On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Before Judges Shebell, Wallace and Kleiner.
The opinion of the court was delivered by
This appeal requires this court to determine whether criminal conduct utilized to enhance a federal sentence requires a New Jersey court to dismiss an indictment which describes the same criminal conduct.
On January 22, 1992, the Atlantic County grand jury returned two indictments against defendant William A. Walters. Indictment 92-01-0182-A-CP charged defendant as follows: count one, theft by deception, in violation of N.J.S.A. 2C:20-4; count two, unlawful use of a credit card, in violation of N.J.S.A. 2C:21-6h; and count three, theft of a credit card, in violation of N.J.S.A. 2C:21-6c(2). The three counts relate to the use of a credit card in the name of Jeffrey Matulaitis to obtain a $5,000 cash advance from the Trump's Castle Casino on May 16, 1991.
Indictment 92-01-0181-A-CP charged defendant and William Ortiz with a series of criminal acts committed between July 7, 1991 and July 17, 1991, relating to the use of two credit cards in the name of Joseph Flatley at Harrah's Marina Hotel/Casino, Trump's Castle Hotel and Casino and Trump's Taj Mahal Casino Resort. The indictment specifically charged one count of conspiracy, in violation of N.J.S.A. 2C:5-2; four counts of theft by deception, in violation of N.J.S.A. 2C:20-4 and N.J.S.A. 2C:2-6 ; one count of attempted theft by deception, in violation of N.J.S.A. 2C:20-4 and N.J.S.A. 2C:2-6; five counts of unlawful use of a credit card, in violation of N.J.S.A. 2C:21-6d and N.J.S.A. 2C:2-6; and three counts of credit card theft, in violation of N.J.S.A. 2C:21-6c(1) and N.J.S.A. 2C:2-6.
While the Atlantic County indictments were pending trial, defendant was indicted by the federal grand jury in the United States District Court, Eastern District of Pennsylvania, for one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, arising from an overt act which occurred in Pennsylvania on November 13, 1991, involving a theft of United States mail. Defendant proceeded to trial under this indictment and was found guilty on July 15, 1992.
Defendant contended that the presumptive sentence for the crime charged under federal sentencing guidelines was twelve to eighteen months. However, the federal presentence report concluded that defendant's alleged criminal activity in New Jersey, as set forth in the two Atlantic County indictments, was "relevant" to the sentence to be imposed in the federal court, placing defendant in an enhanced sentencing range of thirty to thirty-seven months. On April 2, 1993, the federal court sentenced defendant to a thirty-five month term of imprisonment followed by a three year period of supervised release.
On November 9, 1993, defendant filed a motion to dismiss the two Atlantic County indictments based upon his interpretation of N.J.S.A. 2C:1-11. He contended that further prosecution in New Jersey was barred because his alleged criminal activity had already been punished by his enhanced sentence in the federal court. Defendant's motion was denied.
On January 14, 1994, defendant entered into a plea agreement in Atlantic County. In exchange for a plea of guilty to count one of Indictment No. 92-01-0182-A-CP, charging theft by deception in violation of N.J.S.A. 2C:20-4, the State agreed to dismiss counts two and three of that indictment, to dismiss all counts involving defendant in Indictment No. 92-01-0181-A-CP, and to waive its right to seek an extended term of imprisonment. Defendant's plea was to be entered without any recommendation as to sentence. Additionally, defendant was permitted to specifically preserve his right to appeal the prior denial of his motion to dismiss.
On January 28, 1994, defendant was sentenced to a five year term of imprisonment to be served consecutively to the sentence imposed in federal court. He was ordered to pay $30 to the Violent Crimes Compensation Board.
On appeal, defendant asserts two points of error:
THE TRIAL COURT ERRED IN HOLDING THAT THE STATUTORY BAR TO MULTIPLE PROSECUTIONS UNDER N.J.S.A. 2C:1-11 DID NOT PRECLUDE THE IMPOSITION OF ADDITIONAL PUNISHMENT FOR CRIMINAL CONDUCT THAT WAS PREVIOUSLY PUNISHED IN CONNECTION WITH A FEDERAL PROSECUTION.
THE TRIAL COURT ABUSED ITS DISCRETION IN DISREGARDING FEDERAL LAW AND HOLDING THAT APPELLANT'S SENTENCE OF IMPRISONMENT FOR A STATE OFFENSE WAS TO BE SERVED CONSECUTIVELY TO A SENTENCE IMPOSED BY A FEDERAL COURT FOR THE SAME CRIMINAL CONDUCT.
We now affirm both the decision on defendant's motion to dismiss and the sentence imposed.
N.J.S.A. 2C:1-11, enacted in 1978, states:
When conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States, a prosecution in the District Court of the United States is a bar to a subsequent prosecution in this State under the following circumstances:
a. The first prosecution resulted in an acquittal or in a conviction, or in an improper termination as defined in section 2C:1-9 and the subsequent prosecution is based on the same conduct, unless (1) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil or (2) the offense for which the defendant is subsequently prosecuted is intended to prevent a substantially more serious harm or evil than the offense of which he was formerly convicted or acquitted or (3) the second offense was not consummated when the former trial began; or
b. The former prosecution was terminated, after the information was filed or the indictment found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be ...