Harth, J.c.c., Temporarily Assigned.
Defendant brings a motion to dismiss Indictment No. 1065-74, which charges him and a codefendant with possession of a controlled dangerous substance, to wit, cocaine, on April 23, 1974.
On March 20 and again on March 21, 1974 defendant distributed cocaine to Lewis Gonzales from his apartment located in Newark, New Jersey. He was arrested for distribution on May 2 and a two-count indictment was returned on May 22, 1974. Found guilty by a jury on October 11, he received a custodial sentence on November 20, 1974.
On January 7, 1975 defendant was indicted for possessing cocaine in the same apartment on April 23, 1974. He seeks
to dismiss the indictment, contending that since the possession offense was fully known to the prosecutor prior to the return of the indictment and trial for distribution, he should have presented all the charges in one indictment. Citing the recent case of State v. Gregory, 66 N.J. 510 (1975), defendant claims that "such withholding and later prosecution smacks of harassment and oppression and should be barred."
Additionally, he claims that the indictment should be dismissed because the cocaine was seized during the execution of a search warrant, and the affidavit in support of the warrant sets forth the March sales which were the subject of his conviction. He alleges that this constitutes double jeopardy.
A review of the facts in State v. Gregory and the instant case reveal significant differences.
On December 27, 1971 Gregory sold heroin to an undercover officer who saw him go into a bathroom and remove a glassine envelope from a stack of similar envelopes in a medicine cabinet. Upon leaving the apartment the purchaser notified other Newark police officers who returned immediately and seized the remaining envelopes. On April 20, 1972 Gregory was indicted for the single sale to the officer. He was convicted on October 21, 1972 and sentenced on January 3, 1973. On December 6, 1972 the grand jury returned two indictments against Gregory, one for possession and the other for possession with intent to distribute.
In the present case the series of events leading up to the indictment now under review are as follows. A search warrant was executed on April 23, 1974 to search defendant's premises at 15 Chestnut Street, Newark, New Jersey. The affidavit in support of the warrant recounted the March sales that were the subject of the defendant's conviction and, in addition, alleged an April 9, 1974 sale of cocaine from the same premises. A search of the premises disclosed the presence of cocaine, and defendant was placed under arrest for possession.
Thus, unlike the Gregory case, this defendant was the subject of separate arrests and separate bail for offenses that
occurred on different days. The possession indictment charges a date over a month after the sales were made. Though the prosecutor is unable to offer an explanation as to the delay in obtaining the latter indictment, there ...