In the Matter of Kelly v. Bruhn

• Decision Date: 22 January 2004
• Docket Number: 94527
• Citation: 3 A.D.3d 783,2004 NY Slip Op 00315,771 N.Y.S.2d 561
• Parties: In the Matter of ERIC KELLY, Petitioner, v. J. MICHAEL BRUHN, as County Judge of Ulster County, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

3 A.D.3d 783

771 N.Y.S.2d 561

2004 NY Slip Op 00315

In the Matter of ERIC KELLY, Petitioner, v. J. MICHAEL BRUHN, as County Judge of Ulster County, et al., Respondents.

94527

Appellate Division of the Supreme Court of the State of New York, Third Department.

January 22, 2004.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506 [b] [1]) to prohibit respondents from trying petitioner in the County Court of Ulster County on an indictment charging him with sodomy in the third degree.

ROSE, J.

Following trial on six charges of sodomy and sexual abuse arising out of a 1998 incident involving a 15-year-old girl, the then 31-year-old petitioner was convicted of sodomy in the third degree only. Unlike each of the other charges, the charge of sodomy in the third degree did not require proof of forcible compulsion or lack of consent (compare Penal Law § 130.50 [1], § 130.65 [1] and § 130.55, with Penal Law § 130.40 [2]). On appeal, we found that one of the trial court's rulings required reversal and a new trial (People v Kelly, 288 AD2d 695 [2001], lv denied 97 NY2d 756 [2002]). When the People sought to retry the statutory sodomy charge, petitioner moved for dismissal on double jeopardy grounds. Respondent County Judge denied the motion and petitioner commenced this CPLR article 78 proceeding in the nature of prohibition on the grounds that statutory and constitutional principles of double jeopardy, as well as the doctrine of collateral estoppel, bar a retrial.

Petitioner's argument that a retrial will violate CPL 40.20 (2) is meritless. Where, as here, "proceedings [constituting a prior prosecution] are subsequently nullified by a court order . . . which directs a new trial of the same accusatory instrument, the nullified proceedings do not bar further prosecution of such offense under the same accusatory instrument" (CPL 40.30 [3]; see People v Adames, 83 NY2d 89, 93 [1993]; People v Gonzalez, 81 AD2d 838, 839 [1981], lv denied 54 NY2d 834 [1981]).

Nor is there any merit to petitioner's claim that a retrial is barred by constitutional double jeopardy principles. Such principles do not prevent successive prosecution of two offenses arising out of the same transaction where, as here, "each of the offenses contains an element which the other does not" (People v Wood, 95 NY2d 509, 513 [2000]; see Matter of Sharpton v Turner, 170 AD2d 43, 45-46 [1991], appeal dismissed 78 NY2d 1071 [1991], lv denied 79 NY2d 752 [1991]). Inasmuch as the charge on which petitioner will be retried does not include the element of forcible compulsion or lack of consent, but does include two elements missing from each of the charges of which he was acquitted, namely that the actor be 21 years old or older and the victim be less than 17 years old, there is no constitutional double jeopardy bar to a retrial.

Finally, while collateral estoppel would preclude the People from relitigating whether petitioner's sexual contact with the victim was forcible, we cannot agree that this estoppel prohibits a retrial here (see People v Hilton, 95 NY2d 950, 952 [2000]; People v Acevedo, 69 NY2d 478, 484-485 [1987]; People v Goodman, 69 NY2d 32, 37 [1986]). The jury's verdict in the first trial reflected a finding that neither forcible compulsion nor lack of consent had been proven beyond a reasonable doubt. Since neither forcible...