People ex rel. Pendleton v. Smith, C--50

• Decision Date: 16 July 1975
• Docket Number: C--50
• Parties: The PEOPLE of the State of New York ex rel. Edwin C. PENDLETON (#75--), Relator, v. Harold J. SMITH, Superintendent of Attica Correctional Facility, Respondent.
• Court: New York County Court

Page 316

371 N.Y.S.2d 316

83 Misc.2d 503

The PEOPLE of the State of New York ex rel. Edwin C.

PENDLETON (#75--C--50), Relator, v. Harold J. SMITH, Superintendent of Attica Correctional

Facility, Respondent.

Wyoming County Court.

July 16, 1975.

Louis J. Lefkowitz, Atty. Gen., for respondent; Lauren R. Wixson, Buffalo, of counsel.

Thomas G. Presutti, Rochester, for relator.

MEMORANDUM AND ORDER

JULIAN R. HANLEY, Judge.

One August evening the Pendletons entertained with a backyard clambake at their home. Finally, at an early morning hour the guests had all gone home, leaving Pendleton and his wife Virginia alone at the scene. Came morning and only Pendleton was left. Virginia was gone and only the barbecue pit knew. Later that day Virginia's charred remains were found in the ashes of the fire pit.

Pendleton was tried for her murder. At the conclusion of the People's evidence, the trial judge dismissed the charges, ruling that there was insufficient proof to corroborate his confession. Following this court dismissal, the District Attorney appealed.

New York Criminal Procedure Law § 450.20(2) allows such an appeal 'as of right by the people from . . . a trial order of dismissal.' On the appeal, the Appellate Division (People v. Pendleton, 42 A.D.2d 144, 345 N.Y.S.2d 773) overruled the trial judge's dismissal and found that there was sufficient evidence for the case for go to the jury. The Court of Appeals affirmed this decision.

So, pursuant to the statute and the rulings of the Appellate Courts, Pendleton was re-tried. At the second trial the evidence was completed and the jury found him guilty of Manslaughter First Degree. The result of this was that Pendleton was received in Attica January 28, 1975, where he is now serving his sentence of five to fifteen years. The defendant has filed a notice of appeal to the Appellate Division, Fourth Department from his present conviction.

Now came the decision of the U.S. Supreme Court, United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975) which held that if there is a judge's dismissal following a bench trial, the People cannot appeal. The Court ruled that if the prosecution were allowed to appeal the Court's dismissal this could result in a new trial after an acquittal, and would be unconstitutional because of double jeopardy.

A second Federal decision in the Eighth Circuit Court of Appeals, the so-called 'Wounded Knee' case, published shortly thereafter, was even more directly in point with Pendleton's situation. There, the Trial Judge had made an order of acquittal after all the proof was in. The U.S. Attorney appealed under the provisions of 18 U.S.C. § 3731. The Court held that the statute allowing the prosecution to appeal in this situation was unconstitutional, since it would allow a second trial after one acquittal and would be double jeopardy. United States v. Jaramillo, 8 Cir., 510 F.2d 808.

Apparently, the Jenkins decision and others alerted Relator to the idea that the similar New York statute (CPL 450.20) allowing the State to appeal was also unconstitutional. The present habeas corpus proceeding was filed claiming that the original appeal by the People in his case and the re-trial after the first dismissal was double jeopardy.

Now, after the re-trial is over, this double jeopardy question is being seriously raised for the very first time. Apparently it was obliquely mentioned when the case was before the Court of Appeals but the question was not passed on by them. This prisoner has had a trial, two appeals and a re-trial without any Court or Judge considering the question of double jeopardy. Now, after all of this has taken place, the Appellate Division, Fourth Department, where Pendleton's case was first appealed to, has now recognized that CPL 450.20 is unconstitutional and has ruled in two other cases that the prosecution cannot appeal from a trial order of dismissal.

People v. Piazza, 47 A.D.2d 990(9), 366 N.Y.S.2d 725; People v. Gesegnet, 47 A.D.2d 333, 366 N.Y.S.2d 518.

