People v. Brown

• Citation: 386 N.Y.S.2d 848,353 N.E.2d 811,40 N.Y.2d 381
• Parties: , 353 N.E.2d 811 The PEOPLE of the State of New York, Appellant, v. King BROWN, Respondent.
• Decision Date: 17 June 1976
• Court: New York Court of Appeals

Page 848

386 N.Y.S.2d 848

40 N.Y.2d 381, 353 N.E.2d 811

The PEOPLE of the State of New York, Appellant, v. King BROWN, Respondent.

Court of Appeals of New York.

June 17, 1976.

Robert M. Morgenthau, Dist. Atty. (Peter L. Zimroth and Robert M. Pitler, New York City, of counsel), for appellant.

Susan E. Hofkin and William E. Hellerstein, New York City, for respondent.

JONES, Judge.

We now hold that CPL 450.20 (subd. 2) providing that the People may appeal a trial order of dismissal entered pursuant to CPL 290.10 is unconstitutional as violative of the right not to be placed twice in jeopardy for the same offense (N.Y.Const., art. I, § 6; U.S.Const., 5th Amdt.) if 'further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand'. (United States v. Jenkins,420 U.S. 358, 370, 95 S.Ct. 1006, 1013, 43 L.Ed.2d 250.)

We recently rejected a similar constitutional challenge to the People's statutory right to appeal such an order (People v. Fellman, 35 N.Y.2d 158, 359 N.Y.S.2d 100, 316 N.E.2d 569, mot. to amd. remittitur granted 35 N.Y.2d 853, 363 N.Y.S.2d 89, 321 N.E.2d 880). Subsequent to our decision in Fellman, however, the United States Supreme Court decided three cases which cast grave doubt as to the continuing viability of the Fellman decision (United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232; United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250, Supra, decided Feb. 25, 1975; Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265, decided less than a week later on March 3, 1975). ¹ We reach our decision today under constraint of these decisions, and accordingly overrule our holding to the contrary in People v. Fellman, 35 N.Y.2d 158, 359 N.Y.S.2d 100, 316 N.E.2d 569, Supra.

In this case defendant was charged in a one-count indictment with having committed the crime of bribery as defined in section 200.00 of the Penal Law which at the time of indictment provided: 'A person is guilty of bribery, in the second degree when he confers, or offers or agrees to confer any benefit upon a public servant upon an agreement or understanding that such public servant's * * * judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.' Atdefendant's trial the People presented proof that, following the arrest of one Angel Rodriquez, defendant appeared at the local precinct station house and offered Rodriquez' arresting officer money in return for the release of Rodriquez. Following dilatory tactics, the arresting officer succeeded in having defendant repeat the bribe offer in the presence of another officer while a tape recorder recorded the incriminating conversation.

At the conclusion of the People's case-in-chief, defendant moved pursuant to CPL 290.10 ² for a trial order of dismissal on the ground that a prima facie case of his guilt of bribery had not been made out. Defendant argued that the statute under which he had been indicted included as an element of the crime an 'agreement or understanding' shared by the public servant sought to be influenced as well as by the bribe offeror and that the People had failed to establish a prima facie case because of insufficiency of proof as to this element. The prosecutor agreed that no evidence had been introduced to show that the police officer had entered into a corrupt agreement or understanding but argued that the statute did not require such a showing. Under the prosecutor's analysis, the statutory term 'agreement or understanding' referred only to the defendant's state of mind and not to the state of mind of both the defendant and the public servant.

There was thus presented to the trial court a pure question of law, namely, what constitutes the crime of bribery? The court concluded that the 'phrase (agreement or understanding) embraces an exchange of promises by both persons or a mutual understanding that in return for the benefit or money offered to the public servant--the offeree--that person will take or will not take certain action or would make or not make a certain decision'. Since the People had offered no proof of such an agreement or mutual understanding, the court granted defendant's motion and entered a trial order of dismissal.

