People v. Boston, 2004 NY Slip Op 50484(U) (NY 5/27/2004), 2004KN004975.

CourtNew York Court of Appeals
Citation2004 NY Slip Op 50484(U)
Docket Number2004KN004975.
Decision Date27 May 2004


On January 22, 2004, the Honorable Charles A. Posner held these four defendants in summary contempt after they refused orders from court officers, police officers and the judge to stop fighting and yelling in a hallway adjacent to three courtrooms in the Kings County Criminal Courthouse. Judge Posner adjudicated each defendant in contempt of court and sentenced each defendant to 30 days' jail. The next day, the defendants were each charged in Criminal Court complaints with Reckless Endangerment in the Second Degree (Penal Law [PL] § 120.20), Obstructing Governmental Administration in the Second Degree (PL § 195.05), three counts of Criminal Contempt in the Second Degree (PL § 215.50[2]), and Disorderly Conduct (PL § 240.20[1]), based on these same events. The defendants each now move to dismiss the complaints on Double Jeopardy grounds.1 In the alternative, Boston moves to dismiss the charge of Reckless Endangerment for facial insufficiency.

For the reasons that follow, the Court grants the defendants' motions to dismiss the Penal Law Criminal Contempt charges and Boston's motion to dismiss the Reckless Endangerment charge for facial insufficiency. The remaining motions are denied.

The Facts

On the morning of January 22, 2004, Boston, Crespo, Street and Cobb engaged in a loud fight in the sixth floor hallway of the Kings County Criminal Courthouse, while proceedings were underway in three nearby courtrooms, All Purpose ("AP") Parts 3, 5 and 6. Defendants later gave differing accounts of why the fighting broke out: Boston claimed that he was leaving AP-6 when he was jumped by four others (Mins. of 1/22/04 at 3), while Cobb, Street and Crespo claimed that Boston started fighting with Crespo, and Cobb and Street went to Crespo's defense (id. at 6-7, 10-11, 14). The fighting and yelling were so loud that court officers from all three courtrooms went into the hallway to stop the commotion. This disrupted proceedings in AP-3, where Judge Charles A. Posner was in the middle of handling a case. As his courtroom emptied out and people told him that there was a riot in the hallway, Judge Posner left the courtroom and saw each of the defendants fighting and struggling with court officers and police officers who were trying to break up the fight (id. at 2-3, 4, 5-6, 9, 12-14). Judge Posner ordered the defendants to stop fighting and, when they did not, he held each of them in summary criminal contempt under the Judiciary Law. After giving each one an opportunity to address the court, Judge Posner executed sentences of 30 days' jail for each defendant.

Thereafter, each defendant was separately charged in a Criminal Court complaint with Criminal Contempt in the Second Degree, Reckless Endangerment in the Second Degree, Obstructing Governmental Administration in the Second Degree and Disorderly Conduct for the same events described above. The complaining witnesses in each case were Sergeant John Marsh, who is a court officer in AP-6, Sergeant Teresa Maguire, who is a court officer in AP-5, and Judge Posner.

The Double Jeopardy Motions
1. Defendants' Contentions

Both Boston and Cobb argue that People v. Colombo, 31 NY2d 947 (1972), bars their prosecution for Criminal Contempt under the Penal Law following the adjudication of summary contempt under Judiciary Law § 750(A)(1). Boston argues further that CPL §§ 40.20(2)(a) and 40.20(2)(b) bar his prosecution for Obstructing Governmental Administration and Disorderly Conduct for two reasons: because the acts that would establish those offenses are the same as those on which the contempt citation was based, and because offenses against "the administration of government" and "the public order" are "the very same harm or evil that is addressed by the judicial authority to summarily punish for contempt." (Wasserman Aff. at ¶¶ 5-8.) As to the charge of Reckless Endangerment, Boston argues that the facts supporting that charge are "identical and indistinguishable from those on which the other charges are based." (Id. at ¶ 9.)

In addition to relying on Colombo, Cobb and Street cite In re Corbin v. Hillery, 74 NY2d 279 (1989), and Cobb and Crespo cite People v. Wood, 95 NY2d 509 (2000), for the proposition that the present case must be dismissed. Indeed, Cobb claims that the People have conceded that he was already prosecuted, convicted and sentenced for the same conduct on which the current Penal Law charges are based. (Karpf Aff. at ¶¶ 9-10.)

