Corbin v. Hillery

• Citation: 74 N.Y.2d 279,545 N.Y.S.2d 71,543 N.E.2d 714
• Parties: , 543 N.E.2d 714 In the Matter of Thomas J. CORBIN, Appellant, v. Judith A. HILLERY, as Judge of the Dutchess County Court, et al., Respondents.
• Decision Date: 13 July 1989
• Court: New York Court of Appeals

Page 71

545 N.Y.S.2d 71

74 N.Y.2d 279, 543 N.E.2d 714

In the Matter of Thomas J. CORBIN, Appellant, v. Judith A. HILLERY, as Judge of the Dutchess County Court, et al., Respondents.

Court of Appeals of New York.

July 13, 1989.

Certiorari Granted Nov. 6, 1989.

See 110 S.Ct. 362.

[543 N.E.2d 715] Richard T. Farrell, Brooklyn, and Ilene J. Miller, for appellant

[74 N.Y.2d 282] William V. Grady, Dist. Atty. (Bridget Rahilly Steller, of counsel), pro se.

OPINION OF THE COURT

TITONE, Justice.

At issue in this appeal is whether an individual who has previously pleaded guilty to the misdemeanor of driving while intoxicated (Vehicle and Traffic Law § 1192 [3], as well as to a related traffic infraction, may subsequently be prosecuted on homicide, assault and other charges arising out of the same incident when the prosecution concedes its intention to use the facts underlying the former conviction to establish essential elements of the latter crimes. The constitutional problem has arisen in this case, despite the broad protections afforded by New York's statutory double jeopardy provisions (CPL art. 40), because, in this instance, those provisions are superseded by Vehicle and Traffic Law § 1800(d), which purports to authorize a subsequent vehicular assault and homicide prosecution even though the defendant has previously been prosecuted for and convicted of traffic violations for the same acts. A subsidiary question exists as to whether petitioner is precluded from invoking his right to be free from successive prosecutions for the same conduct because he was guilty of procuring the prior conviction, without the prosecutor's knowledge, as a means of avoiding prosecution for the more serious crimes (see, CPL 40.30[2][b]. Concluding that both issues should be resolved in petitioner's favor, we now reverse the Appellate Division judgment to the contrary and hold that petitioner's request for an order prohibiting further prosecution should have been granted.

I. Factual Background

On October 3, 1987, petitioner's automobile allegedly crossed a double yellow line and struck two other vehicles. As a result, petitioner and the passenger of one of the other vehicles were seriously injured and another individual was killed. Tests performed after the accident revealed that petitioner had a .19% blood alcohol level.

On the night of the accident, while he was in the hospital being treated for his own injuries, petitioner was served with two uniform traffic tickets, returnable October 29, 1987, charging him, respectively, with operating a motor vehicle in an intoxicated condition (Vehicle and Traffic Law § 1192[3] and driving on the wrong side of the road (see, Vehicle and Traffic Law § 1120). The return date of these traffic tickets was subsequently changed, apparently without notice to the District Attorney, from the 29th to the 27th of October, a night on which the District Attorney's office did not "cover" the Town Justice Court. The Assistant District Attorney who had prepared the paperwork on the traffic offense prosecutions (ADA Glick) was inexplicably unaware that the accident had resulted in a fatality and, consequently, his written submissions to the court, which included a cover letter, a CPL 710.30 notice and a "statement of readiness," did not alert the court to the seriousness of the incident.

Petitioner appeared with his attorney on the scheduled return date and entered a plea of guilty to the charges contained in both traffic tickets. Petitioner's attorney did not volunteer that the case involved a fatality and, in response to a question by the Town Justice, indicated that he had had contact with the District Attorney's office about the case. ¹ Although counsel had apparently expressed a preference to have sentence imposed immediately, the court decided to postpone sentencing until November 17, 1987, because the file contained no sentencing recommendation from the prosecutor.

On the date set for sentencing, the People were represented by ADA Sauter, who was unaware that there had been a fatality, was unable to locate the file and had not spoken to ADA Glick about the case. Nevertheless, Sauter did not request an adjournment so that she could ascertain the facts necessary to make an informed sentencing recommendation. Petitioner's attorney remained silent, although he was aware that petitioner's automobile had been impounded in connection with an investigation of the accident. Thus, once again, the court remained ignorant of the severity of petitioner's offense. Petitioner was ultimately sentenced on his guilty pleas to a fine, a six-month revocation of his driver's license and other, related sanctions.

