10 A.D.2d 121, People ex rel. Hetenyi v. Johnston
|Citation:||10 A.D.2d 121, 198 N.Y.S.2d 18|
|Party Name:||People ex rel. Hetenyi v. Johnston|
|Case Date:||March 18, 1960|
|Court:||New York Supreme Court Appelate Division, Third Department|
[198 N.Y.S.2d 19] Robert P. Wylie, Plattsburgh, for relator-appellant.
Louis J. Lefkowitz, Atty. Gen., of the State of New York (Winifred C. Stanley and Paxton Blair, Albany, of counsel), for respondent.
Before BERGAN, P. J., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.
The relator was indicted for the crime of murder, first degree. He was tried in Monroe County in January, 1950 and found guilty of murder, second degree. This conviction was reversed on an appeal by the relator (277 A.D. 310, 98 N.Y.S.2d 990, affirmed 301 N.Y. 757, 95 N.E.2d 819) and he was then retried in May, 1951 for murder, first degree in Monroe County. On this second trial he was convicted of murder, first degree and sentenced to death, but on appeal this conviction was likewise reversed (304 N.Y. 80, 106 N.E.2d 20). The relator was again tried for murder, first degree, this time in Onondaga County in March, 1953, having obtained a change of venue, and was convicted of murder, second degree, which conviction was upheld on appeal (282 A.D. 1008, 125 N.Y.S.2d 689). The relator based his application for a writ of habeas corpus on the ground of double jeopardy, asserting that he should not have been retried for murder, first degree after he had been found guilty of only second degree murder on his first trial. The [198 N.Y.S.2d 20] court below dismissed the writ of habeas corpus holding that it was the law of New York that this does not constitute double jeopardy.
The relator contends on this appeal that his second and third trials for murder, first degree violated the double jeopardy clause of the New York State Constitution, art. 1, § 6, and the due process clause of the Fourteenth Amendment of the United States Constitution. He relies principally on the case of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, in which the Supreme Court in a 5 to 4 decision held that it was contrary to the double jeopardy clause of the Fifth Amendment of the United States Constitution
to retry a defendant for murder in the first degree after he had been so tried once, convicted of murder in the second degree, and that...
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