State v. Ashrue

Citation601 A.2d 265,253 N.J.Super. 181
PartiesSTATE of New Jersey, Plaintiff, v. Mukailan Trump ASHRUE, Defendant. (Criminal) Middlesex County
Decision Date10 December 1991
CourtSuperior Court of New Jersey

J. Patrick Barnes, Asst. Prosecutor (Alan Rockoff, Middlesex County Prosecutor) for State.

Dennis V. Nieves, for defendant.

MESSINA, J.S.C.

The issue before the Court is whether or not prosecution of the pending State indictment is barred by N.J.S.A. 2C:1-11a because of a previous federal prosecution involving the same defendant.

On January 28, 1989, New Jersey State Trooper Soulias stopped the motor vehicle which defendant Ashrue was driving for a motor vehicle violation. During a search of the vehicle, to which Ashrue had previously consented, Trooper Soulias discovered a kilo of suspected cocaine in a vinyl bag underneath the rear undercarriage.

In March 1989, the Middlesex County Grand Jury indicted Ashrue for the possession of cocaine and for the possession of cocaine with the intent to distribute.

On November 28, 1989, a Federal Grand Jury for the Middle District of North Carolina indicted Ashrue in a three count indictment. The First Count charged that prior to, in, or about the fall, 1988, and continuing up to and including June 20, 1989, in the Middle District of North Carolina, the Eastern District of New York, and elsewhere, Ashrue and other named individuals conspired to willfully, intentionally, and unlawfully possess multiple kilogram quantities of cocaine hydrochloride with intent to manufacture crack. The indictment set forth numerous alleged overt acts in furtherance of the conspiracy in early May 1989 in Brooklyn, New York, and Greensboro, North Carolina, and also on or about June 5 and June 6, 1989 in Brooklyn, New York, and Greensboro, North Carolina. Counts 2 and 3 charged the Defendant Ashrue and other named individuals with possession of cocaine hydrochloride with intent to manufacture crack in Guilford County, North Carolina, on or about May 3, 1989, and on or about June 6, 1989, respectively. The New Jersey incident of January 28, 1989 was not mentioned in the North Carolina federal indictment either as an alleged overt act with regard to the Count 1 conspiracy charges or otherwise.

The North Carolina indictment was tried in May 1990 and resulted in Ashrue's conviction on all counts. During the trial, New Jersey State Troopers Soulias and Burke were called as prosecution witnesses. Trooper Soulias testified that he stopped a motor vehicle being driven by Defendant Ashrue for a motor vehicle violation on January 28, 1989, and found a kilo of suspected cocaine in a vinyl bag under the rear undercarriage of the vehicle. Trooper Burke verified the removal of the bag containing suspected cocaine by Soulias from the undercarriage of the vehicle. The testimony of the two New Jersey Troopers occupied approximately ten pages of the total transcript of the North Carolina proceedings which was in excess of 500 pages. The North Carolina trial focused on the alleged overt acts in furtherance of the conspiracy and on proof of the acts alleged in Counts 2 and 3 of the indictment on or about May 3, 1989, and on or about June 6, 1989, in Guilford County, North Carolina. The prosecution presented substantial evidence to implicate Defendant Ashrue in the alleged conspiracy in addition to that provided by the two New Jersey troopers.

On August 10, 1990, the United States District Court Judge in North Carolina sentenced Ashrue to a prison term of 188 months on Counts 1 through 3 consolidated.

Defendant Ashrue is now present in New Jersey for trial on the State indictment. The New Jersey charges were presented to a jury in July 1991; the Court declared a mistrial because of the inability of the jury to reach a unanimous verdict on any count. On the eve of the second New Jersey trial, defendant's New Jersey attorney (who did not represent the defendant at the previous New Jersey trial), moved to dismiss the New Jersey indictment because of statutory double jeopardy, N.J.S.A. 2C:1-11a.

N.J.S.A. 2C:1-11a in relevant part provides:

When conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States, a prosecution in the District Court of the United States is a bar to a subsequent prosecution in this State under the following circumstances:

a. The first prosecution resulted in an acquittal or in a conviction, or in an improper...

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4 cases
  • State v. Jones
    • United States
    • New Jersey Superior Court – Appellate Division
    • 16 Febrero 1996
    ..."identical conduct." Id. at 172, 453 A.2d 1354. That is to say, "[o]verlapping conduct is not identical." State v. Ashrue, 253 N.J.Super. 181, 184, 601 A.2d 265 (Law Div.1991). For example, in State v. Buhl, 269 N.J.Super. 344, 367-370, 635 A.2d 562 (App.Div.), certif. denied, 135 N.J. 468,......
  • State v. Buhl
    • United States
    • New Jersey Superior Court – Appellate Division
    • 3 Enero 1994
    ...(App.Div.1982), certif. denied, 93 N.J. 261, 460 A.2d 666 (1983). "Overlapping conduct is not identical." State v. Ashrue, 253 N.J.Super. 181, 184, 601 A.2d 265 (Law Div.1991). This construction of the statutory bar is consistent with that given by the courts of other jurisdictions. See Sta......
  • State v. Walters
    • United States
    • New Jersey Superior Court – Appellate Division
    • 23 Febrero 1995
    ...certif. denied, 135 N.J. 468, 640 A.2d 850 (1994); DiVentura, supra, 187 N.J.Super. at 172-73, 453 A.2d 1354; State v. Ashrue, 253 N.J.Super. 181, 184, 601 A.2d 265 (Law Div.1991). Obviously, defendant's prior prosecution for mail theft was not identical to his prosecution for theft and oth......
  • State v. Cargill
    • United States
    • New Jersey Superior Court – Appellate Division
    • 13 Mayo 1998
    ...187 N.J.Super. 165, 172-73, 453 A.2d 1354 (App.Div.1982), certif. denied, 93 N.J. 261, 460 A.2d 666 (1983); State v. Ashrue, 253 N.J.Super. 181, 184, 601 A.2d 265 (Law Div.1991). Overlapping conduct is not identical conduct for purposes of N.J.S.A. 2C:1-11. Jones, supra, 287 N.J.Super. at 4......

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