People v. Abbamonte

• Decision Date: 17 November 1977
• Citation: 43 N.Y.2d 74,371 N.E.2d 485,400 N.Y.S.2d 766
• Parties: , 371 N.E.2d 485 The PEOPLE of the State of New York, Respondent, v. Ernest ABBAMONTE, Appellant. The PEOPLE of the State of New York, Respondent, v. George COUMOUTSOS, Appellant. The PEOPLE of the State of New York, Respondent, v. John CAMPOPIANO, Appellant. In the Matter of Alexander LISZNYIA, Appellant, v. Louis B. SCHEINMAN, as County Court Judge of the County of Sullivan, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 766

400 N.Y.S.2d 766

43 N.Y.2d 74, 371 N.E.2d 485

The PEOPLE of the State of New York, Respondent, v. Ernest ABBAMONTE, Appellant.

The PEOPLE of the State of New York, Respondent, v. George COUMOUTSOS, Appellant.

The PEOPLE of the State of New York, Respondent, v. John CAMPOPIANO, Appellant.

In the Matter of Alexander LISZNYIA, Appellant, v. Louis B. SCHEINMAN, as County Court Judge of the County of

Sullivan, et al., Respondents.

Court of Appeals of New York.

Nov. 17, 1977.

John L. Pollok, New York City, for appellants Ernest Abbamonte and George Coumoutsos.

Robert M. Morgenthau, Dist. Atty. (Brian Rosner and Peter L. Zimroth, New York City, of counsel), for the People.

George L. Santangelo, New York City, for appellant John Campopiano.

Joel M. Proyect, South Fallsberg, for appellant Alexander Lisznyia.

Emanuel Gellman, Dist. Atty. (Stephen F. Lungen, Monticello, of counsel), for respondent Louis B. Scheinman.

OPINION OF THE COURT

BREITEL, Chief Judge.

Four appellants, each previously convicted in Federal court for conspiracy to violate Federal drug laws, challenge, in separate appeals, their subsequent State prosecution for substantive drug offenses allegedly committed during the period of the conspiracy. In all four cases the Appellate Division rejected the challenge.

There is one common issue: whether prosecution of a substantive offense that could have been alleged and proved in support of a prior prosecution for conspiracy violates the CPL 40.20 (subd. 2) prohibition against separate prosecution of offenses arising out of the same "criminal transaction".

Appellants' prosecution is barred by New York's statute. In Matter of Abraham v. Justices of N. Y. Supreme Ct. of Bronx County, 37 N.Y.2d 560, 565-567, 376 N.Y.S.2d 79, 83-86, 338 N.E.2d 597, 599-600, the statute was applied to bar a State prosecution for possession of dangerous drugs, the identical possession having been alleged and proved as an overt act in a prior Federal conspiracy prosecution. So, too, where the substantive drug offense was not, but could have been, alleged and proved in the prior Federal conspiracy prosecution, subsequent State prosecution offends the statutory mandate. The Abraham rationale is ignored by distinctions dependent upon which overt acts, if any, are specified in the Federal conspiracy indictment or whether a plea of guilty, as opposed to a trial, disposed of the Federal conspiracy charge. Nor do such distinctions comport with logic or the present legislative notion of fair play.

Consequently, in each of the four cases there should be a reversal, the indictments in the three criminal actions should be dismissed, and prosecution of the remaining counts in the indictment to which the proceeding under CPLR article 78 is addressed should be prohibited.

Abbamonte, Coumoutsos, Campopiano

In April, 1973, as a result of a joint major Federal-State narcotics investigation, an indictment was filed against defendants Abbamonte, Coumoutsos, and Campopiano, along with 10 other large-scale heroin merchants, for conspiracy to violate Federal drug laws (see U.S.Code, tit. 21, § 846). To support the conspiracy count, covering a period from May, 1971 until the filing of the indictment, 10 particular incidents, including meetings and drug deliveries, were specified as overt acts. A number of substantive drug offenses were also charged.

The instant appeals arise out of a separate concurrent State prosecution in which the three defendants were charged with sale and possession of dangerous drugs. The indictment states that on each of January 8, 12, and 22, 1973, Abbamonte, Coumoutsos, and Campopiano possessed and sold over 16 ounces of heroin. These sales had neither been specified as overt acts of the Federal conspiracy nor had they been the subject of the substantive counts in that indictment.

The Federal charges were disposed of first. Abbamonte and Coumoutsos pleaded guilty, among other counts, to conspiracy. Campopiano, on the other hand, went to trial and was found guilty on all counts charged. Evidence at that trial, although not mentioned in the indictment, included testimony concerning the three January drug sales that are the subject of the State prosecution. All three defendants received substantial Federal sentences.

Relying on the double jeopardy provisions of CPL 40.20, Abbamonte, Coumoutsos, and Campopiano then moved to dismiss the State indictments. ¹ Following denial of their motions, each pleaded guilty in State court to selling a dangerous drug in the second degree (Penal Law, former § 220.40). The instant appeals are from the orders of the Appellate Division affirming the convictions.