Strangely enough, a look at the old cases shows that since 1912 it has been the New York rule that a trial order of dismissal bars any appeal by the People because of double jeopardy. The rule was early born in a case involving a defendant named Goldfarb. He was charged with Disorderly Conduct. His trial began and one policeman had testified when the magistrate halted the trial, dismissed the charge and ordered a new Information to be filed. On the re-trial, the defendant pled double jeopardy but was overruled and convicted. The Appellate Division reversed the magistrate's decision, saying:

'It is well settled that where the court directs an acquittal, no matter how erroneously, the defendant cannot be subsequently tried on the same charge.' People v. Goldfarb, 152 App.Div. 870, 138 N.Y.S.2d 62 (1912).

This decision was affirmed by the Court of Appeals (213 N.Y. 664, 107 N.E. 1083) and has been consistently followed by the Courts ever since.

Nolan v. Court of General Sessions, 11 N.Y.2d 114, 227 N.Y.S.2d 1, 181 N.E.2d 751; Snee v. City of Cayuga, 31 A.D.2d 303, 297 N.Y.S.2d 414; People v. Gehlberd, 272 App.Div. 914, 70 N.Y.S.2d 819; Matter of Mack v. Court of General Sessions, 14 A.D.2d 98, 217 N.Y.S.2d 423; People v. Tallman, 193 Misc. 563, 84 N.Y.S.2d 359; People v. Nikiel, 2 Misc.2d 551, 153 N.Y.S.2d 953.

The framers of New York's present Criminal Procedure Law apparently chose to ignore the fact that, for all these years the New York courts have held that a re-trial after a trial order of dismissal would be double jeopardy and unconstitutional because they went ahead and enacted § 450.20 anyway.

If you read the Practice Commentary under CPL 450.20(2), the author does admit that Subdivision 2 'is new and doubtless controversial' and then refers you to the comments under CPL 290.10. There, the reviser at least mentions constitutionality, but says 'such a contention would not be sound.' Nothing in the statute itself or the Commentaries alerts you to the fact that this law violates both the State and Federal Constitution.

So what do we have here now? Virginia is dead and the jury has said that beyond any reasonable doubt this prisoner was the cause of her death and impromptu cremation.

After both of Pendleton's trials are all over, the Courts now admit that the statute allowing the prosecution's appeal was unconstitutional. That being so, his later conviction and present sentence is illegal and void.

But, 'Wait' now argues the State. 'The man never claimed double jeopardy before. He should have objected at his second trial. He has waived his right and must stay in jail, unconstitutional trial or not.'

What kind of reasoning is that?

You can go to the legal precedent shelf and see that there does exist a General rule that an accused can waive the protection against double jeopardy if he fails to interpose the defense at the second trial.

Why such a general rule? One thought is that a defendant should not be allowed to sit idly by during his trial and then, upon conviction, raise a special defense that he could have raised at the beginning of his trial. This, it has been said, would 'be termed trifling with the court.' People v. Bennett, 114 Cal. 56, 58, 45 P. 1013, 1014.

The idea behind this is that the Trial Judge should be alerted at the beginning to any double jeopardy claim so he can determine any factual issue and so avoid a second trial then and there.

Another theory calling for the double jeopardy defense to be raised at the trial level is to avoid the situation where there is a guilty plea and then often years later, the prisoner attempts to raise the double jeopardy question for the first time. Courts have generally resisted this.

People v. Allen, 18 A.D.2d 840, 238 N.Y.S.2d 70; People ex rel. Williams v. Follette, 30 A.D.2d 693, 292 N.Y.S.2d 190, Affirmed 24 N.Y.2d 949, 302 N.Y.S.2d 584, 250 N.E.2d 71; Thomas v. LaRuffa (New York Court of Appeals) 1975.

However, decisions on double jeopardy waiver have not been consistent in the courts. For example, in People v. DeMino, 35 A.D.2d 979, 317 N.Y.S.2d 929, the New...