On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Matthews, Antell and Francis. The opinion of the court was delivered by Matthews, P.J.A.D.
On March 5, 1979 the state grand jury returned Indictment SGJ-52-78-2 which charged defendant Louis Di Ventura, a/k/a Lou Ventura, and codefendant George Flynn, along with an unindicted coconspirator, with conspiracy to burn and set fire to a restaurant, "Lou Ventura's Hideout," belonging to Louis Di Ventura Enterprises, Inc., and conspiracy to burn and set fire to the same restaurant with intent to defraud the insurers thereof, in violation of N.J.S.A. 2A:89-2, N.J.S.A. 2A:89-3, N.J.S.A. 2A:98-1 and N.J.S.A. 2A:98-2 (count 1); inciting and soliciting another to commit arson, in violation of N.J.S.A. 2A:85-1 (count 2); arson, in violation of N.J.S.A. 2A:89-2 (count 3), and arson with intent to defraud, in violation of N.J.S.A. 2A:89-3 (count 4).
Thereafter, on March 13, 1979 the federal grand jury for the District of New Jersey returned Criminal Indictment 79-89 which charged defendant Di Ventura, individually, Louis Di Ventura Enterprises, Inc., and codefendant George Flynn with conspiracy to commit mail fraud and eight individual counts of mail fraud, all in violation of 18 U.S.C.A. §§ 1341, 1342.
Following the declaration of two mistrials, defendant was tried on the federal charges before Judge Brotman and a jury, commencing on January 5, 1981. On January 14, 1981 the jury returned a verdict of not guilty on all counts. A judgment of acquittal was entered by Judge Brotman on January 15, 1981.
On January 16, 1981 defendant filed a Notice of Motion Barring Prosecution of the State Indictment Pursuant to N.J.S.A. 2C:1-11. Defendant claimed that the conduct alleged to be criminal in both the state and the federal indictments "was the arranging by defendant of the destruction of his restaurant by arson so that he could collect the insurance proceeds." He claimed that both indictments made reference to the same illegal burning of his restaurant which took place on the same
date and time and involved the same insurance. He also pointed to the fact that the witness lists for both the state and federal prosecutions were identical. He contended that the state offense (arson) was not intended to prevent a more serious harm or evil than the federal offense, while noting that proof of the use of the mails, "a fact which was not put at issue by the defense," constituted the only additional fact required to prove the federal charges.
After a hearing on April 15, 1981 the Law Division judge, in a formal letter opinion, dismissed the state indictment, noting that "the two different indictments do not require proof of a fact not required by the other."
The State argues that the indictment filed by the state grand jury which charged defendant with conspiracy to commit arson, willful solicitation to commit arson, arson of a restaurant and arson with intent to defraud an insurance company should not have been summarily dismissed pursuant to the provisions of N.J.S.A. 2C:1-11, because of defendant's acquittal in federal court on charges of fraudulently using the United States mails to defraud and obtain money from an insurance company by committing arson on an insured building and thereafter submitting a false claim.*fn1
N.J.S.A. 2C:1-11 provides, in pertinent part:
When conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States, a prosecution in the ...