47 N.Y.2d 825 | NY | 1979
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be reversed and the indictment dismissed.
It may be, as the District Attorney alleges in his brief, that the State and Federal indictments were the result of completely separate and independent investigations and that the Federal authorities were not informed of the sale which formed the basis of the State indictment. But whether the sale was alleged, proven or even known to the Federal authorities is of no consequence. If the sale was not actually a part of the Federal prosecutor’s case it was nevertheless an integral part of the crime to which the defendant pleaded because "conspiracy is an embracive crime. It embraces all of the overt acts and substantive crimes in the persisting criminal enterprise” (People v Abbamonte, 43 NY2d 74, 85). Thus the defendant’s conviction in Federal court for conspiracy to distribute cocaine precludes subsequent prosecution in this State for the sale which concededly was part of the conspiracy (CPL 40.20; People v Abbamonte, supra).
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.
Order reversed, etc.