People ex rel. Hetenyi v. Johnston

• Decision Date: 18 March 1960
• Parties: PEOPLE of The State of New York ex rel. George HETENYI, Relator-Appellant, v. Dr. W. Cecil JOHNSTON, Director of Dannemora State Hospital, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 18

198 N.Y.S.2d 18

10 A.D.2d 121

PEOPLE of The State of New York ex rel. George HETENYI, Relator-Appellant, v. Dr. W. Cecil JOHNSTON, Director of Dannemora State Hospital,

Respondent.

Supreme Court, Appellate Division, Third Department.

March 18, 1960.

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.

REYNOLDS, Justice.

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 App.Div. 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 App.Div. 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 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 conviction reversed on his appeal. That case involved a prosecution arising in a Federal Court. The Supreme Court has held that the double jeopardy clause of the Fifth Amendment as such was not made applicable to the state under the due process clause of the Fourteenth Amendment (Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288). More recently in Hoag v. State of New Jersey, 356 U.S. 464, at page 467, 78 S.Ct. 829, at page 832, 2 L.Ed.2d 913, involving successive state prosecutions for different offenses arising out of the same occurrence the court stated the question is one of 'fundamental unfairness' and that due process depends on the facts and circumstances of each case. It would seem clear that procedure followed in the present case does not involve a violation of due process. The state has not attempted to 'wear the accused out by a multitude of cases' for the relator himself appealed the convictions and obtained the new trials. There is not involved here a 'fundamental unfairness' or 'a hardship so acute and shocking that our policy will not endure it.' 302 U.S. 319, 328, 58 S.Ct. 149, 153. In an early case involving a similar situation a state court was upheld by the Supreme Court (Brantley v. State of Georgia, 217 U.S. 284, 30 S.Ct. 514, 54 L.Ed. 768). The majority in the Green case did not overrule that decision but merely stated that it was not controlling there since it involved a trial in a state court. In Brantley both the jeopardy clause of the Fifth Amendment and due process under the Fourteenth had been raised. Thus the double jeopardy clause of the Fifth Amendment is not applicable to the states so that the Green case is not binding on the New York Courts, and further the procedure followed here does not violate the due process clause of the Fourteenth Amendment.

This leaves the question whether the Green case, although not controlling, should be followed in New York inasmuch as it construes the double jeopardy clause of the United States Constitution similar to the one contained in the New York Constitution. The law of New York is firmly established that when a defendant procures a reversal of a conviction he may again be tried on the original indictment and for higher degrees of the crime that the jury originally found him guilty of (People v. Palmer, 109 N.Y. 413, 17 N.E. 213; People v. McGrath, 202 N.Y. 445, 96 N.E. 92). These decisions are buttressed by two provisions of the Code of Criminal Procedure which provide that:

Section 464

'The granting of a new trial places the parties in the same position as if no trial had been had.'

and Section 544

'New trial. When a new trial is ordered, it shall proceed in all respects as if no trial had been had.'

This position was recently reaffirmed by the Court of Appeals in People v. Ercole, 4 N.Y.2d 617, 620, 176 N.Y.S.2d 649, 652, a case decided after the Green case. A majority of the other states are in agreement with the New York rule. Justice Frankfurter in his dissent in the Green case lists the states as being 19 to 17 on the question (cf. 61 A.L.R.2d 1141, 1146). There has been no rush by those states to follow the Green case. New Jersey has adopted the rule and it appears it was the first time that an appellate court in New Jersey had considered the situation (State v. Williams, 30 N.J. 105, 152 A.2d 9) and Washington has changed its position in a 5 to 4 decision to coincide with Green (State v. Schoel, 341 P.2d 481). Kentucky on the other hand has reaffirmed its position as contra to the ...