conduct. R. 3:15-1(b); N.J.S.A. 2C:1-8b. Unjoined
offenses that should have been joined may later be barred.
Because the rule has an effect similar to the effect of
conventional double jeopardy protection, case law
discussing the rule is noted here.
In State v. Gregory, 66 N.J. 510 (1975), defendant
sold a small quantity of heroin in a glassine envelope to an
undercover narcotics agent. The sale took place in
defendant’s apartment. The officer saw defendant
remove the glassine bag from a stack of other envelopes.
After the sale, the officer notified other officers who
immediately returned to seize the rest of the cache.
Defendant was indicted, tried, and convicted for the
single sale. Thereafter, he was charged in two separate
indictments with possession and possession with intent
to distribute the other heroin. He was convicted on both
later charges. The Supreme Court reversed, noting that
neither the “same evidence,” test nor the principles of
collateral estoppel and double jeopardy would bar the
conviction. The Court relied on the broad principles of
State v. Curie, 41 N.J. 531 (1959), which emphasized
basic considerations of fairness and reasonable
expectations. Since the prosecution knew of the sale and
the possession of the large quantity, the Court held that
there should have been a joinder of all charges. The Court
followed Section 1.07(2) of the M.P.C. which provides
that a defendant shall not be subject to separate trials for
multiple offenses based on the same conduct or arising
from the same criminal episode where the prosecuting
attorney knows the offenses when he begins the first trial
an the offenses are within the jurisdiction of the court.
This decision had been codified in R. 3:15-1(b) and in
N.J.S.A. 2C:1-8b. See also State v. Godfrey, 139 N.J.
Super. 135 (App. Div. 1976), certif. denied, 73 N.J. 40
(1976).
In State v. Vasquez, 135 N.J. Super. 303 (Law Div.
1975), defendant was convicted of distributing cocaine
from his apartment in March 1974. Thereafter, he was
indicted for possession of cocaine in the same apartment
in April 1974. Relying on Gregory, defendant argued
that since the possession offense was fully known to the
prosecution prior to the return of the indictment and trial
for distribution, they should have presented all the
charges in one indictment. The trial court disagreed,
noting that the possession of cocaine in April 1974 did
not charge an offense “based on the same conduct or
arising from the same criminal episode” as the illegal sale
in March 1974. The court noted that in Gregory, the
actual sale and the possession with intent to distribute
both involved the same bulk of narcotics within a
relatively short time span.In State v. Phillip, 150 N.J. Super. 75 (App. Div.
1977), defendant had been indicted for possession of
heroin with intent to distribute. The indictment was
dismissed on motion of the prosecutor, however, after
defendant succeeded on a motion to suppress evidence.
Defendant was later charged with distributing heroin to
an undercover police officer on the same day. The trial
court, relying on Gregory, dismissed the latter indictment
on the ground that the State was required to join all the
offenses it intended to prosecute. The Appellate Division
reversed and reinstated the indictment, since no
disposition on the merits had taken place with respect to
the first indictment. Fundamental fairness, the Court
ruled, did not require dismissal of the second indictment.In State v. Muscia, 206 N.J. Super. 551 (App. Div.
1985), the Appellate Division reinstated an indictment
dismissed by the trial court after trial on an earlier
indictment charging similar crimes of receiving stolen
motor vehicles, determining that the offenses in each
indictment did not arise from the same conduct, episode,
or transaction. The Court found no substantive
difference between the mandatory joinder provision in R.
3:15-1(b) and provisions in N.J.S.A. 2C:1-8b. The
Court recommended amendment of R. 3:15-1 to
conform to A.B.A. Standards for Criminal Justice (2d. ed.
1980), Ch. 13 Joinder and Severance, Standard
13.2.3(b), requiring defendant to move for joinder of
same-conduct offenses he knew had been charged.State v. Louf, 64 N.J. 172 (1973), held that separate
prosecutions for similar offenses, all arising out of the
same general series of events, did not necessarily
constitute a form of harassment. The Louf rationale may
be applicable in a Gregory situation. Louf involved a
conspiracy of numerous Hudson County officials, and a
single trial of all the indictments would have involved too
many defendants and too many issues.In State v. Tsoi, 217 N.J. Super. 290 (App. Div.
1987), defendant was charged with many counts of
embezzlement from her employer over a five-month
period. However, it did not become apparent that
defendant was responsible for numerous other
unexplained shortages at the company until one month
after defendant confessed in a handwritten informal
statement to the single theft to which she pleaded guilty
in municipal court. After completion of a formal
investigation into the numerous shortages, the manager
signed another complaint against defendant, charging