Martinis v. Supreme Court

• Decision Date: 11 March 1965
• Citation: 15 N.Y.2d 240,258 N.Y.S.2d 65,206 N.E.2d 165
• Parties: , 206 N.E.2d 165 In the Matter of Gareth MARTINIS, Respondent, v. SUPREME COURT of the State of New York, Criminal Term, County of Bronx, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 65

258 N.Y.S.2d 65

15 N.Y.2d 240, 206 N.E.2d 165

In the Matter of Gareth MARTINIS, Respondent, v. SUPREME COURT of the State of New York, Criminal Term County of Bronx, et al., Appellants.

Court of Appeals of New York.

March 11, 1965.

Isidore Dollinger, Dist. Atty. (Bertram R. Gelfand, New York City, of counsel), for Isidore Dollinger and others, appellants.

Louis J. Lefkowitz, Atty. Gen. (Robert L. Harrison, Albany, Samuel A. Hirshowitz and Lester Esterman, New York City, of counsel), for Justices of the Supreme Court, Criminal Term, Bronx County, appellants.

Maurice Edelbaum and Philip R. Edelbaum, New York City, for respondent.

DYE, Judge.

This is an appeal by permission of the Appellate Division, First Department, from a unanimous order of that court granted in an article 78 proceeding prohibiting respondents-appellants from trying the petitioner on an indictment charging him with vehicular homicide on the ground that such a trial would subject him to double jeopardy (Matter of Martinis v. Supreme Ct. of State of N. Y., 20 A.D.2d 79, 244 N.Y.S.2d 949).

By way of background, it appears that on the evening on May 19, 1963, while petitioner Martinis was operating his automobile on the Henry Hudson Parkway, a public highway in the County of Bronx, he collided with another automobile in which five people were riding and all of whom were killed; the death car was thrown against a third automobile and its driver sustained severe personal injuries. Martinis was arrested. An information was thereafter filed containing four counts charging Martinis with violation of the Vehicle and Traffic Law, Consol.Laws, c. 71(1) driving while in an intoxicated condition (Vehicle and Traffic Law, § 1192); (2) reckless driving (Vehicle and Traffic Law, § 1190); (3) leaving the scene of an accident without reporting damage to property, and (4) without reporting injury to a person (Vehicle and Traffic Law, § 600). A prompt trial was sought and had in the Criminal Court of the City of New York before a panel of three Judges who found defendant 'not guilty' (July 1, 1963) and dismissed the information.

Thereafter, on August 2, 1963, the Grand Jury of Bronx County returned an indictment (No. 1005-63) charging Martinis with violation of section 1053-a of the Penal Law, Consol.Laws, c. 40, in five counts separately based on the death of each of the five people killed in the accident of May 19 and one count of assault in the third degree, based on the injury to the driver of the third car (Penal Law, § 244). In granting the within writ of prohibition, the court below accepted the petitioner's contention that in order to obtain a conviction for vehicular homicide, as charged in the indictment, proof of the criminal negligence essential for a conviction under section 1053-a of the Penal Law, that is, driving 'in a reckless or culpably negligent manner, whereby a human being is killed' necessarily will require the same proof as was adduced and found insufficient to sustain the charge of 'reckless driving' lodged under section 1190 of the Vehicle and Traffic Law; that in either situation the 'act' of driving recklessly is a common ingredient essential to the establishment of the misdemeanor of reckless driving (Vehicle and Traffic Law, § 1190) on which he stands acquitted and the criminal negligence resulting in death (Penal Law, § 1053-a) for which he is now awaiting trial; that to now subject petitioner to trial on the homicide charge would expose him to double jeopardy (N.Y.Const., art. I, § 6; U.S.Const., 5th Amdt.).

We discern no such danger. There is a distinct and separable operative difference in the definition of 'reckless driving', as used in section 1190 of the Vehicle and Traffic Law and section 1053-a of the Penal Law. The purpose of the one is to regulate and control the use and operation of vehicles on the public highway (Vehicle and Traffic Law, § 300). It defines a variety of acts or omissions either as 'infractions' or misdemeanors, which were unknown to the common law and are not presently included in the Penal Law. The Vehicle and Traffic Law has its roots deeply embedded in our legislative history. The present statute entitled 'Vehicle and Traffic Law' was enacted as chapters 775 and 776 of the Laws of 1959, effective October 1, 1960. Section 1190 of the Vehicle and Traffic Law prohibits 'reckless driving' which, under the definition enunciated, may be committed by the driving or use of a motor vehicle in either of two ways: in a manner which (1) 'unreasonably interferes with the free and proper use of the public highway' or (2) 'unreasonably endangers users of the public highway.'

