People v. Barrow

• Decision Date: 23 April 1964
• Citation: 42 Misc.2d 888,249 N.Y.S.2d 111
• Parties: The PEOPLE of the State of New York v. George BARROW, Defendant.
• Court: New York Supreme Court

Page 111

249 N.Y.S.2d 111

42 Misc.2d 888

The PEOPLE of the State of New York v. George BARROW, Defendant.

Supreme Court, Criminal Term, Queens County, Part I.

April 23, 1964.

Anthony F. Marra, New York City, for defendant for the motion by Bob M. Finkin, Kew Gardens, of counsel.

Frank D. O'Connor, Dist. Atty., Queens County, Eugene Feldman, Asst. Dist. Atty., of counsel opposed.

J. IRWIN SHAPIRO, Justice.

In answer to an indictment accusing him of felonious possession of a knife as a dangerous weapon (Penal Law, § 1897, subd. 8) defendant has heretofore pleaded that he is not guilty and he now moves 'for an Order to amend his prior plea of Not guilty to Not Guilty and Not Guilty by reason of a former conviction; and for an Order to inspect the minutes of the Grand Jury in this case, or in the alternative to dismiss the indictment on the grounds of Double Jeopardy as a matter of law, pursuant to Section 1938 of the Penal Law, Section 9 of the Code of Criminal Procedure, Article I, Section 6 of the Constitution of the State of New York and Amendment V of the Constitution of the United States'. ¹

In his moving affidavit the attorney for the defendant says:

'This motion is made for the purpose of permitting the defendant to amend his prior plea of Not Guilty, to Not Guilty and Not Guilty by reason of the fact that he has already been convicted of the offense charged in this indictment by Judgment of the Criminal Court of the City of New York rendered at Queens County on the 27th day of February, 1964 and for dismissal of this indictment as a matter of law on the grounds of a former conviction for the same offense.'

It is undisputed that the conviction specified in the defendant's plea resulted from his prosecution under an information (which he has put before the court) alleging, in pertinent substance, that he committed the offense of disorderly conduct in violation of the provisions of subdivision 2 of Section 722 of the Penal Law in that the defendant, at 6:05 P.M. on January 2, 1964 'at 74th St. and Roosevelt Ave. subway arcade', in the County of Queens, 'with intent to provoke a breach of the peace and under circumstances whereby a breach of the peace might be occasioned * * * did loiter * * * while holding a knife in his hand, blocking the free and proper passage, to the annoyance of passers-by.' Neither is it disputed by the People that in the course of defendant's trial for the offense thus charged, the substance of the police officer's testimony was that at the time and place in question he heard a scream, looked around and saw the defendant with a knife held in his hand, at or near the throat of an unidentified female; that people gathered in the area and that when the officer approached and demanded the knife of the defendant, the latter placed it in his pocket, from which the patrolman removed it.

At the conclusion of the trial, the defendant was found guilty and the sentence of the court (imposed on March 13, 1964) was that defendant be committed to the Workhouse for a period of 90 days.

The District Attorney does not question defendant's identity as the person convicted of disorderly conduct in the inferior court nor does he deny that the accusation made by the present indictment is based upon the same transaction involved in the former prosecution. Since, therefore, only issues of law are involved they are determinable by the court (People v. Smith, 172 N.Y. 210, 226, 64 N.E. 814, 818; People ex rel. Kammerer v. Brophy, 255 App.Div. 821, 822, 7 N.Y.S.2d 34, 35, affd., 280 N.Y. 618, 20 N.E.2d 1006).

So far as action remains to be taken by the court on this motion, it is denied in all respects because the offenses are not the same, within the meaning of the Constitution, nor is the act charged in each case the same, within the intendment of the provisions of Section 1938 of the Penal Law.

Underlying the lack of harmony in the application of what are thought to be the generally accepted principles by which identity of offenses is or ought to be determinable (22 C.J.S. Criminal Law § 278(1), p. 713) is the choice and enforcement of the policy of the several states and of the United States. The jeopardy is tested accordingly (Compare Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, with People v. Ercole, 4 N.Y.2d 617, 176 N.Y.S.2d 649, 152 N.E.2d 77; People ex rel. Di Lapo v. Tutuska, 27 Misc.2d 544, 217 N.Y.S.2d 124, affd. 11 A.D.2d 906, 202 N.Y.S.2d 271, affd. 9 N.Y.2d 910, 217 N.Y.S.2d 85, 176 N.E.2d 96 and People ex rel. Santangelo v. Tutuska, 19 Misc.2d 308, 192 N.Y.S.2d 350, affd. 11 A.D.2d 906, 205 N.Y.S.2d 1006, with State v. Cooper, 13 N.J .L. 361, 372, 373, 375). The perspective afforded by these cases does not, of course, facilitate the task but may serve to avoid complicating it further.

