Klein v. Murtagh

• Decision Date: 20 May 1974
• Citation: 355 N.Y.S.2d 622,44 A.D.2d 465
• Parties: In the Matter of Frank R. KLEIN, Petitioner, v. Honorable John M. MURTAGH and Maurice Nadjari, Special Prosecutor, Respondents, Norman Archer, Intervenor. In the Matter of Leon WASSERBERGER, Petitioner, v. The JUSTICES OF the NEW YORK SUPREME COURT OF QUEENS COUNTY et al., Respondents, Norman Archer, Intervenor.
• Court: New York Supreme Court — Appellate Division

Page 622

355 N.Y.S.2d 622

44 A.D.2d 465

In the Matter of Frank R. KLEIN, Petitioner, v. Honorable John M. MURTAGH and Maurice Nadjari, Special

Prosecutor, Respondents, Norman Archer, Intervenor.

In the Matter of Leon WASSERBERGER, Petitioner,

v.

The JUSTICES OF the NEW YORK SUPREME COURT OF QUEENS COUNTY

et al., Respondents, Norman Archer, Intervenor.

Supreme Court, Appellate Division, Second Department.

May 20, 1974.

Shea, Gould, Climenko & Kramer, New York City (Milton S. Gould and Ronald H. Alenstein, New York City, of counsel), for petitioner Klein.

Gasthalter & Pollok, New York City, for petitioner Wasserberger.

Irving Anolik, New York City, for intervenor.

Maurice H. Nadjari, Deputy Atty. Gen., Sp. State Prosecutor (Stephen P. Sawyer and Walter F. Bottger, New York City, of counsel), respondent in person.

Louis J. Lefkowitz, Atty. Gen., of the State of New York, for respondent Murtagh.

Before SHAPIRO, Acting P.J., and COHALAN, CHRIST, BENJAMIN and MUNDER, JJ.

MUNDER, Justice.

The proceeding by petitioner Frank R. Klein, pursuant to article 78 of the CPLR in the nature of prohibition, is to prevent the respondents from prosecuting him under an indictment returned by the Extraordinary Special Grand Jury in Queens County. Two others also named in the indictment, Leon Wasserberger and Norman Archer, are seeking the same relief. Wasserberger has brought a separate article 78 proceeding and Archer has made motions to intervene in the two proceedings. Since the three individuals, their contentions and the relief they seek are intertwined, we have consolidated the two article 78 proceedings and granted Archer's motions to intervene.

The issue presented is whether prosecution of these three individuals under the Queens indictment is barred by reason of double jeopardy.

Prior to the return of the indictment under consideration here, Klein, Wasserberger and Archer were indicted by Federal authorities for alleged violation of section 1952 of title 18 of the United States Code, the so-called Travel Act. They were tried and convicted by a jury in the United States District Court for the Southern District of New York on January 29, 1973. The convictions, however, were overturned by the Court of Appeals, Second Circuit, with instructions that the indictment be dismissed (United States v. Archer, 486 F.2d 670). The Court of Appeals, in a sharp opinion by Judge Friendly, made very clear that the basis for reversal was the prosecution's failure to provide the 'Federal element of the crime charged, i.e., that the Government had failed to establish that the defendants 'used a facility in interstate or foreign commerce, for the purposes listed in § 1952(a)(3), in a sufficiently meaningful way to subject themselves to liability under the statute' (p. 680).

The petitioners and the intervenor contend in this court that to permit the State prosecution to continue will subject them to a second prosecution for the 'same offense' in violation of the Federal and State Constitutions, as well as CPL 40.20. This is not so. We need not engage in any painstaking comparison between the two indictments to reach the conclusion that the overt acts or transactions for which Klein and the others were tried in the Federal court are substantially the same as those for which they now face trial under the Queens indictment. But that does not mean the offenses charged are the same offenses as that term is used in the context of double jeopardy. Subdivision 1 of CPL 40.20 prescribes the New York double jeopardy doctrine in its purest and simplest form. It states that 'a person may not be twice prosecuted for the same offense.' This means the same in both fact and law (see Practice Commentary in McKinney's Consol. Laws of N.Y., Book 11A, CPL §§ 1 to 169, p. 105; Rothblatt, Criminal Law of New York, p. 57). It is interesting, in fathoming legislative intent, to see that a preliminary draft of the Criminal Procedure Law contained a provision defining 'same offense' as two prosecutions 'based upon a violation of the same statutory provision and upon the same facts' (see CPL 20.10, subd. 1; Proposed New York Criminal Procedure Law, 1967 draft, prepared by the Temporary Commission on Revision of the Penal Law and Criminal Code). In subdivision 1 of CPL 40.10 the term 'offense' is defined as 'committed whenever any conduct is performed which violates a statutory provision defining an offense; and when the same conduct or criminal transaction violates two or more such statutory provisions each such violation constitutes a separate and distinct offense * * *.'

