On appeal from Superior Court, Law Division, Passaic County.
O'Brien, Simpson and Scalera. The opinion of the court was delivered by Simpson, J.A.D.
[206 NJSuper Page 552] This is an appeal by the State of a May 20, 1985 order dismissing Passaic County Indictment 1143-84 that was handed up by the Grand Jury on December 7, 1984 and charged defendant with three counts of the third-degree crime of theft by receiving stolen motor vehicles (a 1981 Mercury Capri, a 1979 Ford Mustang, and a 1980 Dodge Omni) in April 1984, in violation of N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2b.(2)(b). No timely brief was filed by defendant prior to an October 1, 1985 order precluding filing, but the State's appendix to its brief includes defendant's brief and materials submitted to the trial judge on his motion to dismiss the indictment. In his oral decision of May 3, 1985 the judge concluded that a separate trial on this indictment was precluded by a prior trial that commenced on January 13, 1985 on Indictment 1221-83 in view of the mandatory joinder provisions of R. 3:15-1(b) and N.J.S.A.
2C:1-8b. We disagree and reverse and remand for reinstatement of Indictment 1143-84 and further appropriate proceedings.
Indictment 1221-83 contained 17 counts and multiple defendants. Giovanni Muscia was named in 15 of these counts and was convicted of the crimes alleged in 8 of the 15. He was found guilty of five third-degree crimes of theft by receiving stolen vehicles (a 1982 Pontiac Firebird, a 1978 Porsche, a 1981 Chevrolet Camaro, a 1979 Pontiac Firebird and a 1977 Cadillac Coupe de Ville) in violation of the same statutes cited in Indictment 1143-84, plus three counts of the third-degree crime of defrauding by destroying, removing or impairing the verity of vehicle identification numbers contrary to N.J.S.A. 2C:28-7 and 39:10-7 (as to the 1978 Porsche, the 1977 Cadillac Coupe de Ville, and another Chevrolet Camaro Z-28). He received two consecutive four year sentences of imprisonment and six concurrent four year terms. All counts for which defendant was convicted related to crimes occurring between September 9-16, 1983, and Indictment 1221-83 was returned by the Grand Jury on October 20, 1983.
Another Indictment, 798-84 was returned on September 4, 1984 and charged defendant with violation of N.J.S.A. 2C:17-6(a) or (b) and receiving stolen vehicles crimes between June 1983 and January 9, 1984 with respect to 1973 and/or 1978 Datsun 240 Z and 280 Z automobiles. This indictment was dismissed by consent order dated March 29, 1985.
The court rule and statute in question are quite similar and provide, in pertinent part that:
The underlined words indicate the slightly different terminology of R. 3:15-1(b) and N.J.S.A. 2C:1-8b, but there is no substantive difference as applicable to the operative facts of the present case. The trial judge cited State v. Gregory, 66 N.J. 510 (1975), and concluded that dismissal of Indictment 1143-84 was required by both the court rule and the statute because "[t]he offenses of Indictment Number 1143-84 . . . were known to the prosecution at the time of the trial of [Indictment Number 1221-83]." The judge recognized that it was "difficult" [and we conclude it was impossible] for the prosecutor to know of the Indictment 1143-84 offenses which occurred in April 1984 at the time of Indictment 1221-83 on October 20, 1983 -- but it is obvious that the prosecutor knew of the April 1984 offenses charged in Indictment 1143-84 at the time of trial of 1221-83 in January 1985 because Indictment 1143-84 was returned by the Grand Jury on December 7, 1984. The crucial inquiry, therefore, is whether the offenses are based on the same "conduct" or "criminal episode" or "transaction."
It is clear that similar type crimes were involved at all times, but it is also clear that the same conduct, criminal episode or transaction was not involved. The 1984 crimes came to light in an August 1984 investigation that included a statement by a Martin Van Riper that suggested a possibility that law enforcement officers were involved in illegal activities. A consensual wiretap of conversations ...