The meaning of the Constitutional verbiage conferring immunity from repeated jeopardy for the 'same offense' is taken in Ohio to be 'same offense, not the same transaction, not the same acts, not the same circumstances or same situation' (State v. Rose, 89 Ohio St. 383, 386, 106 N.E. 50, 51, L.R.A.1915A, 256; State v. Orth, 106 Ohio App. 35, 37, 153 N.E.2d 394, 396, appeal dismissed for lack of a constitutional question in 167 Ohio St. 388, 148 N.E.2d 917). Stated in another way, the prevailing concept of identity of offenses demands that the offenses charged in both cases be 'the same in law and in fact'. It follows that the plea of double jeopardy is without merit if the offenses are 'perfectly distinct in point of law, however nearly they may be connected in fact.' (Commonwealth v. Roby, 12 Pick. 496, 504, 29 Mass. 496, 504; Burns and Cary v. People, 1 Park.Cr. 182, 185; People v. Saunders, 4 Park.Cr. 196, 198; People ex rel. Fish v. Smith, 177 App.Div. 152, 156-157, 163 N.Y.S. 283, 286-287, affd. 221 N.Y. 590, 117 N.E. 1080) . On the other hand, the safeguard is not limited to the same offense by name or designation and is extended so as to forbid successive prosecutions for the same acts upon charges which, though based upon different statutes are elementally identical (see, e. g., People v. Goldfarb, 152 App.Div. 870, 873, 138 N.Y.S. 62, 64-66, affd. 213 N.Y. 664, 107 N.E. 1083; People ex rel. Ticineto v. Brewster, 241 App.Div. 467, 468, 273 N.Y.S. 16, 17; compare Driggers v. State, 137 Fla. 182, 188 So. 118, 120; Braswell v. Commonwealth, 339 S.W.2d 637, 638, Court of Appeals, Ky., 28 October 1960; Poteet v. State, 138 Tex.Cr.R. 9, 133 S.W.2d 581, 582-583). Conversely, if the offenses are elementally different, a prior conviction or acquittal of one is not a bar to a subsequent prosecution for the other (People v. Faden, 271 N.Y. 435, 443, 3 N.E.2d 584, 587; People ex rel. Kammerer v. Brophy, supra, 255 App.Div. 821, 7 N.Y.S.2d 34, affd. 280 N.Y. 618, 20 N.E.2d 1006; People v. Skarczewski, 178 Misc. 160, 163, 33 N.Y.S.2d 299, 302-303, affd. 287 N.Y. 826, 41 N.E.2d 99). 'Unless the first indictment were such as the prisoner might have been convicted upon, by proof of the facts contained in the second * * * an acquittal * * * [or conviction] can be no bar to the second'. (Burns and Cary v. People, supra, 1 Park.Crim. 182, 184; People v. Burch, 5 N.Y.Crim. 29, 30; People v. Bevins, 74 Misc. 377, 380, 134 N.Y.S. 212, 214, affd. 149 App.Div. 935, 134 N.Y.S. 1141; People v. Taft, 174 Misc. 1033, 1035-1036, 22 N.Y.S.2d 484, 487-488; People v. Josie, 206 Misc . 704, 134 N.Y.S.2d 283, mod. & affd. 286 App.Div. 995, 144 N.Y.S.2d 437; People v. Fennell, 10 A.D.2d 78, 197 N.Y.S.2d 327. 'The test * * * is whether each provision requires proof of an additional fact which the other does not' (Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489; Blockburger v. United States, 284 U .S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306; see, also, Harris v. State, 193 Ga. 109, 17 S.E.2d 573, 147 A.L.R. 980). 'A conviction or acquittal upon one indictment is no bar to a subsequent conviction * * * upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. ² The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.' (Morey v. Commonwealth, 108 Mass. 433, 434 quoted in People v. Skarczewski, 178 Misc. 160, 163, 33 N.Y.S.2d 299, 302, affd. 287 N.Y. 826, 41 N.E .2d 99, supra, italics added.) Although described as the 'same evidence test' and its variants, the basic principle measures the identity of offenses by elemental standards. ³ In that sense, '[a] test is set up which considers evidence and not the theory of the pleader' (People v. Silverman, 281 N.Y. 457, 462, 24 N.E.2d 124, 126).

Among the other 'exceptions' to the basic rule is the so-called 'essential ingredient' exception (see, e. g., State v. Barnes, 29 N.D. 164, 169-170, 150 N.W. 557; State v. Smith, 43 Vt. 324, 326-327) or 'lesser included offense doctrine' invoked by some courts to forbid second jeopardy for an offense which is a lesser component or ingredient of that first tried. At times, it is also used to bar a second prosecution for a greater offense after defendant had first been tried on the lesser except where the lesser offense was tried in a court without jurisdiction to try the greater (Comment, 65 Yale L.J. 339, 347, note 43).

By the application of the principles above discussed, I am persuaded that the offenses in this case are not identical in law. There was 'no connection between the two charges except that one was a direct cause of the other' (People v. Weinstein, 157 Misc. 183, 184, 283 N.Y.S. 150, 151). The gist of the disorderly conduct, proscribed by...