September 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HERBERT A. COFER, AKA HERBERT COFIER, HERBERT A. COFIER, ARTHUR DICKERSON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2012
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 first trial and are within the jurisdiction and venue of a single court.
This rule was incorporated into N.J.S.A. 2C:1-8(b), which reads
Except as provided in subsection c. of this section, 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 first trial and are within the jurisdiction and venue of a single court.
Pursuant to the mandatory joinder rule, all crimes known to the prosecutor arising out of a single drug transaction must be joined and any omitted offense will be barred. State v. Williams, 172 N.J. 361, 368 (2002); State v. Veney, 409 N.J. Super. 368, 383 (App. Div. 2009).
Both Indictments No.09-02-743 and No. 09-06-2256 charged defendant with drug offenses in Camden. However, the first indictment alleged that all of the offenses charged occurred on June 24, 2008. The counts against the defendant in the second indictment were alleged to occur on June 4, 2008 (count four) and between May 19 and June 4, 2008 (count five). These are, then, distinct acts, separated by a minimum of three weeks. Nonetheless, defendant argues that mandatory joinder was required because the charges involved drug transactions in the same vacant lot in Camden.
In State v. Yoskowitz, 116 N.J. 679 (1989), the Supreme Court identified four criteria a defendant must satisfy to invoke the mandatory joinder rule: "(1) the multiple offenses are criminal; (2) the offenses are based on the same conduct or arose from the same episode; (3) the appropriate prosecuting officer knew of the offenses at the time the first trial commenced; and (4) the offenses were within the jurisdiction and venue of a single court." Id. at 701. As the motion judge noted, the only factor in dispute is whether the offenses charged in the two indictments arose from the same episode. In State v. Pillot, 115 N.J. 558 (1989), the Supreme Court considered whether the defendant's criminal activity, consisting of six armed robberies in a nine-week period constituted "criminal offenses based on the same conduct or arising from the same criminal episode." Id. at 567. The Court stated:
Although defendant characterizes her criminal conduct as the result of a short period of aberrant behavior, she committed six different armed robberies against six different victims in six different locations at different times over a nine-week period. These circumstances do not indicate the crimes are the product of a continuing plan or common scheme or that they constitute a single episode. The only circumstance that serves to make these crimes comparable and ties them together is the modus operandi used by the defendant -- their manner of execution was similar. Even applying broad standards of "flexibility" in determining whether separate criminal incidents can be fused into a single criminal episode, the offenses here are factually distinct in terms of time, place, and victim, if not manner. We would not, therefore, conclude that the joinder of these offenses was required[.]
[Ibid. (internal citations omitted).]
We are similarly persuaded that the fact that defendant engaged in multiple drug transactions at the same location does not require the fusing of his offenses and preclude prosecution for the offenses charged in Indictment No. 09-06-2256 under either mandatory joinder rules or the doctrine of fundamental fairness. Affirmed.
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