On appeal from Superior Court, Law Division, Somerset County.
J.h. Coleman, Ashbey and Landau. Opinion of the court was delivered by Landau, J.A.D.
This appeal which we consider on leave granted to the State challenges the dismissal of an August 1986 State Grand Jury indictment by the Superior Court, Law Division, Somerset County, following motions by defendants-respondents Charles and Jack Colbert which invoked principles of mandatory joinder (N.J.S.A. 2C:1-8b; R. 3:15-1(b)), double jeopardy and impermissible fractionalization of offenses. The defendants had previously been tried and convicted in a January 1986 trial on an Essex County indictment returned in October 1984.
The 31-count 1984 indictment against Charles Colbert, Jack Colbert and Signo Trading Co. alleged a conspiracy and overt acts "on or about or before the 11th day of April, 1983," the date of a massive Newark warehouse fire which resulted in discovery by law enforcement and environmental agencies that
these defendants had been transporting and storing hazardous waste without authorization from the Department of Environmental Protection. The conspiracy alleged in that indictment was:
1. To knowingly and unlawfully store and/or transport hazardous waste without authorization from the Department of Environmental Protection, in violation of N.J.S. 13:1E-9g(3).
2. To recklessly create a risk of widespread injury or damage, in violation of N.J.S. 2C:17-2c.
Various specific overt acts of knowing and unlawful storage and transportation of such wastes (N.J.S.A. 13:1E-9g(3)) and reckless storage and transportation of such wastes (N.J.S.A. 2C:17-2c) were set forth. As above noted, none of the charges involved post-April 11, 1983 actions.
Trial on this indictment commenced on January 13, 1986 and ended on February 22, 1986, with the conviction of Charles Colbert on 10 counts including the conspiracy. Jack Colbert was convicted on 14 counts including conspiracy.
On January 16, 1986, an investigative State Grand Jury convened for the expressed purpose of investigating the possibility of further criminal activities by defendants following the 1983 fire.
On August 14, 1986 the State Grand Jury returned the indictment which is the subject of this appeal against the respondents Colbert and several companies which they controlled. The 1986 indictment took note of the pre-April 1983 acts, designating them as a separate "episode." It alleged a conspiracy described as follows:
[C]ommencing on or about April 12, 1983, on an exact date unknown to the Grand Jurors, and continuously thereafter, until in or about July, 1986, on an exact date unknown to the Grand Jurors, at the Town of Somerville, in the County of Somerset, at the City of Trenton, in the County of Mercer, at the City of Newark, in the County of Essex, at the City of Elizabeth, in the County of Union, at the City of Paterson, in the County of Passaic, at the Town of Saddlebrook, in the County of Bergen, at the Town of Edgewater, in the County of Bergen, at the Town of Mount Vernon, in the State of New York, and at the City ...