such contraband matter, other than a sale thereof * * *.’
It seems clear that under paragraph (c) of subdivision 2 of CPL 40.20 the Federal prosecution of defendant bars his prosecution under the State indictment as to counts 1 and 2. Count 7 of the Federal indictment alleged an attempt to distribute heroin and count 9 thereof, which alleged a conspiracy to distribute and to possess heroin with intent to distribute it, asserted possession on March 15, 1973 as an overt act. Subdivision 2 of CPL 40.20 provides that a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction, unless, as stated in paragraph (c) thereof, one of the offenses is criminal possession of contraband matter and the other involves the use of such contraband Other than a sale thereof. In an effort to overcome the effect of that statute the District Attorney argues that the Federal indictment does not charge possession or sale, but only an attempt to distribute and a conspiracy to possess with intent to distribute. However, the Penal Law (§ 220.00) defines ‘sell’ as ‘to sell, exchange, Give or dispose of to another, or to offer or agree to do the same’ (emphasis supplied). This extremely broad definition would include ‘distribution’ or the attempt to distribute (count 7 of the Federal indictment).
The State and Federal prosecutors admittedly discussed their respective indictments and attempted to set defendant up to be prosecuted by both authorities. In the light of the provisions of subdivision 2 of CPL 40.20, 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 possession of heroin with intent to sell. These charges are barred by the seventh count of the Federal indictment, which charges an unlawful attempt to distribute heroin. The date involved in all three counts is March 15, 1973. Even if the ninth Federal count (conspiracy) be deemed different (although actually alleging possession on March 15, 1973), the seventh count is sufficient, under section 40.20 (subd. 2, par. (c)), to bar prosecution of defendant in Kings County on the heroin charges.
The third count of the State indictment charges criminal possession of a dangerous drug in the sixth degree, in that defendant unlawfully possessed Cocaine on March 15, 1973. * Since none of the counts in the Federal indictment deals with cocaine, the trial of defendant on that count of the Kings County indictment would not subject him to double jeopardy.
This application should therefore be granted to the extent of prohibiting respondents from proceeding to try the petitioner on counts 1 and 2 of the Kings County indictment and otherwise dismissed on the merits, without costs.
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