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According to the People, jeopardy has not attached

On 7 November 1975, the defendants with others, met an undercover Police Officer, who was accompanied by an informer, at a restaurant owned by defendant-one, in Queens County. There was a discussion concerning the buying and selling of cocaine and the defendants quoted prices to the undercover detective at $4,000 for 1/8 of a kilo, and $32,000 for a kilo. The next day, an agreement was made and to meet at the same place for the purchase of 1/8 of a kilo. At the subsequent meeting, defendant-one delivered the 1/8 of a kilo to the officer and received from him the sum of $4,000 as payment. Having established a basis for doing business, the defendants and the undercover officer entered into another deal at the restaurant for the sale of a kilo for $32,000. The actual sale for the kilo was made in Nassau County.

Subsequently, the defendants 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, to wit: Criminal Sale of a Controlled Substance in the First Degree, Criminal Possession of a Controlled Substance in the First Degree and Conspiracy in the First Degree.

During the trial of defendant-two in Nassau County Court, the arresting officer testified about the meeting that took place at the restaurant in Queens County on 7 November 1975; he further testified to the details of the transaction that took place in Queens County on 8 November 1975 involving the $4,000 sale, the sale that was charged in Count One of the indictment; and he testified to other meetings and the consummated sale of a kilo of cocaine which took place in Nassau County.

In Nassau County, defendant-two went to trial on the indictment and was convicted on all three counts, and defendant-one pleaded Guilty to Criminal Sale of a Controlled Substance in the Third Degree in full satisfaction of all the counts in that indictment. Of particular significance is the Nassau County indictment itself which alleged in its fourth count charging the defendants with Conspiracy in the First Degree.

In Queens County, the defendants, charged with the crimes of Criminal Sale of a Dangerous Drug in the First Degree, and Conspiracy in the First Degree, moved 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, Nassau County.

According to the defendants, their prosecution in Nassau County of the crime of Conspiracy in the First Degree included therein acts which were alleged in the Queens County indictment and thus fall within the proscriptions of CPL 40.20 which prohibit such a second prosecution.

According to the People, jeopardy has not attached because the agreement to sell 1/8 of a kilo and the one kilo, which sales were consummated in two different jurisdictions, were in fact not one conspiracy, but two different conspiracies to commit two different crimes.

In CPL 40.10, sub. 2, a criminal transaction is defined as a 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.

On another note, the gravamen of the crime of conspiracy is the unlawful combination to violate the law. The offense is complete upon the proof of the unlawful agreement and of an overt act to effect its object by any of the parties to that agreement, as held in the cases of People v. Burns and People v. Mackell. As held in the case of People v. Potwora, 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, provided, that the agreement, expressed or implied, to commit the crimes was made at one time.

Here, the argument offered by the people is without 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 in Queens County on 7 November 1975. At that meeting, it is apparent that 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. Clearly, when the parties met, they met to establish a relationship to be sellers and purchasers of cocaine, and both defendants agreed with each other to sell the cocaine to their prospective customers and they had that single intent in purpose although the sales were to be made in successive quantities at possibly different times. It is apparent therefore, that the count of the indictment charging Conspiracy in the First Degree in Queens County must fall, since the criminal conspiracy to sell cocaine entered into by the defendants has already been prosecuted in the Nassau County Court.
Moreover, more troublesome is the issue of the disposition of the substantive crime which allegedly took place in Queens County on 8 November 1975, upon which defendants stand indicted for the crime of Criminal Sale of a Controlled Substance in the First Degree.

According to the defendants, proof of the commission of the aforementioned 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 also be dismissed.
As held in the cases of Pereira v. United States; People v. Epton; People v. Tavormina; People ex rel. Hart v. Truesdell; and People v. Taft., it is well settled that conspiracy is an independent crime for which a defendant 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 also been held in the cases of Moorehead v. United States; Harris v. United States; Bens v. United States; and Bell v. United States 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. This obviously is not the intent of the law.

Accordingly, the motion to dismiss the count charging Conspiracy in the First Degree in Queens County was granted, but the motion to dismiss count one thereof charging a Criminal Sale in the First Degree was denied.

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