At bar, the prosecutions are not the same in law because they are based upon separate and distinct statutes, namely, section 1952 of title 18 of the United States Code and sections 105.05, 200.00, 200.10, 200.20, 200.25 of the New York Penal Law. What is really happening is that the petitioners are being prosecuted for Two different offenses based upon the same act or criminal transaction. Under the circumstances of this case, the second prosecution is Not violative of any constitutional or statutory protection.

The Supreme Court of the United States squarely held in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684, that an acquittal in a Federal court of an alleged violation of a Federal statute, followed by prosecution in a State court, under State law, for the same acts, is not violative of the Fifth Amendment proscription against double jeopardy. In a companion case, Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729, the court held that the converse was also true, namely, a prior State prosecution did not bar a subsequent Federal prosecution for the same acts. To prohibit a State from prosecuting a defendant after a Federal prosecution would, to use the words of Mr. Justice Frankfurter in speaking for the majority in Bartkus, 'be a shocking and untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines. It would be in derogation of our federal system to displace the reserved power of States over state offenses by reason of prosecution of minor federal offenses by federal authorities beyond the control of the States' (Bartkus v. Illinois, Supra, 359 U.S. p. 137, 79 S.Ct. p. 685). The doctrine underlying Bartkus and Abbate is known as separate or dual sovereignty (see 3 Wharton's Criminal Evidence (13th ed.), § 661).

The doctrine has Not been discarded by the Supreme Court despite cases such as Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, which held the double jeopardy provisions of the Fifth Amendment to be applicable to the States, and Murphy v. Waterfront Comm. of N.Y. Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, which held the granting of immunity by a State to a witness in a State prosecution prohibited the Federal Government from using the witness' testimony in a Federal prosecution. These decisions have been cited by some as evidence that dual sovereignty has come into 'serious question' or is experiencing some erosion (see Pitler, New York Criminal Practice Under the CPL, p. 63; Martin v. Rose, 6 Cir., 481 F.2d 658, 660), but the fact remains that it is still a viable doctrine. It was recently acknowledged, although not specifically passed upon, in Waller v. Florida, 397 U.S. 387, 394, 90 S.Ct. 1184, 25 L.Ed.2d 435 and, as stated in Martin v. Rose, 481 F.2d 658, 660, '* * * we find that the Federal courts still recognize and affirm the continuing validity of Bartkus * * * (citations omitted).'

On this point, the Court of Appeals for the Second Circuit recently stated in United States v. Barone, 467 F.2d 247, 250:

'Appellants also claim that they were twice placed in jeopardy by being subjected to trial in a federal court after they were convicted of the same gambling offenses in a prior state proceeding. This argument is conclusively foreclosed by Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), and, contrary to appellants' argument, we find no evidence that the holding of that case has been 'eroded'.'

In an earlier case in which the double jeopardy argument was similarly raised by a defendant complaining of successive State and Federal prosecutions, the Court of Appeals for the Second Circuit in United States v. Feinberg, 383 F.2d 60, 71, cert. den. sub nom., Feinberg v. United States, 389 U.S. 1044, 88 S.Ct. 788, 19 L.Ed.2d 836, said:

'The first branch of this argument may be summarily dismissed by noting that neither of the essential elements of a plea of double jeopardy, I.e., an identity of successive sovereigns, Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); United States v. Wapnick, 315 F.2d 96 (2 Cir. 1963), cert. denied, 374 U.S. 829, 83 S.Ct. 1868, 10 L.Ed.2d 1052 (1965), and an identity of alleged offenses, 2 Wharton's Criminal Evidence, §§ 650, n. 20 (1966 Supp.), 653; Williams v. United States, 179 F.2d 644, 649 (5 Cir. 1950); United States v. Kramer, 289 F.2d 909, 913 (2 Cir. 1961), are present here' (emphasis added).

The court also rejected a claim of collateral estoppel, which is often intertwined with double jeopardy (see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469), with the following comments (United States v. Feinberg, Supra, 383 F.2d p. 71):

'While the doctrine of collateral estoppel is indeed applicable to criminal cases, Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 92 L.Ed. 180 (1948), the party estopped from relitigating the same issues must have been a party to the initial litigation. * * * (citations omitted). There is insufficient identity of interest between the state and federal governments in prosecuting intrastate and interstate offenses, respectively, United States v. Sutton, 245 F.Supp. 357, 359--360 (D.Md.1965), To warrant treating the Government here as a party, or even as privy, to appellant's initial litigation which resulted...