Cirillo v. Justices of Supreme Court In and For Kings County
| Decision Date | 19 November 1973 |
| Parties | In the Matter of Alphonse CIRILLO, Petitioner, v. The JUSTICES OF the SUPREME COURT of the State of New York held IN AND FOR the COUNTY OF KINGS and Eugene Gold, District Attorney of the County of Kings, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Harold Borg (Arnold E. Wallach, New York City, of counsel), for petitioner.
Eugene Gold, Dist. Atty. of Kings County (Martin H. Hershey, of counsel), pro se.
Before RABIN, P.J., and HOPKINS, MUNDER, LATHAM and SHAPIRO, JJ. SHAPIRO, Justice.
The petitioner, Alphonse Cirillo, seeks an order in the nature of prohibition to prevent the respondents (the Justices of the Supreme Court, Kings County, and the District Attorney of that county) from proceeding to try him on an indictment (No. 1961/1973) returned against him by a Kings County Grand Jury.
The indictment charges Cirillo and another (Vincent Murphy) with various degrees of possession of a dangerous drug. Cirillo is charged in counts 1 thru 3 as follows:
Count 1: 1st degree--possession of 16 ounces and more of heroin;
Count 2: 4th degree--possession of a narcotic drug (heroin) with intent to sell; and
Count 3: 6th degree--possession of a dangerous drug (cocaine).
Each possession is alleged to have occurred on or about March 15, 1973.
Cirillo, Murphy and several others were also prosecuted under a nine-count Federal indictment, in which Cirillo was charged as follows:
Counts 1 and 2: Possession with intent to distribute and distribution of one kilogram of heroin on or about January 18, 1973;
Count 7: Attempt to distribute half a kilogram of heroin on or about March 15, 1973; and
Count 9: Conspiracy to distribute and to possess with intent to distribute quantities of heroin, with overt act No. 10 alleging that on or about March 15, 1973, Cirillo was carrying a paper bag containing approximately half a kilogram of heroin.
Cirillo was tried and convicted in the United States District Court, Eastern District of New York. He now seeks by this application to prevent the State from prosecuting him on its indictment, alleging that he would thereby be twice placed in jeopardy for the same offense.
Although counts 1 and 2 of the Federal indictment mention a transaction on January 18, 1973, the only possession proved at that trial was one on March 15, 1973, the date involved in the State prosecution as well as in counts 7 and 9 of the Federal indictment. The evidence underlying both indictments was obtained through wiretapping conducted cooperatively by Federal and State authorities under State court orders and both prosecuting authorities rely upon the same evidence, acts and transactions. Cirillo was arrested by both Federal and State officers on March 15, 1973 and the contents of the bag in his possession at that time were analyzed by a New York Police Department chemist whose testimony was utilized by the Federal prosecutor in support of his successful effort to convict.
In opposition to the application, and Assistant District Attorney of Kings County alleges that his investigation of Cirillo began in September or October of 1972; that the investigation originally involved an alleged shipment of about 200 kilograms of heroin and taps on the telephone of Sorrentino (named in the Federal indictment) indicating a purchase of narcotics from Florida; that by reason thereof he discussed the matter with the Federal prosecutor on several occasions and it was agreed between them that the State indictment would be restricted to 'possession' counts, without alleging a conspiracy, and that the Federal indictment would be limited to charges of distribution and conspiracy. He then concludes that, under the circumstances of this case, conspiracy and distribution are different crimes from possession. We cannot agree.
The CPL provides as follows:
' § 40.30 Previous prosecution; what constitutes
'1. * * * a person 'is prosecuted' for an offense, within * * * 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, when the action * * *
'(b) Proceeds to the trial stage and a witness is sworn * * *.'
' § 40.20 Previous prosecution; when a bar to second prosecution
'1. A person may not be twice prosecuted for the same offense.
'2. A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:
'(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or
'(b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil; or
'(c) One of such offenses consists of criminal possession of contraband matter and the other offense is one involving the use of such contraband matter, other than a sale thereof * * *.'
It seems clear that under paragraph (c) of subdivision 2 of CPL 40.20 the Federal prosecution of Cirillo bars his prosecution under the State indictment as to counts 1 and 2....
To continue reading
Request your trial
-
People v. Ardito
...560, 376 N.Y.S.2d 79, 338 N.E.2d 597; Matter of Cirillo v. Justices, 34 N.Y.2d 990, 360 N.Y.S.2d 416, 318 N.E.2d 607, aff'g 43 A.D.2d 4, 349 N.Y.S.2d 129). Criminal usury in the first degree is defined by statute (Penal Law, § 190.42) as the act of knowingly charging, taking or receiving "a......
-
Wiley v. Altman
...; and Matter of Cirillo v. Justices of Supreme Ct. of State of N. Y., 34 N.Y.2d 990, 360 N.Y.S.2d 416, 318 N.E.2d 607, affg. 43 A.D.2d 4, 349 N.Y.S.2d 129 [all involving Federal narcotics The decision in Matter of Kessler v. Sherman, 41 N.Y.2d 851, 393 N.Y.S.2d 703, 362 N.E.2d 254, which di......
-
Klein v. Murtagh
...Brighenti v. Judges of New York Supreme Ct. of Richmond County, 41 A.D.2d 209, 342 N.Y.S.2d 123; Matter of Cirillo v. Justices of the Supreme Ct. of State of N.Y., 43 A.D.2d 4, 349 N.Y.S.2d 129; People v. Fernandez, 43 A.D.2d 83, 349 N.Y.S.2d 774). These cases are not in point since none of......
-
Abraham v. Justices of New York Supreme Court of Bronx County
... ... Indeed, we have recently entertained and reviewed two article 78 proceedings brought on similar grounds (Matter of Cirillo v. Justices of Supreme Ct. of State of N.Y., 34 N.Y.2d 990, 360 N.Y.S.2d 416, 318 N.E.2d 607; Matter of Abbamonte v. Justices of N.Y. Supreme Ct. of ... ...