People v. Bryant

• Decision Date: 09 July 1998
• Citation: 677 N.Y.S.2d 286,92 N.Y.2d 216,699 N.E.2d 910
• Parties: , 699 N.E.2d 910, 1998 N.Y. Slip Op. 6987 The PEOPLE of the State of New York, Respondent, v. John BRYANT, Appellant. The PEOPLE of the State of New York, Respondent, v. Michael JONES, Appellant. The PEOPLE of the State of New York, Respondent, v. Dennis SIMS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 286

677 N.Y.S.2d 286

92 N.Y.2d 216, 699 N.E.2d 910, 1998

N.Y. Slip Op. 6987

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

The PEOPLE of the State of New York, Respondent, v. Michael JONES, Appellant.

The PEOPLE of the State of New York, Respondent, v. Dennis SIMS, Appellant.

Court of Appeals of New York.

July 9, 1998.

P.J. Carle, New City, for appellant in the first above-entitled action.

Michael E. Bongiorno, District Attorney of Rockland County, New City (Ellen O'Hara Woods and Lisa B. Cohen, of counsel), for respondent in the first above-entitled action.

Alex Smith, Middletown, for appellant in the second above-entitled action.

Michael E. Bongiorno, District Attorney of Rockland County, New City (Ellen O'Hara Woods and Lisa B. Cohen, of counsel), for respondent in the second above-entitled action.

Robert N. Isseks, Middletown, for appellant in the third above-entitled action.

Michael E. Bongiorno, District Attorney of Rockland County, New City (Ellen O'Hara Woods and Lisa B. Cohen, of counsel), for respondent in the third above-entitled action.

OPINION OF THE COURT

LEVINE, Judge.

The primary issue on this appeal requires us to decide whether, under New York's statutory double jeopardy provision (CPL 40.20), the prosecution of certain offenses contained in a State indictment is barred by the prior prosecution of a Federal indictment where, concededly, both prosecutions are based upon a single criminal transaction. For the reasons that follow, we conclude that the three challenged State offenses fall within the exception set forth in paragraph (b) of CPL 40.20(2) and, thus, the sequential State prosecution was lawful.

I.

On the morning of June 18, 1993, codefendants Michael Jones, Dennis Sims and John Bryant committed an armed robbery at the Marine Midland Bank in Pearl River, New York. After emptying the teller drawers of cash, the defendants absconded in a maroon Buick Le Sabre. ¹ Police Officer Steven Gentile pursued, and a confrontation occurred in a nearby school parking lot during which gunfire was exchanged. Defendants again fled, pursued by the officer and other officials from local, State and Federal agencies and, during the ensuing high speed chase, shots were repeatedly fired from defendants' vehicle at the pursuing authorities. Ultimately, defendants were apprehended.

Defendants were charged in a Federal indictment with: (1) bank robbery (18 U.S.C. § 2113[a]; § 2); (2) assaulting and placing in jeopardy the lives of persons by the use of dangerous weapons during the course of that robbery (18 U.S.C. § 2113[d]; § 2); (3) using and possessing certain firearms during the commission of a crime of violence punishable under Federal law (18 U.S.C. § 924[c]; § 2); and (4) conspiracy against the United States (18 U.S.C. § 371). Following a trial in United States District Court for the Southern District of New York, defendant Bryant was convicted on all four counts. Defendant Sims pleaded guilty to all four counts. Defendant Jones pleaded guilty to count two and to a lesser included offense of count four.

A State Grand Jury in Rockland County thereafter handed up an 18-count indictment stemming from the same occurrence underlying the Federal charges. Pertinent here, count one of the State indictment charged all three defendants, acting individually and in concert, with the attempted murder of Officer Gentile during the course of performing his official duties (Penal Law §§ 110.00, 125.27[1][a][i] ), and counts 17 and 18 charged defendants with the knowing possession of certain firearms which had been defaced for the purpose of concealment, prevention of the detection of a crime, or misrepresentation of the identity of the weapon (Penal Law § 265.02[3] ). ²

Each of the defendants moved for dismissal of the State indictment on the ground that prosecution was barred by statu tory double jeopardy (CPL 40.20[2] ) because all of the offenses were based upon the "same criminal transaction" (CPL 40.10[2] ). County Court granted defendant's motions to dismiss counts 2 through 16. The court, however, denied defendant's motions to dismiss counts 1, 17 and 18, concluding that the prosecution of defendants for those offenses fell within an exception to the statutory bar against a second prosecution (see, CPL 40.20[2][b] ).

Following a trial on the three remaining counts, defendants Jones and Sims were acquitted of the charge of attempted murder in the first degree, but convicted of the two criminal weapons possession counts for possessing both a defaced Intratec TEC-9 9 millimeter pistol and a defaced RG-40 .38 caliber revolver. Defendant Bryant was found guilty of attempted assault in the second degree (as a lesser included offense of first degree attempted murder [Penal Law § 120.05(1); see also, People v. Cabassa, 79 N.Y.2d 722, 729, 586 N.Y.S.2d 234, 598 N.E.2d 1, cert. denied sub nom. Lind v. New York, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563] ), as well as the two counts of criminal weapons possession involving the TEC-9 pistol and the RG-40 revolver.

