DeCanzio v. Kennedy

• Decision Date: 06 April 1979
• Parties: In the Matter of the Application of Albert J. DeCANZIO, Jr., Petitioner, v. Hon. Robert P. KENNEDY, Justice of the Supreme Court and Hon. Lawrence T. Kurlander, District Attorney of the County of Monroe, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 513

415 N.Y.S.2d 513

67 A.D.2d 111

In the Matter of the Application of Albert J. DeCANZIO, Jr. Petitioner, v. Hon. Robert P. KENNEDY, Justice of the Supreme Court and Hon. Lawrence T. Kurlander, District Attorney of the County of Monroe, Respondents.

Supreme Court, Appellate Division, Fourth Department.

April 6, 1979.

Thomas Cocuzzi, Rochester, for petitioner (Thomas Cocuzzi and David A. Murante, Rochester, of counsel).

Robert Abrams, Atty. Gen., Albany, for respondent Kennedy (John Warner, Jr., Albany, of counsel).

Lawrence T. Kurlander, Dist. Atty., Rochester, respondent (Howard Relin, Rochester, of counsel).

Before SIMONS, J. P., and SCHNEPP, CALLAHAN, DOERR, and WITMER, JJ.

SIMONS, Justice Presiding:

Petitioner has been convicted of murder and his conviction has been affirmed on appeal (People v. DeCanzio, 53 A.D.2d 1065, 387 N.Y.S.2d 340, lv. to app. den. 40 N.Y.2d 849, 387 N.Y.S.2d 1039, 356 N.E.2d 485). The judgment was subsequently vacated, however, because of newly discovered evidence (CPL 440.10, subd. 1, par. (g)), and in this article 78 proceeding petitioner seeks to prohibit respondents, the Justice to whom the case is assigned for trial and the District Attorney, from proceeding, claiming that his retrial places him twice in jeopardy (U.S.Const. 5th, 14th Amdt.; Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; N.Y.Const. art. I, § 6, CPL 40.20, et seq.).

Prohibition is an appropriate remedy for one threatened with double jeopardy (Matter of DiLorenzo v. Murtagh, 36 N.Y.2d 306, 309, 367 N.Y.S.2d 761, 762, 327 N.E.2d 805, 806; Matter of Kraemer v. County Court of Suffolk County, 6 N.Y.2d 363, 189 N.Y.S.2d 878, 160 N.E.2d 633; Matter of Forte v. Supreme Ct. of State of N.Y., 62 A.D.2d 704, 406 N.Y.S.2d 854; Matter of Cardin v. Sedita, 53 A.D.2d 253, 255, 385 N.Y.S.2d 667, 669), but such relief is unwarranted in the present proceeding. The petition should be granted only to the extent that the prosecution is to proceed to trial upon the original indictment, # 32/1975, which is hereby reinstated. The superseding indictment # 531/1978, was obtained without court permission after the judgment of conviction was vacated, and is a nullity (see CPL 40.30, subd. 3; but see CPL 210.20, subd. 4).

Briefly, these are the facts:

In 1973 petitioner and Charles Monachino, with others planned a robbery of the Irondequoit office of the Department of Motor Vehicles. The actual crime was performed by Ernest White and Reginald Hawkins, using White's car for transportation. During the robbery White and his car were identified by witnesses and a warrant for his arrest was subsequently issued. The conspirators feared that White would talk if he was arrested and they summoned him to the garage of the construction company where they worked. Telling him that they intended to make it look as if he had been kidnapped and thus allay suspicion of him, petitioner and Monachino tied up White with his permission, placed him in the trunk of a car belonging to petitioner's wife, and petitioner then fired three bullets into his head. White's body was dumped into a manhole where it was discovered some months later.

The principal witness at petitioner's murder trial was Charles Monachino. After receiving immunity, he testified in detail concerning the robbery of the motor vehicle office and the murder of White. Throughout the investigation, in his testimony before the Grand Jury and at trial, Monachino contended that although he knew after the robbery that White would be killed sometime, he did not know that the murder was planned on the night it occurred. Based upon Monachino's testimony, the trial jury was charged that if Monachino was an accomplice in the White murder, his testimony must be corroborated. After petitioner's conviction became final, Monachino recanted and swore that his testimony at the trial was false. He claimed that in truth he had participated in a meeting held prior to the killing at which White's murder was planned. This additional fact was highly significant for if Monachino had helped to plan the killing and participated in it, as he now contends, he was an accomplice as a matter of law and defendant was entitled to an appropriate charge that Monachino's testimony was not sufficient to convict unless it was corroborated (CPL 60.22, subd. 1).