Finally, both Boston and Cobb urge the Court to disregard all of the arguments advanced by the People, because they rely on federal cases that Cobb characterizes as "outdated" and "rendered obsolete due to being overturned by the New York Court of Appeals" in Colombo and People v. Leone, 44 NY2d 315 (1977). (Boston Mem. at 1, Karpf Reply Aff. at ¶ 2.)

2. The People's Contentions

The People argue first that the defendants were not previously prosecuted for contempt. Analyzing the "same elements" test of Blockburger v. United States, 284 US 299 (1932), the People contend that Double Jeopardy principles do not bar the current charges because the elements of Penal Law Criminal Contempt, Obstructing Governmental Administration, Reckless Endangerment and Disorderly Conduct are all different from the elements of Judiciary Law contempt. The People distinguish Colombo and Leone and rely on federal cases in which defendants were summarily punished for contempt of court that occurred in the presence of the Court, and then prosecuted for the substantive crimes which they committed simultaneously. The People also make a policy argument, asserting that if Double Jeopardy principles barred the present prosecutions, judges could not summarily punish criminal contempt occurring in their presence for fear of immunizing defendants from prosecution for substantive criminal offenses committed at the same time.

3. The Court's Analysis

Under the Federal Constitution, double jeopardy arises only upon separate prosecutions arising out of the same "offense" (US Const 5th, 14th Amends; Blockburger v. United States, 284 US 299). Dissatisfied with such limited protection, the Legislature in 1970 adopted a statute (CPL 40.20 [L 1970, ch 996]) providing a comprehensive protection against separate prosecutions for "two offenses based upon the same act or criminal transaction" (CPL 40.20(2); see, Matter of Abraham v. Justices of N.Y. Supreme Ct., 37 NY2d 560, 565).

People v. Latham, 83 NY2d 233, 237 (1994); see also Matter of Booth v. Clary, 83 NY2d 675, 678-79 (1994)("State prosecutions are more restricted under the expansive statutory double jeopardy protections found in CPL 40.20 and 40.30"). In relevant part, CPL § 40.20(2) provides that:

A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:

(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or

(b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil; . . .

In relevant part, CPL § 40.30(1) provides that:

[A] person is "prosecuted" for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state . . . and when the action either:

(a) Terminates in a conviction upon a plea of guilty; or

(b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn.

A. The Penal Law Contempt Charges Must Be Dismissed.

The People appear to be correct that the defendants have never previously been prosecuted for their conduct in this courthouse on January 22, 2004, as the term "prosecuted" is defined in CPL § 40.30 (See Peo's Mem. at 6, 10; Peo's Aff. in Response to Defts' Reply at ¶ 3). The summary contempt proceedings were not initiated by accusatory instruments, did not terminate in either a trial or a guilty plea, and no witnesses were sworn. Rather, after Judge Posner personally witnessed the fighting and struggling going on in the hallway outside the courtrooms, he directed the defendants to stop, held each defendant in contempt when they disregarded his order and kept fighting and struggling, gave each defendant an opportunity to address the court, and then executed sentence.2

Nevertheless, the cases cited by the defendants make it clear that they cannot be prosecuted now for Criminal Contempt under the Penal Law for the same conduct for which Judge Posner has already held them in summary contempt under the Judiciary Law. In People v. Colombo, 31 NY2d 947, 949 (1972), the Court of Appeals held that a defendant who had previously been punished for contempt of court under Judiciary Law § 750, for refusing to testify before the Grand Jury despite a grant of immunity, could not be indicted "for the same act and offense." The Court held that "[t]the same evidence proves the Judiciary Law contempt for which defendant was previously punished and the Penal Law contempt charged in the indictment, and the elements of the two contempt charges are the same." Id. Because Colombo's punishment under the Judiciary Law was for criminal contempt, the Double Jeopardy clause barred his subsequent indictment under the Penal Law. Id.3 Colombo therefore must stand for the proposition that a summary criminal contempt proceeding under the Judiciary Law is a prosecution for purposes of CPL § 40.20 analysis.4 See People v. Leone, 44 NY2d 315, 319 (1978) (Fuchsberg,...

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