Pеtitioners were each given substantial prison terms upon their conviction, following a jury trial, of conspiring to violate Federal drug control laws (US Code, tit 21, § 812; § 841, subd [a], par [1]; § 841, subd [b], par [1], cl [A]), and their convictions were affirmed (United States v Sisca,
The princiрal issue presented is whether petitioners may now be prosecuted for criminal possession of dangerous drugs where one of the overt acts alleged and proved in their Federal conspiracy prosecution was possession of the same drugs which form the basis of the State prosecution. Resolution of the issue turns on the meaning and effect of CPL 40.20 which, insofar as is here pertinent, reads:
"2. A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unlеss:
"(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or
"(b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil; or
*563 "(c) One of such offenses consists of criminal possession of contraband matter and the other offense is one involving the use of such contraband matter, other than a sale thereof’.
The facts are not in dispute and may be briefly summarized. Information obtained from electronic and visual surveillance conducted by the New York Joint Task Force between September 28, 1971 and December 15, 1971 disclosed that petitioners and others were part of a large, wholesale narcotics distribution organization operating in New York City, Westchester County and New Jersey. On the morning of December 15, 1971, petitioners Willie Abraham, Margaret Logan and Walter Grant were observed entering the Bronx, New York, residence of рetitioner Robert Hoke and his wife, Lily, carrying empty shopping bags or, in Grant’s case, with a collapsed valise. When they departed, Abraham, Logan and Grant left with their once empty receptacles, filled. They were then followed to different distribution points where they were arrested. Searches conducted incident to the arrests revealed that they each had pver pne pound of heroin in their possession. A subsequent search of the Hoke residence produced large amounts of narcotics, money, weapоns and drug packaging materials.
On December 28, 1971 petitioners were indicted by the Bronx County Grand Jury which, by five indictments (Nos. 32772-36/72), charged petitioners and Lily Hoke with criminal possession of a dangerous drug in the first degree. The indictments also charged petitioner Abraham with two counts of attеmpted murder, two counts of reckless endangerment in the first degree and possession of a weapon; and petitioner Hoke and his wife Lily Hoke with two counts each of possession of a weapon and criminally using drug paraphernalia in the second degreе.
Thereafter, in November, 1972 petitioners and 14 others were indicted by a Federal Grand Jury for conspiring to distribute and possess with the intent to distribute narcotic drugs. The indictment set forth 18 overt acts that petitioners allegedly committed in furtherance of the conspiracy, the lаst of which stated that: "18. On or about December 15, 1971, WILLIE ABRAHAM, a/k/a J. G, WALTER GRANT, MARGARET LOGAN, and ROBERT HOKE did distribute and possess with intent to distribute a total of eight and one-half (8V2) kilograms of heroin hydrochloride, and, in addition, did *564 obtain $70,000 income and resources from prior heroin distributions.”
The Federal prosecution proceeded to trial first. The Government produced сredible evidence of petitioners’ guilt and, specifically, established the overt act alleging petitioners possessed heroin with the intent to distribute the same. As noted, petitioners were convicted and their appeals were unavailing.
Concluding that section 40.20 bаrred the State prosecution, the Appellate Division granted the petition and prohibited respondents "from trying petitioners pursuant to separate indictments (Ind. nos. 32/72-36/72) charging each of them with the crime of criminal possession of a dangerous drug”. Two Justices dissented оn the ground that prohibition does not lie. We modify to the extent of conforming the Appellate Division order to the parties and relief sought in the petition; and otherwise, we affirm.
