Booth v. Clary

Decision Date12 May 1994
Parties, 635 N.E.2d 279 In the Matter of Harvey O. BOOTH, Respondent, v. Lee CLARY, as Judge of the Jefferson County Court, Respondent, and James T. King, as Jefferson County District Attorney, Appellant. In the Matter of Leslie BRIDGEWATER, Respondent, v. Lee CLARY, as Judge of the Jefferson County Court, Respondent, and James T. King, as Jefferson County District Attorney, Appellant.
CourtNew York Court of Appeals Court of Appeals


The District Attorney of Jefferson County appeals in two cases seeking to overturn the grant of writs of prohibition preventing his office from prosecuting serious crimes committed by two off-duty soldiers off military property. The petitioners soldiers were tried and convicted by a general court-martial for the identical conduct for which they were also indicted in Jefferson County. The issue in each case is whether a military tribunal is a court "of any jurisdiction within the United States" within the meaning of CPL 40.30(1). If so, New York's statutory double jeopardy protection bars the successive prosecutions at issue in the discrete cases. We conclude that the courts-martial constitute a statutorily intended "court" and must be deemed previous prosecutions for purposes of the statutory bar of subsequent prosecutions. The Appellate Division judgments barring the prosecutions under the indictments should be affirmed.

In August 1991, the United States Army charged petitioner, Sergeant Booth, with rape, carnal knowledge, sodomy, indecent assault in violation of articles 120, 125 and 134 of the Uniform Code of Military Justice (see, 10 U.S.C. § 920[a], [b]; §§ 925, 934), and giving alcoholic beverages to a minor in violation of Penal Law § 260.20(4). The victim was Booth's 13-year-old niece. The incident occurred on July 6, 1991 in the Village of Carthage, New York. Booth, represented by counsel, waived trial by military jury. Following a trial by a military Judge on January 12, January 30 and March 10, 1992, Booth was convicted of indecent assault in violation of article 134 of the Uniform Code of Military Justice and sentenced on March 10, 1992 to confinement at hard labor for two years at Fort Knox, Kentucky, reduced in rank, discharged from the service with a bad conduct discharge and ordered to forfeit pay. An Army Court of Military Review approved the findings and sentence on December 9, 1992, except for the bad conduct discharge.

In December 1991, the Jefferson County Grand Jury indicted Booth for rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, endangering the welfare of a child and incest. The charges related to the same conduct for which Booth was tried and court-martialled. Booth sought dismissal of the indictment on statutory double jeopardy grounds (see, CPL 40.20, 40.30). County Court denied the motion and the instant prohibition proceeding was commenced in the Appellate Division, which granted the writ. 193 A.D.2d 1128, 599 N.Y.S.2d 209. This Court granted leave to appeal.

In the second matter before this Court, also by its grant of leave to appeal, petitioner Bridgewater, a former sergeant in the United States Army, was indicted by a Jefferson County Grand Jury. Bridgewater was charged with two counts of murder committed on September 23, 1991. The victim was his two-month-old son. During the pendency of the indictment, Bridgewater gave testimony and entered a guilty plea before a military tribunal, which found him guilty of involuntary manslaughter by culpable negligence in violation of article 119 of the Uniform Code of Military Justice (10 U.S.C. § 919). He was sentenced to one-year imprisonment. On December 16, 1992, Bridgewater moved to dismiss the Jefferson County indictment on statutory double jeopardy grounds. County Court denied the motion. The instant prohibition proceeding was commenced in the Appellate Division, which granted the writ. 195 A.D.2d 1073, 602 N.Y.S.2d 579.

Appellant District Attorney argues that a general military court-martial does not bar a subsequent State criminal action because the military tribunal is not a court and that proceeding does not constitute a "trial." The argument urges us to conclude that the Uniform Code of Military Justice is merely a disciplinary code with different purposes and goals from the State Penal Law. The prosecutor also claims a State equal protection of the laws violation, justifying the prosecutions irrespective of the statutory bar arising from the statute. She does not dispute the fact that the offenses for which the soldiers were tried by court-martial stem from the same criminal events for which they were indicted.