During the pendency of the traffic offense prosecution, other staff members within the District Attorney's office had actively been investigating the possibility of pressing more serious charges against petitioner. ADA Chase, who was aware that a person had been killed in the accident, began as early as October 6, 1987 to gather evidence. Despite his active involvement in building a homicide case against petitioner, however, Chase did not attempt to ascertain the date petitioner was scheduled to appear in Town Justice Court on the traffic tickets, nor did he inform either the Town Justice Court or the Assistant District Attorney covering that court about his pending investigation. It was not until November 19, 1987, two days after the fact, that Chase learned of petitioner's guilty plea and sentencing.

A Grand Jury presentment was finally made in early January, 1988. The delay was allegedly occasioned, at least in part, by difficulties that ADA Chase encountered in obtaining a report by an accident reconstructionist. On January 19, 1988, an indictment was issued charging petitioner with one count of reckless manslaughter (Penal Law § 125.15[1], two counts of second degree vehicular manslaughter (Penal Law § 125.12), ² one count of criminally negligent homicide (Penal Law § 125.10), one count of third degree reckless assault (Penal Law § 120.00[2], and two counts of driving while intoxicated (Vehicle and Traffic Law § 1192[2], [3].

Petitioner promptly moved to dismiss the indictment on double jeopardy grounds. The motion was denied, however, after a hearing in which the County Court in which the action was being prosecuted found that petitioner had procured the traffic prosecution, "without the knowledge of the appropriate prosecutor, for the purpose of avoiding prosecution" for the more serious homicide charges (see, CPL 40.30[2][b]. Petitioner then commenced the present article 78 proceeding for a writ of prohibition, asserting, once again, that double jeopardy principles barred the prosecution of the January 1988 indictment. The Appellate Division dismissed the petition, without opinion, and this appeal, taken as of right on constitutional grounds, ensued. We now reverse. Since the Double Jeopardy Clause of the United States Constitution bars prosecution of the homicide and assault counts and both the Double Jeopardy Clause and the provisions of CPL article 40 bar prosecution of the remaining counts, petitioner's request for a writ of prohibition should have been granted. ³

II. CPL 40.30 (2)(b)

As a threshold matter, we address the application of CPL 40.30(2)(b), which was the basis of the County Court's refusal to dismiss the indictment. ⁴ That subdivision provides for an exception to the general statutory prohibition against successive prosecutions (see, CPL 40.20) in cases where the previous prosecution "was for a lesser offense than could have been charged under the facts of the case, and the prosecution was procured by the defendant, without the knowledge of the appropriate prosecutor, for the purpose of avoiding prosecution for a greater offense." Although this provision has not previously been construed by our court, it is apparent that it was intended primarily to address situations in which the defendant or his attorney induces a local criminal court, before the District Attorney has entered the picture, to accept a guilty plea and enter a conviction for a relatively minor offense as a means of foreclosing the possibility of a prosecution for a more serious offense in superior court (Staff Comment to Proposed CPL 20.30[2][b], at 58, cited in 3 Zett, N.Y.Crim.Prac. p 22.5[2], at 22-26, & n. 15 [1986 ed.]; see, People v. Dishaw, 54 A.D.2d 1122, 388 N.Y.S.2d 795). While not necessarily limited to such situations, the provision evidently was designed primarily to withhold statutory double jeopardy protection in those situations where the responsible prosecuting authority did not have the opportunity to be heard or to apprise the court of the aggravating facts before a conviction for a mere infraction or lesser misdemeanor was entered.

Thus, it is a principal requirement for the application of CPL 40.30(2)(b) that the prior prosecution have been procured "without the knowledge of the appropriate prosecutor" (see generally, People v. Daby, 56 A.D.2d 873, 392 N.Y.S.2d 325). In this case, that requirement is simply not satisfied. Although no representative of the Dutchess County District Attorney, the "appropriate prosecutor" (see, id.), was present on October 27, 1987, the date petitioner's guilty plea was accepted, the District Attorney's office had actively participated in the traffic infraction prosecution in the Town Justice Court by filing a CPL 710.30 notice and a statement of readiness. Moreover, the District Attorney's office was represented at the sentencing, the final step in what CPL 40.30(1)(a) defines as a "prior prosecution" for purposes of the statutory double jeopardy rules (see, People v. Snyder, 99 A.D.2d 83, 85, 471 N.Y.S.2d 430). Accordingly, while petitioner and his counsel may have been less than forthcoming in their dealings with the Town Justice Court at the time that petitioner's guilty plea was entered, it certainly cannot be said that the traffic infraction ...