Lisznyia

Petitioner Lisznyia was also investigated by a joint Federal-State narcotics team. He was first charged by the Federal Government with conspiring, between January 1 and November 18, 1976, to manufacture, possess, and distribute methamphetamine hydrochloride (see U.S.Code, tit. 21, § 846). No overt acts were specified in furtherance of the conspiracy.

The genesis of his appeal is a concurrent three-count State indictment. In the State prosecution, Lisznyia was charged with (1) possessing, on November 18, 1976, two ounces of methamphetamine; (2) conspiring with others, between June and November, 1976, to manufacture, possess, and sell methamphetamine; and (3) on November 18, 1976, criminally using drug paraphernalia.

Lisznyia pleaded guilty to the Federal conspiracy count and was sentenced to an indeterminate term of three years. Before pleading, however, he had obtained extensive disclosure from the Federal prosecutor. The disclosure detailed, principally, the search for and ultimate seizure of, on November 18, 1976, methamphetamines belonging to Lisznyia and his coconspirators.

After pleading guilty to the Federal conspiracy charge, Lisznyia applied to the Appellate Division under CPLR article 78 for judgment prohibiting the State prosecution. Like appellants Abbamonte, Coumoutsos, and Campopiano, he too relies on CPL 40.20. The petition was granted with respect to the conspiracy count, but otherwise dismissed, and Lisznyia appeals. ²

At the outset it should be noted that no Federal constitutional issue is involved. Under the "dual sovereignties" doctrine, successive State and Federal prosecutions based on the same transaction or conduct do not offend the double jeopardy prohibition (see Bartkus v. Illinois, 359 U.S. 121, 136-138, 79 S.Ct. 676, 3 L.Ed.2d 684, petition for reh. den. 360 U.S. 907, 79 S.Ct. 1283, 3 L.Ed.2d 1258; Matter of Abraham v. Justices of N. Y. Supreme Ct. of Bronx County, 37 N.Y.2d 560, 564-565, 376 N.Y.S.2d 79, 82-84, 338 N.E.2d 597, 599-600, supra ). The challenges raised turn, instead, on the application of CPL 40.20.

Under CPL 40.20, not only is the "dual sovereignties" doctrine ignored, but double jeopardy protection is extended, generally, to offenses arising out of a common event. Unless one of the enumerated exceptions is made out, "(a) person may not be separately prosecuted for two offenses based upon the same act or criminal transaction" (CPL 40.20, subd. 2). Restated, absent the statutory exceptions, no matter the numb of statutory offenses technically violated, or the number of jurisdictions involved, an accused is not to suffer repeated prosecution for the same general conduct (see Matter of Abraham v. Justices of N. Y. Supreme Ct. of Bronx County, 37 N.Y.2d 560, 565, 376 N.Y.S.2d 79, 83-84, 338 N.E.2d 597, 599-600, supra ; Denzer, Practice Commentaries, McKinney's Cons. Laws of N. Y., Book 11A, CPL 40.20, pp. 105-107).

Hence, the initial inquiry is whether a later prosecution of a defendant and a prior prosecution are based upon "the same act or criminal transaction". CPL 40.10 (subd. 2) defines "criminal transaction" as "conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture."

A determination that only one criminal transaction is at issue, however, does not automatically bar a second prosecution. Six exceptions qualify the general proscription (see CPL 40.20, subd. 2, pars. (a)-(f)). No contention is made that any but the first is relevant to these appeals (as to the pars. (b) and (c) exceptions see Matter of Abraham v. Justices of N. Y. Supreme Ct. of Bronx County, 37 N.Y.2d 560, 567, 376 N.Y.S.2d 79, 85-86, 338 N.E.2d 597, 601-602, supra. Under the paragraph (a) exception, separate prosecutions are permissible where "(t)he offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other."

These CPL provisions were recently considered in Matter of Abraham v. Justices of N. Y. Supreme Ct. of Bronx County, 37 N.Y.2d 560, 565-567, 376 N.Y.S.2d 79, 83-86, 338 N.E.2d 597, 599-602, (supra ). There, under similar circumstances, petitioners successfully raised their prior Federal drug conspiracy prosecution to prohibit a later State prosecution for drug possession. (See, also, Matter of Cirillo v. Justices of Supreme Ct. of State of N. Y., 34 N.Y.2d 990, 360 N.Y.S.2d 416, 318 N.E.2d 607, affg. 43 A.D.2d 4, 349 N.Y.S.2d 129.)

The court in Abraham first rejected the argument that the two offenses, conspiracy and possession, did not arise out of a single "criminal transaction" (p. 566, 376 N.Y.S.2d p. 84, 338 N.E.2d p. 600). Tracking the statutory definition of "criminal transaction", the court reasoned that the conduct constituting the possessory crime and the conspiracy was "so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture" (id.).

The People in Abraham then sought to invoke...