Pursuant to CPL 450.20 (subd. 2) ³ the People took an appeal to the Appellate Division. Less than 10 days before argument of that appeal, the United States Supreme Court handed down its decisions in United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232, Supra, and in United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250, Supra, establishing the principles by which it is to be determined in what circumstances the Government may appeal from an adverse ruling in a criminal trial without violating a defendant's right not to be placed twice in jeopardy for the same offense. Relying on those decisions, the Appellate Division unanimously dismissed the appeal by the People on its analysis that, if the People were to prevail on appeal, a new trial would be required and that a second trial would violate defendant's rights under the Federal double jeopardy clause. ⁴ The court stated its reasons as follows: 'We read (Jenkins and Wilson) as holding that only where there has been a jury verdict of guilty or findings by the court in a non-jury trial to support a verdict of guilty, but the trial court in either case then finds in the defendant's favor on a question of law, will appeal be permitted. In such case the Double Jeopardy Clause does not bar an appeal because errors of law may be corrected and the guilty verdict reinstated without another trial.' (48 A.D.2d at p. 98, 368 N.Y.S.2d at p. 174.)

On the present appeal, the People argue that the Appellate Division incorrectly distilled from the Jenkins and Wilson decisions that the only relevant consideration in determining whether the Government may appeal from an unfavorable criminal trial ruling is whether, if such appeal should prove successful, the defendant would be required to stand retrial. The People urge that whether a new trial will be required should be viewed as only one of two factors to be considered; of equal importance, it is urged, is whether the trial court's order was an 'acquittal' or otherwise based on factual findings 'favorable' to the defendant. While there is much in logic to support such an analysis (cf. People v. Sabella, 35 N.Y.2d 158, 359 N.Y.S.2d 100, 316 N.E.2d 569, Supra; Government Appeals of 'Dismissals' in Criminal Cases, 87 Harv.L.Rev. 1822, 1837--1841; Twice in Jeopardy, 75 Yale L.J. 262), we conclude that the Supreme Court by its recent trilogy of double jeopardy cases has expressly rejected any such analysis and has interpreted the Federal double jeopardy clause exactly as did the court below. As that clause, found in the Federal Constitution, is binding on the States (Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707), we accordingly are constrained to conclude that the order at the appeal Division dismissing the appeal to that court must now be affirmed.

Analysis of the limits imposed by the double jeopardy clause on the availability to the prosecution of appeals from trial orders of dismissal necessarily turns on ascertaining the purpose which that clause may be said to effectuate. 'Since the prohibition in the Constitution against double jeopardy is derived from history, its significance and scope must be determined, 'not simply by taking the words and a dictionary, but by considering (its) origin and the line of (its) growth'.' (Green v. United States, 355 U.S. 184, 199, 78 S.Ct. 221, 230, 2 L.Ed.2d 199 (Frankfurter, J., dissenting).) It thus serves to recognize that the prohibition against being placed twice in jeopardy actually encompasses three prohibitions: 'It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' (North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (notes omitted).) Each 'protection' serves different purposes and is surrounded by its own exceptions thereby complicating exposition of which rule attaches in different procedural situations. (For a critical analysis that 'the judiciary is content to apply the double jeopardy prohibition with only a reverent nod to its policies' and without scrutiny of these policies, see Twice in Jeopardy, 75 Yale L.J. 262.)

In the present case we are concerned with that function of double jeopardy which protects against retrial for the same offense following a previous acquittal thereon. In United States v. Green, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, Supra), the Supreme Court analyzed the purposes and policies underlying this aspect of double jeopardy: 'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' (See, also, United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543.) Thus the Supreme Court has identified two policies which underlie the prohibition against retrial following acquittal--prevention of harassment of criminal defendants and prevention of unjust convictions by subjection of defendants to repeated criminal trials until a fact finder may be found who will agree to convict. While both policies are equally expressive of the maxim at common law, Nemo debet bis vexari pro una et eadem causa ...