The testimony of one other witness at petitioner's murder trial, that of Thomas Wheeler, ^* is also important to disposition of this proceeding. Wheeler was being held in the Monroe County Jail on a rape charge at the same time that petitioner and Reginald Hawkins (White's partner in the robbery of the motor vehicle office) were there. Wheeler testified at petitioner's murder trial that petitioner and another planned to kill Hawkins in jail and that petitioner asked him to act as a lookout while they did it. Subsequent to petitioner's conviction, Wheeler also recanted and swore that officers of the Monroe County Sheriff's Department suborned his trial testimony by physical abuse and by promising to help him obtain a favorable sentence on this rape charge.

After petitioner's conviction became final, he instituted a proceeding pursuant to section 440.10 of the Criminal Procedure Law seeking to vacate his conviction because of misconduct by the police and prosecution and because of newly discovered evidence. An extended hearing was held before Judge Celli in County Court, after which the judge ordered the judgment of conviction vacated because of newly discovered evidence, i. e., Monachino's recantation (CPL 440.10, subd. 1, par. (g); and see People v. Shilitano, 218 N.Y. 161, 170, 112 N.E. 733, 735). The court found further that Monachino's present version of the killing was true and that he was, therefore, an accomplice in the White murder as a matter of law. The court made no finding on petitioner's allegations of misconduct by the Sheriff's Deputies or members of the District Attorney's staff. A new trial was ordered and the case has been assigned to respondent Justice Kennedy for disposition.

The general principles of double jeopardy are well known. The jeopardy clauses of the Federal and State Constitutions are "to protect the defendant's 'basic human right not to be harassed, or perhaps even impoverished, by successive prosecutions for the same offense' " (Matter of Cardin v. Sedita, 53 A.D.2d 253, 256, 385 N.Y.S.2d 667, 669); by means of multiple trials, multiple punishments and deliberate efforts by the prosecution to find a jury or court that will convict the defendant of the charge as the prosecutor desires. As the Supreme Court has stated:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

(Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199).

The principle of double jeopardy does not, however, always foreclose the retrial of a defendant on the same charge. A defendant's right to have his trial completed by one tribunal must "in some instances be subordinated to the public's interest in fair trials designed to end in just judgments" (Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974). Thus, a second trial may be had because of the illness of the judge, jurors, witnesses or necessary court personnel (People v. Kelly, 9 N.Y.2d 697, 212 N.Y.S.2d 755, 173 N.E.2d 679; People ex rel. Epting v. De Voe, 309 N.Y. 818, 130 N.E.2d 616; People ex rel. Brinkman v. Barr, 248 N.Y. 126, 161 N.E. 444); after the jury is unable to reach a verdict (United States v. Perez, 22 U.S. 579, 9 Wheat. 579, 6 L.Ed. 165); or where the trial ends at defendant's request because of trial error or because of a legal defect in the proceedings (United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65; Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80; United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267; People v. Key, 45 N.Y.2d 111, 408 N.Y.S.2d 16). A defendant has a valued right to have a single trial, but when he affirmatively adopts a course of action by appeal, motion or mistrial, in which he requests that his case be heard by another judge or jury, he cannot use the Double Jeopardy Clause to erect a barrier to a second prosecution. If, on the other hand, the proceedings have terminated, rightly or wrongly, in the defendant's favor with a finding of evidentiary insufficiency on the issue of guilt or innocence, he may not again be placed in jeopardy. The critical question is whether the order terminating the first trial "contemplates an end to all prosecution of the defendant for the offense charged" (Lee v. United States, supra, 432 U.S. p. 30, 97 S.Ct. p. 2146). If the dismissal ends the prosecution in defendant's favor, reprosecution is not permitted. If the dismissal is the "functional equivalent" of a mistrial, jeopardy principles do not prevent reprosecution (see United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65, 74-77; People v. Key, supra, p. 116, 408 N.Y.S.2d 16).

Finally, and relevant to this proceeding, reprosecution may be foreclosed on double jeopardy grounds if the first trial or judgment is void because obtained in violation of the defendant's right to be accorded due process, e. g., the indictment has been dismissed because of police abuses (see People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714) or prosecutorial overreaching (see United States v. Martin, 561 F.2d 135, 138-140; United States v. Kessler, 530 F.2d 1246, 1256-1258). The necessary finding in this respect is that the government has been guilty of gross...