On appeal from the Superior Court, Law Division, Cumberland County.
Matthews, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.
[194 NJSuper Page 363] Defendant appeals by leave granted (R. 2:2-4) from an order denying his motion to dismiss the indictment. He urges that the prosecution is barred because he has already been tried and acquitted of the same or similar charges.
In October 1981, defendant commenced selling advertising to local merchants in Cumberland, Salem, Camden and Atlantic Counties. His plan was to sell advertising space on sheets which included coupons from an "anchor advertiser," who would distribute most of the approximately 20 to 25 thousand handbills to be printed. A number of sales were made, usually at $260 each. The merchants were told that the brochures would be delivered by January 15, 1982; that deadline passed and a later date was fixed. When that date passed, some merchants complained and a State Police investigation was commenced.
Four indictments were returned in Salem County charging defendant with a total of six counts of theft (N.J.S.A. 2C:20-4; N.J.S.A. 2C:20-9) from named merchants on November 12, 1981 and January 7, 1982. The present indictment, returned in Cumberland County, charges defendant in 76 counts with similar thefts from other named merchants between October 30, 1981 and February 18, 1982.
Defendant was apparently arrested in August 1982 and committed to the Salem County Jail awaiting trial. By letter dated November 9, 1982 he addressed the following request to the Cumberland County Prosecutor:
I beg of you to exercise the power of your office and transfer all matters concerning me before you to the Salem County jurisdiction so everything can be handled at one time in one trial.
The record does not indicate any response to that request.
Defendant was tried on the Salem County indictments in three successive trials between April and July 1983. He was acquitted in the first two trials, but in the third he was convicted of one count of theft; that conviction, we are told, is presently on appeal. Defendant then moved to dismiss the Cumberland County indictment on grounds that he had been prosecuted "for a violation of the same provision of the statutes based upon the same facts," and that the former prosecution
"bars the present prosecution." He now appeals from the denial of that motion.
N.J.S.A. 2C:1-8(b) directs that
The State does not dispute that the Cumberland County offenses were known "to the appropriate prosecuting officer" at the time of the commencement of the first Salem County trial, that all the offenses arise from "the same episode," or that they were "within the jurisdiction . . . of a single court." The State argues only that N.J.S.A. 2C:1-8(b) is not a bar to the Cumberland County prosecution because "proper venue for the Salem County charges was not in the Cumberland ...