On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Brody, Stern and Keefe. The opinion of the court was delivered by Stern, J.A.D.
After her motion to dismiss the indictment was denied, defendant pled guilty to an attempt to acquire a controlled dangerous substance by fraud, N.J.S.A. 2C:5-1 and 2C:35-13, preserving her claim that the criminal prosecution was barred on double jeopardy grounds. R. 3:9-3(c). The indictment, filed on August 8, 1989, was returned after defendant's prior guilty plea in the Spring Lake Heights Municipal Court to a complaint which charged that on September 24, 1988 defendant committed a "theft upon Dr. Thomas Leonhardt by knowingly depriving him of one prescription note sheet, and using that note sheet in a fraudulent manner," in violation of N.J.S.A. 2C:20-3.*fn1 The municipal court guilty plea was entered on December 14, 1988. Defendant was sentenced that day to probation for one year and to pay a $50 fine and $25 in costs. She received probation for two years and was ordered to pay DEDR and VCCB penalties and a lab fee on the criminal conviction which gives rise to this appeal.
The indictment alleged that on October 24, 1988 defendant attempted "to acquire or obtain possession of a controlled dangerous substance, namely Percocet, by misrepresentation, fraud, deception or subterfuge, contrary to the provisions of N.J.S. 2C:5-1 and N.J.S. 2C:35-13." In giving a factual basis for her guilty plea
to the indictment in the Law Division, defendant admitted taking a "prescription sheet from [her] doctor" and that she "wrote on it and . . . tried to obtain drugs that way."
On this appeal defendant argues:
POINT I PROSECUTION OF THE INDICTMENT IS BARRED BY THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 11 OF THE NEW JERSEY CONSTITUTION.
Particularly since Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (1970), courts have recognized that "the defense of double jeopardy is available to a defendant, even though the first trial was in a municipal court, as is here the case." State v. Ebron, 61 N.J. 207, 215, 294 A.2d 1 (1972). See also State v. DeLuca, 108 N.J. 98, 527 A.2d 1355 (1987), cert. denied 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987); State v. Dively, 92 N.J. 573, 458 A.2d 502 (1983). Defendant argues that the municipal court Disposition in these circumstances bars prosecution of the subsequent indictment by virtue of three United States Supreme Court decisions. First she claims that as "[t]he fraud that she committed was presenting the prescription form with the forged signature of the doctor to the drug store," the indictable prosecution for fraud is barred by Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Defendant claims that the prosecution is also barred by Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980), and Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), because both prosecutions involve the same "conduct." Defendant refers to these cases in support of her claim that the indictable prosecution is barred because the federal and state constitutions prohibit placing a defendant twice in "jeopardy" for "the same offense." U.S.C.A. Const. amend. V; N.J. Const. art I, para. 11.*fn2
Under Blockburger, "the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." Blockburger, supra, 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309. In Vitale, the Court interpreted Blockburger by stating:
We recognized that the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial. Thus we stated that if "'each statute requires proof of an additional fact which the other does not,' Morey v. Commonwealth, 108 ...