New York Criminal Lawyer Blog
The two accused men, charged with the crimes of Criminal Sale of a Dangerous Drug and Conspiracy, move to dismiss the indictment on the grounds that the prosecution puts them in jeopardy again for crimes of which they already have been convicted in another jurisdiction. They contend, in short, that their prosecution in Nassau County of the crime of Conspiracy included therein acts which are alleged in this indictment and thus fall within the proscriptions of the Criminal Procedure Law which prohibit such a second prosecution. The Court ordered a hearing on the contentions of the accused men and the facts and circumstances of the issues as testified to at the hearing.
A New York Criminal Lawyer said the accused men with others met the undercover Police Officer who was accompanied by an informer at a restaurant owned by one of the accused in Queens County Restaurant. There was a discussion concerning the buying and selling of cocaine and the accused men quoted prices to the undercover detective. An agreement was made the next day to meet at the same place for the purchase of 1/8 of a kilo and at the subsequent meeting the accused delivered the 1/8 of a kilo to the officer and received from him the sum of $4,000 as a payment. Having established a basis for doing business, the accused men and undercover officer, entered into another deal at a Restaurant for the sale of a kilo for $32,000. The actual sale for the kilo was made in Nassau County.
Subsequently, the accused men were indicted in Queens County charged with the crime of Criminal Sale in the First Degree, involving the $4,000 sale and the conspiracy which led up to that substantive crime. They were also indicted by the Nassau County Grand Jury for crimes involving the $32,000 sale, Criminal Sale of a Controlled Substance, Criminal Possession of a Controlled Substance (drug possession) and Conspiracy.
One of the accused went to trial in Nassau County on the indictment and was convicted of all three counts. He pleaded Guilty to Criminal Sale of a Controlled Substance in full satisfaction of all the counts in that indictment. Of particular significance is the Nassau County indictment which alleges the accused of fourth counts of Conspiracy.
The accused between on or about the 6th day of November, a NYC Criminal Lawyer said 1975 agreed with each other to engage in and cause the performance of such conduct and in furtherance of the aforesaid conspiracy, the said men among other things, met on more than one occasion at the Restaurant in New York.
During the trial of one of the accused in Nassau County Court, the arresting officer in the case at bar, testified in part as follows about the meeting that took place at the Restaurant on November 7th, 1975. He furthered testified that they all sat down after they were introduced to each other. At that point, the accused asked the police officer if he was interested in buying a quantity of cocaine. When the police officer said yes, the accused was very business-like when he said that a kilo would cost him $32,000.
Thereafter, the police officer testified to the details of the transaction that took place in Queens County on November 8th involving the $4,000 sale. The sale is the sale that is charged in Count One of the indictment before the Court. Following the details of the transaction, the police officer testified to other meetings and the consummated sale of a kilo of cocaine which took place in Nassau County. It is argued that jeopardy has not attached because the agreement to sell 1/8 of a kilo and the one kilo, which sales later were consummated in the two different jurisdictions, were in fact not one conspiracy, but two different conspiracies to commit two different crimes.
The argument has no merit. It is certainly more than a coincidence that both the Nassau County indictment and the Queens County indictment alleged as an overt act, the meeting of the parties in the Restaurant during the November 7th period. It is apparent that at the meeting on November 7th, the corrupt agreement to do business with each other was hatched, and the plan itself was the criminal transaction which resulted in the two sales, one in Queens and one in Nassau.
The Criminal Procedure Law defines a criminal transaction as conduct which establishes at least one offense and which is comprised of two or more of a group of acts either so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.
The gravamen of the crime of conspiracy is the unlawful combination to violate the law. A New York Sex Crimes Lawyer said the offense is complete upon the proof of the unlawful agreement and of an overt act to affect its object by any of the parties to that agreement. It is therefore apparent to the Court that when the parties met, they met to establish a relationship to be sellers and purchasers of cocaine and that both accused agreed with each other to sell the cocaine to their prospective customers and that they had that single intent in purpose although the sales were to be made in successive quantities at possibly different times.
A criminal conspiracy is committed by the agreement or plan among two or more to commit some crime in the future. The fact that the conspirators agreed to commit more than one crime in the future does not change the conspiracy as separate conspiracies to commit separate crimes providing that the agreement expressed or implied to commit the crimes was made at one time.
It is apparent therefore, that the count of the indictment charging Conspiracy must fall, since the criminal conspiracy to sell cocaine entered into by the accused was prosecuted in the Nassau County Court.
More troublesome is the issue of the disposition of the substantive crime which allegedly took place in Queens County on November 8th, 1975, upon which accused stand indicted for the crime of Criminal Sale of a Controlled. The accused men contend that proof of the commission of that crime in Queens County was part of the issues tried in the Nassau County Court under the Nassau indictment and that being so, the verdict of the Nassau County Court, included a finding of their guilt of the crime charged in the Queens indictment, and thus that Count must be dismissed.
It is well settled that conspiracy is an independent crime for which an accused can be indicted and tried in addition to being indicted and tried for the substantive crime which is the alleged object of said conspiracy. Thus, the conspiracy to commit a crime does not merge in the actual commission thereof.
It has been held that a conviction or acquittal on a charge of conspiracy will not support a plea of double jeopardy on a trial under a substantive indictment for the actual commission of a crime growing out of the same fact. If the rule were otherwise a person who criminally conspires in one county to commit crimes in five other counties could not be prosecuted for the five substantive crimes if he were prosecuted for the conspiracy in the place where it was committed. Obviously is not the intent of the law.
Accordingly, the motion to dismiss Count One of the indictment charging a Criminal Sale is denied. The motion to dismiss the Count charging Conspiracy is granted.
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