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State v. Cummings

Decided: February 27, 1973.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH CUMMINGS, DEFENDANT-APPELLANT



Carton, Mintz and Horn. The opinion of the court was delivered by Horn, J.s.c., Temporarily Assigned.

Horn

Defendant appeals from a County Court judgment of conviction of a disorderly persons charge of possession of prescription legend drugs, in violation of N.J.S.A. 2A:170-77.8. On December 12, 1969 defendant was arrested and on the same day complaints were filed against him in Bayonne Municipal Court charging him with open lewdness (Complaint 5370) and with possession of prescription legend drugs (Complaint 5369).

Both complaints were referred to the county grand jury, the possession charge having been sent to the grand jury because it involved the same transaction, or was related to the indictable open lewdness offense. On February 8, 1971 the grand jury returned a "no bill" on the open lewdness charge.

Thereafter, on February 9, 1971 the Hudson County prosecutor notified the clerk of the Bayonne Municipal Court of the "no bill" and stated by letter that the complaint against defendant on the possession charge was still pending.

Rather than to proceed on the remanded complaint, the Bayonne authorities, on July 22, 1971, filed a second complaint (68690) which was substantially identical with the first one in that it charged defendant with possession of seconal, contrary to said statute, on the same date mentioned in the first complaint. The second complaint was filed more than one year after the discovery and commission of the offense.

As a result of the trial on the second complaint held January 26, February 17 and March 9, 1972, the municipal court judge found defendant guilty of possession of the seconal tablets and dismissed the complaint insofar as it charged use of same.

This conviction was appealed to the Hudson County Court, which conducted a trial de novo on July 14, 1972 and affirmed the conviction.

Defendant asserts three reasons for reversal: first, that the prosecution was barred by the statute of limitations; second, that the chain of possession of the tablets was not sufficiently established so as to permit them into evidence, and third, that the verdict was against the weight of the evidence.

N.J.S.A. 2A:169-10 provides that prosecutions under the Disorderly Persons Act must be brought within one year of the discovery or commission of the offense.

The original complaint was timely filed. It was never dismissed or otherwise finally disposed of. Prosecution of defendant on the same charge could have thus proceeded upon the original complaint. There was no need for a new complaint to be filed.

Since defendant can point to no real prejudice accruing to him by reason of the prosecution on the second complaint, the defense based on the statute of limitations is purely technical because of the filing date.

Although no case directly on point from this State has been referred to us, the theory of superseding prosecutions in this State has been found acceptable, although no statute of limitations was involved. Accordingly, it was held that a superseding indictment did not vitiate an earlier indictment, so that a prosecution could be brought under the first. State v. Janiec , 20 N.J. Super. 471 (App. Div. 1952), rev'd on other grounds, 11 N.J. 397 (1953). In Janiec , as here ...


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