Each defendant was sentenced as a predicate felon, on the two weapons possession counts, to two indeterminate terms of from 3 1/2 to 7 years, each sentence to run consecutive to the other, and to the Federal sentence previously imposed. Defendant Bryant received an additional indeterminate term of 2 to 4 years on his conviction of second degree attempted assault, to run consecutive to the sentence imposed on the criminal weapons possession counts. On appeal to the Appellate Division, that Court affirmed the convictions and sentences in separate memoranda (see, People v. Jones, 242 A.D.2d 641, 664 N.Y.S.2d 751; People v. Sims, 242 A.D.2d 642, 664 N.Y.S.2d 752; People v. Bryant, 242 A.D.2d 637, 664 N.Y.S.2d 748). A Judge of this Court granted each defendant leave to appeal.

In their principal contentions before us, all three defendants renew their statutory double jeopardy challenge to the subsequent State prosecution. In addition, defendants Jones and Sims argue that their State sentences on the weapons possession convictions should not have been imposed to run consecutively to each other, or to the Federal sentence.

II.

CPL 40.20, New York's statutory double jeopardy provision, generally prohibits successive prosecutions for two offenses based on a single act or criminal transaction (see, People v. Abbamonte, 43 N.Y.2d 74, 81, 400 N.Y.S.2d 766, 371 N.E.2d 485; see also, Matter of Schmidt v. Roberts, 74 N.Y.2d 513, 517, 549 N.Y.S.2d 633, 548 N.E.2d 1284; Matter of Abraham v. Justices of N.Y. Supreme Ct., 37 N.Y.2d 560, 565, 376 N.Y.S.2d 79, 338 N.E.2d 597). One of the exceptions to the statutory bar permits sequential prosecutions for offenses arising from the same criminal transaction if "[e]ach 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" (CPL 40.20[2][b]; see also, Matter of Kessler v. Sherman, 41 N.Y.2d 851, 393 N.Y.S.2d 703, 362 N.E.2d 254).

The first prong of the exception under CPL 40.20(2)(b) thus requires a comparison of the Federal and State charges at issue to determine whether each of the Federal offenses contains an element which is not an element of any State offense, and vice versa. As defined, the offense charged in count one of the Federal indictment required the Government to prove that defendants forcefully or violently took, from the person or presence of another, money or property in the possession of a Federal bank or other institution whose deposits are Federally insured (see, 18 U.S.C. § 2113[a]; see also, United States v. Sebetich, 776 F.2d 412, 426, reh. denied 828 F.2d 1020; United States v. Trevino, 720 F.2d 395, 400; United States v. Brown, 616 F.2d 844 [Federally insured status of funds is an essential element of the crime on which the jury should be instructed]; 2 Federal Jury Practice and Instructions [Criminal] § 49.02, at 736; § 49.03, at 737-741 [4th ed. 1990] ).

Count two required proof that, in the course of committing the robbery of a Federally insured institution, defendants assaulted or put in jeopardy the life of any person by the use of a dangerous weapon (see, 18 U.S.C. § 2113[d]; United States v. Nelson, 574 F.2d 277, cert. denied 439 U.S. 956, 99 S.Ct. 355, 58 L.Ed.2d 347; see also, United States v. Burnette, 698 F.2d 1038 [use of a gun in the commission of the robbery was an essential element of the offense under § 2113(d) ], cert. denied 461 U.S. 936, 103 S.Ct. 2106, 77 L.Ed.2d 312; 2 Federal Jury Practice and Instructions [Criminal] § 49.05, at 742; § 49.06, at 744-749; Pattern Criminal Jury Instructions, Report of Subcommittee [tit. 18 Offenses] § 105, at 145-146 [Fed.Jud.Cntr.1988] ).

Count three of the Federal indictment required the Government to establish that defendants used or carried a firearm while committing a felony "for which he may be prosecuted in a court of the United States" (see, 18 U.S.C. § 924[c] [emphasis supplied]; 2 Federal Jury Practice and Instructions [Criminal] § 49.05, at 743). Finally, in prosecuting defendants for conspiracy under count four of the indictment, the Government was required to prove the existence of an agreement to commit a Federal crime, that defendants intentionally joined in this agreement and that they did one of the overt acts charged in the indictment for the purpose of carrying out the conspiracy (see, 18 U.S.C. § 371; see also, United States v. Velez, 652 F.2d 258, 261-262; Pattern Criminal Jury Instructions, op. cit., § 62, at 77-79).

The statutory elements of the three counts in the State indictment on which defendants were tried are markedly different. As charged in count one, the People, in order to obtain a conviction of the attempted murder of Officer Gentile, were required to prove that defendants, with the intent to cause the death of a police...