In contrast to the violation of the rules and regulations controlling the use of the highways, the killing of a human being at common law and now by statute has always been regarded and treated as serious crime. Section 1053-a of the Penal Law is a homicide statute. It provides that a person is guilty of criminal negligence 'who operates or drives any vehicle of any kind in a reckless or culpably negligent manner, whereby a human being is killed' (added by L.1936, ch. 733). The criminal negligence thus defined connotes conduct quite different from the driving or using of a motor vehicle in a manner which unreasonably 'interferes with the free and proper use of the public highway' or 'unreasonably endangers users of the public highway', as provided in section 1190 of the Vehicle and Traffic Law. To be sure, both sections deal with the manner in which a motor vehicle is driven or used, but the manner in which it is driven or used, as the Legislature has been careful to point out, may result in two separate and distinct offenses, one prohibiting reckless driving in violation of rules and regulations affecting the use and operation of a vehicle in a manner which unreasonably 'interferes' or 'endangers', while the other has reference to conduct 'whereby a human being is killed'. In making this distinction, the Legislature was acting within its competence (McKinney's Consol.Laws, of N.Y Book 2, Constitution, art. III, § 1 and cases cited). It has long been recognized that crimes separate in nature, although arising out of the same transaction, may be defined and convictions thereon sustained without exposing defendant to double jeopardy (People v. Snyder, 214 App.Div. 742, 209 N.Y.S. 898, affd. 241 N.Y. 81, 148 N.E. 796; People v. Skarczewski, 287 N.Y. 826, 41 N.E.2d 99; People v. Di Lapo, 14 N.Y.2d 170, 250 N.Y.S.2d 261, 199 N.E.2d 361).

The Legislature was also justified in drawing the distinction it did between driving in a manner that unreasonably 'interferes' or 'endangers' as a reasonable exercise of the police power in the interests of public safety (Vehicle and Traffic Law, § 1190) and the manner of driving whereby a human being is killed as a crime (Penal Law, § 1053-a). In the enactment of those sections, the Legislature was careful to classify each under appropriate chapter headings and to employ language that would fully inform an accused of the nature and quality of the offense charged. A defendant charged with a traffic offense in an inferior local court of limited jurisdiction thus rests secure in the fact that he can only be prosecuted for a misdemeanor. He knows too that when charged with homicide (Penal Law, § 1053-a) he is being accused of serious crime, a felony, which can be prosecuted only in a court of general criminal jurisdiction. Notwithstanding these clear and explicit enactments, the Legislature, in an abundance of caution, and as a part of its major reorganization of the Vehicle and Traffic Law (L.1959, ch. 775) effective October 1, 1960, included subdivision (d) of section 1800 which in pertinent part provides: '(d) A conviction of violation of any provision of this chapter shall not be a bar to a prosecution for an assault or for a homicide committed by any person in operating a motor vehicle or motorcycle.' The language used is clear, understandable and explicit and, when read as meaning what it says, it effectively lays to rest any doubt as to the distinction between a violation under section 1190 of the Vehicle and Traffic Law and section 1053-a of the Penal Law. Quite obviously, its purpose and design were intended to remove the very possibility here contended for, that is, to prevent prosecution upon a charge arising under the Vehicle and Traffic Law as a misdemeanor, whatever the result, from becoming a bar to a prosecution for an 'assault' or for a 'homicide', as defined in the Penal Law. Nothing turns on the circumstance that the defendant-petitioner was acquitted, rather than convicted, in the Criminal Court of the City of New York on the traffic offenses, as charged. 'A single act may be an offense against two statutes; and if each statute requires proof of an additional fact for which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other' (Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421 422, 55 L.Ed. 489).

While we apply State law in a given case, it is always interesting to note what the courts of our sister States and the Federal courts do in like situations. Where, as here, there has been a prosecution in an inferior court on a minor traffic count, the courts of New Jersey hold that such prosecution, whatever the result, does not preclude subsequent prosecution for the more serious crime of homicide arising out of the same event, since, as they said, 'reckless driving' and 'death by reckless driving' are not the same offense (State v. Shoopman, 11 N.J. 333, 94 A.2d 493).

In California, which has a statute similar to section 1938, of the Penal Law it has been held that prior prosecution for reckless driving has no relationship to a subsequent indictment for homicide. 'They are not the same offenses nor is one, to use the language of the Penal Code, 'necessarily...