On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 09-02-743 and 09-06-2256.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Espinosa.
Defendant entered a guilty plea to one count of a four- count indictment, No. 09-02-743, pursuant to a plea agreement on June 1, 2009. The count charged that he distributed cocaine on June 24, 2008 within 1000 feet of a school, N.J.S.A. 2C:35-7, a third-degree offense.
On June 16, 2009, the grand jury returned a second indictment, No. 09-06-2256, which charged defendant in two counts. Count four charged defendant and two others with conspiracy to distribute cocaine "[o]n or about the 4th day of June, 2008," in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35- 5(b)(3). Count five charged defendant and another with conspiracy to distribute cocaine "[o]n various dates between May 19, 2008 and June 4, 2008[.]"
Defendant filed a motion to dismiss Indictment No. 09-06-2256 on the grounds that the rules of joinder and fundamental fairness prohibited multiple indictments based on the same set of events. The motion judge denied the motion and set forth his reasons in a written opinion. In this appeal, defendant presents the following arguments:
THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS INDICTMENT NO. 09-06-2256 BECAUSE NEW JERSEY'S RULES OF JOINDER REQUIRE CHARGES ARISING FROM A SINGLE EPISODE OF CRIMINAL CONDUCT TO BE BROUGHT TOGETHER.
INDICTMENT NO. 09-06-2256 MUST BE DISMISSED OUT OF FUNDAMENTAL FAIRNESS TO THE DEFENDANT.
We are satisfied that these arguments lack sufficient merit to warrant discussion in a written opinion beyond the following brief comments. R. 2:11-3(e)(2). To support his argument that the second indictment should have been dismissed, defendant relies upon the mandatory joinder rule, R. 3:15-1(b) and N.J.S.A. 2C:1-8(b). Rule 3:15-1(b) states:
Except as provided by R. 3:15-2(b), a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the ...