A threshold question is raised concerning whether this article 78 proceeding in the nature of prоhibition should be entertained. While we recently have had occasion to delimit the scope of this extraordinary remedy
(Matter of Nigrone v Murtagh,
A Fifth Amendment double jeopardy objection was raised in the court below and, while it is true, as petitioners claimed, that
Benton v Maryland
(
Prior to the advent of the Criminal Procedure Law, it was unclear whether New York recognized the dual sovereignties doctrine (see Denzer, Practice Commentаries, McKinney’s Cons Laws of NY, Book 11 A, CPL 40.20, p 106). True, on several occasions we barred a State prosecution based on the same conduct as a prior Federal prosecution. However, in each such instance, the later State prosecution was for thе same identical
offense
as the Federal one
(People v Lo Cicero,
The Legislature, apparently dissatisfied with the Federal formulation, adoрted in the Criminal Procedure Law (CPL 40.20, subd 2) what is generally known as the "same transaction” test (see
Ashe v Swenson,
With this background in mind, we turn to the claims advanced by the appellant District Attorney. He asserts that the State prosecution is not barred because the conspiracy prosecution did not, as he claims, involve the same criminal transaction and, further, that each of the first three lettered exceptions found in CPL 40.20 (subd 2) operates to permit the State action. We cannot agree with these contentions.
*566 The Criminal Procedure Law defines the term "criminal transaction” as used in 40.20 subd (2) as: "conduct which establishes at least one оffense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpоse or objective as to constitute elements or integral parts of a single criminal venture.” (CPL 40.10, subd 2.) The Practice Commentary adds that the term "is primarily a factual concept denoting a group of acts or an episode of conduct which gives rise to one оr more 'offenses.’ An 'offense’ [CPL 40.10] (subd 1) is primarily a legal concept, amounting to a violation of a penal provision which occurs upon the commission of a criminal act or transaction. * * * [0]ne act or 'criminal transaction’ may give rise to several statutory violations or 'offenses’ ” (Denzer, op. tit., McKinney’s Cons Laws of NY, Book 11 A, CPL 40.10, pp 103-104).
While recognizing that conceptually a given conspiracy might not be readily distinguishable from the criminal act which was its objective (see, e.g.,
People v Spitzer,
The District Attorney’s second claim that the State prosecution is excepted by CPL 40.20 (subd 2, par [a]) may not prevail. Principally, it is asserted that the crimes of conspiring to distribute narcotics and of criminally possessing the same have substantially different еlements and that the conspiracy could have been proven without showing petitioners’ possession of drugs on December 15, thereby demonstrating, as paragraph "[a]” requires, that the acts establishing the conspiracy were in the main clearly distinguishable from those еstablishing the possessory crime. However, as the Appellate Division noted, and appellant concedes, "the same possession of the same drugs was among the acts charged and proved and for which a conviction was had”. In such circumstances, we find no substance in the claim, hypothetically posited, that the Federal convictions could have been obtained without proof of possession of the drugs.
Similarly wanting in merit is the District Attorney’s third contention that since conspiracy "presents a greater potential threat to the public than individual delicts”
(Callanan v United States,
The District Attorney next argues that paragraph "[c]” (CPL 40.20, subd 2, par [c]) shelters the State prosecution. This runs directly afoul of our determination in
Matter of Cirillo v Justices of Supreme Ct. of State of N. Y.
(
Finally, the District Attorney requests, properly we think, that action be taken to ameliorate the order entered below. While the Appellаte Division order purports to dismiss five *568 indictments (Nos. 32/72-36/72), it is obvious from the language employed in the order and the accompanying opinion that the Appellate Division intended only to order dismissal of the drug possession charges, a determination with which we agree. * Thus, the Appellate Division order should be modified by striking therefrom the ambiguous reference to the indictment numbers.
Accordingly, the judgment of the Appellate Division should be modified by striking therefrom the following: “(Ind. nos. 32/72-36/72)”; and, as so modified, affirmed.
Chief Judge Breitel and Judges Jasen, Jones, Wachtler, Fuchsberg and Cooke concur.
Judgment modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.
Notes
Indictment No. 34/72 was not even included in the petition; Lily Hoke, charged in No. 35/72, is not a party herein; and, as stated previously, the indictments charged crimes other than criminal possession of dangerous drugs.