The right not to be placed in jeopardy more than once for the same offense is a vital safeguard and "a fundamental ideal in our constitutional heritage" (Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707; see also, People v. Abbamonte, 43 N.Y.2d 74, 82, 400 N.Y.S.2d 766, 371 N.E.2d 485). The dual constitutional protection against double jeopardy, however, is not in issue in these cases (see, U.S. Const. 5th, 14th Amends.; N.Y. Const., art. I, § 6; Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306). Successive State and Federal prosecutions based on the same criminal transactions or overt acts, as occurred here, might not offend constitutional precepts (see, United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303; Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684).

In these cases, however, the procedural framework requires that we construe New York's additional and broader statutory double jeopardy protections (see, CPL art. 40; Matter of Abraham v. Justices of N.Y. Supreme Ct. of Bronx County, 37 N.Y.2d 560, 565, 376 N.Y.S.2d 79, 338 N.E.2d 597). State prosecutions are more restricted under the expansive statutory double jeopardy protections found in CPL 40.20 and 40.30, which offer more protection than the "dual sovereign" doctrine would tolerate (see, People v. Abbamonte, 43 N.Y.2d 74, 81, 400 N.Y.S.2d 766, 371 N.E.2d 485, supra; Matter of Abraham v. Justices of N.Y. Supreme Ct. of Bronx County, supra).

These statutory double jeopardy provisions, whose application to this novel context we must decide, provide the more intricate details against individuals being "twice prosecuted for the same offense" (CPL 40.20[1]. A "same offense" crime must include "essentially the same statutory elements or one must be a lesser included offense of the other" (Matter of Corbin v. Hillery, 74 N.Y.2d 279, 289, 545 N.Y.S.2d 71, 543 N.E.2d 714, affd sub nom. Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548). CPL 40.30(1) defines a previous prosecution as follows:

"[A] person 'is prosecuted' for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action either:

"(a) Terminates in a conviction upon a plea of guilty; or

"(b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn" (emphasis added).

Some guidance is provided by our recognition of the judicial nature of military tribunals in our second felony sentencing context. We have held that a court-martial adjudication may serve as a prior felony for purposes of second felony offender sentencing (see, People v. Benjamin, 22 N.Y.2d 723, 292 N.Y.S.2d 110, 239 N.E.2d 206, mot to amend ...

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8 cases
  • People v. Vasquez
    • United States
    • New York Court of Appeals
    • March 20, 1997
    ...and 40.30 do afford additional protections beyond that which the dual sovereign doctrine would require (Matter of Booth v. Clary, 83 N.Y.2d 675, 613 N.Y.S.2d 110, 635 N.E.2d 279), that aspect of the Double Jeopardy Clause is not implicated here. Article 40 does not expand double jeopardy pr......
  • People v. Abram
    • United States
    • New York City Court
    • September 9, 1998
    ...the Army. Finally, this Court notes this is not the kind of agreement made to avoid a double jeopardy problem. Booth v. Clary, 83 N.Y.2d 675, 613 N.Y.S.2d 110, 635 N.E.2d 279. The agreement in this case between the District Attorney and the military authorities can be distinguished from the......
  • People v. Childers, Docket No. 178825
    • United States
    • Court of Appeal of Michigan (US)
    • August 23, 1996
    ...rather than the judicial branch of the federal government. A similar result was recently reached in In re Booth v. Clary, 83 N.Y.2d 675, 678-680, 613 N.Y.S.2d 110, 635 N.E.2d 279 (1994). On appeal, the prosecutor has presented no colorable argument to the effect that a court-martial prosecu......
  • People v. Serrano
    • United States
    • United States State Supreme Court (New York)
    • December 2, 2014
    ...Traffic Violations Bureau is a court' within the meaning of [CPL § ] 40.30” (Reply Mem. p. 15 fn. 1). Relying on In re Booth v. Clary, 83 N.Y.2d 675, 613 N.Y.S.2d 110, 635 N.E.2d 279 (1994), Hill v. Eppolito, 196 Misc.2d 616, 766 N.Y.S.2d 509 (Sup.Ct., Madison County 2003), aff'd, 5 A.D.3d ......
  • Request a trial to view additional results
1 books & journal articles
  • Related civil litigation
    • United States
    • James Publishing Practical Law Books Criminal Defense Tools and Techniques
    • March 30, 2017
    ...many states have statutes barring prosecution after a different sovereign has prosecuted the same transaction. [ E.g., Booth v. Clary , 83 N.Y.2d 675, 680, 635 N.E.2d 279, 613 N.Y.S.2d 110 (1994) (reviewing New York’s statutory double jeopardy provisions and holding that U.S. court-martial ......

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