[125 NJSuper Page 458] This is a motion brought by defendants Steven L. Ableman, Harris D. LeSavoy and
Stephen H. Miller to dismiss Indictment No. 498-72 returned by the Middlesex County grand jury, charging them in four counts with violations of the Controlled Dangerous Substance Act, N.J.S.A. 24:21-1 et seq. (hereinafter the "act").
They contend that N.J.S.A. 24:21-25 bars their prosecution in New Jersey by reason of the disposition in the United States District Court for the Southern District of New York of federal Indictment No. 73 CR 297.
It is stipulated that both indictments resulted from the same federal narcotics investigation; that the substance seized in New Jersey was 50 pounds of hashish, and that it was part of the same substance for which defendants were charged in the federal indictment.
The federal indictment is in two counts. The first charges defendants with a conspiracy to violate sections 812, 841(a)(1) and 841(b)(1)(B) of Title 21, United States Code. It alleges that as part of that conspiracy defendants "unlawfully, intentionally and knowingly would distribute and possess with intent to distribute Schedule I Controlled Substances." It further alleges certain overt acts committed by them in the Southern District of New York in furtherance of the conspiracy, one of which alleged that, on or about November 11, 1972, they did possess with intent to distribute approximately 1,500 pounds of what is admitted to be hashish.
The second count alleges that defendants, in the Southern District of New York, did unlawfully possess with intent to distribute approximately 1,099 pounds of hashish.
The New Jersey indictment is in four counts. The first alleges that between September 1, 1972 and November 12, 1972, both inclusive, in the Township of Piscataway, defendants did unlawfully possess hashish, a controlled dangerous substance, contrary to N.J.S.A. 24:21-20, subd. a; the second count charges defendants with unlawfully possessing that hashish with intent to distribute; the third count charges them with having unlawfully distributed that
hashish to Gerry Hochman, in violation of N.J.S.A. 24:21-19(a)(1), and the fourth count alleges a conspiracy to distribute that hashish, and sets forth as an overt act that defendants arranged for and in fact distributed 50 pounds of hashish to Gerry Hochman, a federal undercover agent.
On April 9, 1973 defendant Ableman pleaded guilty to both counts of federal Indictment 73 CR 297. He admitted to participation in the conspiracy, having actual possession of 50 pounds of hashish and constructive possession of the balance. Defendant LeSavoy was found guilty by a jury of both counts of the indictment, and defendant Miller was found guilty by the jury of the first count (conspiracy), and was acquitted of the second count (unlawful possession with intent to distribute the hashish).
Defendants urge that section 25 of the act bars their prosecution on the New Jersey indictment because the offenses alleged therein occurred in the same period and involved the same hashish for which they were ...