For reversal -- Chief Justice Hughes, Justices Jacobs, Mountain, Sullivan, Pashman and Clifford and Judge Collester. For affirmance -- None. The opinion of the Court was delivered by Jacobs, J.
On December 27, 1971 an undercover officer of the Newark Police Department visited a Newark apartment and purchased a small quantity of heroin which was delivered to him in a single glassine envelope by the defendant. He saw the defendant go into the apartment's bathroom and remove the glassine envelope from a stack of similar envelopes in the medicine cabinet. After his purchase he left the apartment and within moments notified other Newark police officers who returned immediately with him to the apartment and seized the remaining envelopes. They contained enough to yield between four and five hundred decks of heroin.
On April 20, 1972 the defendant was indicted for the single sale to the undercover officer. He was not indicted at that time for possession or possession with intent to distribute the large quantity of heroin taken from the medicine cabinet. Whether this was a deliberate or inadvertent withholding by the Prosecutor does not appear from the record and at oral argument the Assistant Prosecutor said that he was not in
any position to give an explanation. In any event, trial on the indictment for the sale proceeded in regular course and the defendant was convicted. His conviction took place on October 31, 1972 and on January 3, 1973 he was sentenced to State Prison. He appealed to the Appellate Division which affirmed his conviction and we denied certification. 65 N.J. 276 (1974).
On December 6, 1972 the Essex County Grand Jury returned two indictments against the defendant, one for possession and the other for possession with intent to distribute the heroin seized on December 27, 1971. At the trial on these indictments the trial judge displayed his wonderment about the State's procedure and expressed the thought that, in fairness to the defendant, all of the charges should have been joined for prosecution in a single proceeding. Nevertheless he permitted the prosecution to continue though he carefully excluded evidence relating to the sale and confined the trial to the heroin seized from the cabinet. On May 24, 1973 verdicts of guilty were returned on both indictments. On June 26, 1973 the defendant received concurrent State prison sentences to run consecutively to the sentence imposed on January 3, 1973 for the sale.
The defendant appealed to the Appellate Division which, with the State's consent, set aside the conviction for possession. However it affirmed the conviction for possession with intent to distribute. In its per curiam it found no meritorious basis for the defendant's contention that the second prosecution was barred under principles of double jeopardy and collateral estoppel; it also found that the defendant was procedurally precluded from advancing these principles since he had not made an appropriate objection before trial as required by R. 3:10-2 and R. 3:23-8(d). See State v. Currie, 41 N.J. 531, 535 (1964); State v. Bell, 55 N.J. 239, 248 (1970); State v. Ebron, 61 N.J. 207, 216-218 (1972). Judge Halpern concurred specially on the ground that the defendant was procedurally barred. While he considered that double jeopardy and collateral estoppel were inapplicable, he
expressed the view that the events which took place on December 27, 1971 should have been classified as a "single criminal episode" and that the charges emanating therefrom should, in all fairness, have been joined in a single prosecution. In the defendant's petition for certification, which we duly granted (66 N.J. 308 (1974)), he urged without more that Judge Halpern's view be accepted and that the conviction for possession with intent to distribute be vacated. See State v. Cormier, 46 N.J. 494, 504 (1966); State v. Bell, supra, 55 N.J. at 243; Model Penal Code § 1.07(2) (Proposed Official Draft 1962); Final Report of the New Jersey Criminal Law Revision Commission, New Jersey Penal Code § 2C:1-7(b) (1971); cf. ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance § 1.3 (Approved Draft 1968); Final Report of the National Commission on Reform of Federal Criminal Laws, Proposed New Federal Criminal Code § 703(2) (1971); 8 Moore's Federal Practice Para. 8.07 (2 d ed. 1974).
The common law was properly concerned with the protection of the defendant from governmental harassment and oppression by multiple prosecution for the same wrongful conduct. It embodied the principle cherished by all free men that no person may be twice put in jeopardy for the same offense, a principle which fortunately continues undiminished in force and is firmly embodied in our federal constitution. See Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957); Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2 d 469 (1970). Though the language in our State constitution is somewhat more limited (State v. Roller, 29 N.J. 339, 344 (1959)), our cases have broadly embraced the common law principle (State v. Labato, 7 N.J. 137, 143 (1951)) and we of course recognize that the federal constitution's specific guarantee against double jeopardy, along with its collateral estoppel ingredient, is fully applicable in our State. See Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2 d 707 (1969); Ashe v. Swenson,
supra, 397 U.S. at 445, 90 S. Ct. at 1195, 25 L. Ed. 2 d at 476.
Though no one currently questions the great worth of the federal constitutional safeguard against double jeopardy, difficulties arise in determining just when multiple prosecution concerns the "same offense" within its contemplation. Several offense-defining tests (Comment, "Twice in Jeopardy," 75 Yale L.J. 262, 269 (1965)) have been formulated in the cases but none has proved to be entirely satisfactory. See State v. Currie, supra, 41 N.J. at 538; State v. Roller, supra, 29 N.J. at 346; cf. State v. Thomas, 61 N.J. 314, 319 (1972); see also Caraway, "Pervasive Multiple Offense Problems -- A Policy Analysis," 1971 Utah L. Rev. 105; Comment, "The Double Jeopardy Clause: Refining the Constitutional Proscription Against Successive Criminal Prosecutions," 19 U.C.L.A.L. Rev. 804 (1972). In State v. Hoag, 21 N.J. 496 (1956), aff'd, 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2 d 913 (1958), the majority opinion noted that the test then most widely employed in New Jersey was the "same evidence" test; under this, ...