Di Lorenzo v. Murtagh

• Citation: 367 N.Y.S.2d 761,327 N.E.2d 805,36 N.Y.2d 306
• Parties: , 327 N.E.2d 805 In the Matter of Ross DI LORENZO, Respondent, v. John M. MURTAGH, as Presiding Justice of the Extraordinary Special Trial Term, Kings County, et al., Appellants.
• Decision Date: 01 April 1975
• Court: New York Court of Appeals

Page 761

367 N.Y.S.2d 761

36 N.Y.2d 306, 327 N.E.2d 805

In the Matter of Ross DI LORENZO, Respondent, v. John M. MURTAGH, as Presiding Justice of the Extraordinary Special Trial Term, Kings County, et al., Appellants.

Court of Appeals of New York.

April 1, 1975.

Maurice H. Nadjari, Sp. State Prosecutor (Barry M. Fallick and Bennett L. Gershman New York City, of counsel), appellant pro se, and for John M. Murtagh, appellant.

James M. La Rossa and Gerald L. Shargel, New York City, for respondent.

JONES, Judge.

The question is whether, in view of defendant's acquittal on two counts of perjury, he may be retried on five other counts as to each of which the trial court declared a mistrial because the jury could not reach a verdict.

Defendant was indicted on eight counts of perjury and one count of obstructing governmental administration. All counts relate to a meeting held on February 6, 1967 between defendant and Anthony Piazza, an Assistant Counsel of the New York-New Jersey Waterfront Commission. The indictment alleged, Inter alia, that at that meeting defendant sought improperly and injudiciously to influence the outcome of an investigation then being conducted by the Waterfront Commission concerning the infiltration of organized crime into the Brooklyn waterfront and the activities of a stevedoring company, American Stevedores, and one of its employees, Thomas Masotto.

The perjury counts were the outgrowth of sworn testimony given by defendant at two separate proceedings instituted by the Appellate Division, Second Department, with respect to defendant's conduct. As a result of a complaint by Mr. Piazza, the Appellate Division had ordered an investigation during the course of which defendant gave sworn testimony before a Referee with reference to his meeting with Mr. Piazza. Thereafter, on the basis of the Referee's recommendations, the Appellate Division had directed the institution of formal removal proceedings against defendant. These proceedings were conducted by a Justice of the Supreme Court, and again defendant gave sworn testimony with respect to his meeting with Mr. Piazza.

Counts 1 and 2 of the indictment charged that defendant swore falsely that the 'sole purpose' of the Piazza meeting was to screen memberships for the American-Italian Anti-Defamation League-- count 1 alleged false swearing before the Referee; count 2 before the Justice.

Counts 3 and 4 charged that defendant swore falsely that he and Mr. Piazza had discussed the American-Italian Anti-Defamation League at their meeting. Again, count 3 referred to defendant's testimony before the Referee; count 4, that before the Justice.

Counts 5 and 6 charged that defendant swore falsely that at the time he arranged the Piazza meeting he had no knowledge of any Waterfront Commission investigation of Thomas Masotto and American Stevedores. Here, too, count 5 related to his testimony before the Referee; count 6 to his testimony before the Justice.

Count 7 dealt with defendant's testimony before a Federal Grand Jury with respect to the Piazza meeting.

Count 8 charged that defendant had given irreconcilable and inconsistent testimony before the Referee and the Justice as to when he first knew that Thomas Masotto worked for American Stevedores.

Count 9, containing the obstructing governmental administration charge, was dismissed prior to trial.

At the conclusion of defendant's trial, after deliberating for some 20 hours, the jury returned a verdict of not guilty as to counts 3 and 4. At the same time the jury declared that it was unable to reach a verdict as to any of counts 1, 2, 5, 6, 7 and 8. The trial court accepted the partial verdict as to counts 3 and 4 and declared a mistrial as to the remaining counts.

When retrial was scheduled, defendant instituted the present article 78 (CPLR) proceeding for prohibition on the ground that retrial of the open counts, other than count 7 involving testimony before the Federal Grand Jury, was barred by the double jeopardy clause of the Federal Constitution and by CPL, McKinney's Consol.Laws, c. 11a, 310.70 (subd. 2). The Appellate Division, Second Department, entertained the proceeding, granted the petition on the merits, prohibited retrial of counts 1, 2, 5, 6 and 8 and dismissed those counts. The appeal is before us by permission. We conclude that the order of the Appellate Division should be reversed and the five challenged counts be reinstated.

At the threshold we note that the extraordinary remedy of prohibition lies to review double jeopardy claims (Matter of Kraemer v. County Ct. of Suffolk County, 6 N.Y.2d 363, 189 N.Y.S.2d 878; see Matter of State of New York v. King, 36 N.Y.2d 59, 364 N.Y.S.2d 879, 324 N.E.2d 351).

Here the issue turns on whether the perjuries charged were part of a single act and therefore could not be the subject of consecutive sentences if there were convictions on all counts.

Two sections of the Criminal Procedure Law and one section of the Penal Law are pertinent.

CPL 310.70 (subd. 2): ^* 'Upon the rendition of a partial verdict pursuant to subdivision one, a defendant may be retried upon an unresolved count of an indictment when such unresolved count is consecutive, as that term is defined in subdivision two of section 300.30, as to every count upon which the jury did render a verdict, whether of guilty or not guilty.'

CPL 300.30 (subd. 2): "Consecutive counts' means two or more counts of an indictment upon which consecutive sentences may be imposed in case of conviction thereon.'

Penal Law, McKinney's Consol.Laws, c. 40 (§ 70.25, subd. 2): 'When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences must run concurrently.'

The issue turns on the old question of when a criminal transaction is separable into distinct events justifying separate prosecution, separate conviction and consecutive sentences (e.g., People v. Gittelson, 18 N.Y.2d 427, 429, 276 N.Y.S.2d 596, 597--598, 223...