People v. Cornier
| Citation | 249 N.Y.S.2d 521,42 Misc.2d 963 |
| Court | United States State Supreme Court (New York) |
| Decision Date | 07 May 1964 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Louis CORNIER, Defendant. |
Gilbert Ramirez, Brooklyn (Alan D. Oboler, Brooklyn, of counsel), for the motion.
Edward S. Silver, Dist. Atty., Kings County, Brooklyn, in opposition.
The defendant was indicted on February 6, 1964 for the crime of unlawfully operating and driving a motor vehicle upon a public highway while in an intoxicated condition, as a felony. The indictment charges that on or about December 9, 1963, in the County of Kings, he unlawfully operated and drove a certain motor vehicle on Graham Avenue and Varet Street while in an intoxicated condition.
It appears that at the time and place charged in the indictment the defendant was also charged with driving without a license in violation of Article 19, section 501, subdivision 4 a of the Vehicle and Traffic Law. A summons was issued returnable in the Criminal Court of the City of New York, Brooklyn Traffic Division. A violation of the provisions of Article 19 of the Vehicle and Traffic Law is a misdemeanor. The defendant thereafter entered a plea of 'not guilty' to said charge of driving without a license and appeared for trial on January 30, 1964 and was found 'not guilty' after a trial. Subsequent to said acquittal the defendant was indicted as aforesaid.
The defendant now moves to dismiss the indictment by reason of the acquittal in the Criminal Court of the City of New York and claims that to place the defendant on trial on the indictment would constitute double jeopardy in violation of his constitutional rights, both federal and state. As authority for such contention the defendant cites Application of Martinis, (20 A.D.2d 79, 244 N.Y.S.2d 949). The defendant further urges that if the court should determine adversely to him on the issue of double jeopardy, that under the rule of collateral estoppel the instant prosecution should be barred.
The first question to be determined is whether or not the acquittal on the charge of 'driving without a license' constitutes former jeopardy barring the prosecution of the indictment.
While a person may not be placed in jeopardy twice for the same offense (People v. Silverman, 281 N.Y. 457, 24 N.E.2d 124), it does not follow that a person may not be convicted of serveral crimes arising out of the same incident. If the crimes are separate and distinct as a matter of law, a defendant may be convicted of each, although the facts may be closely related (People v. Fennell, 10 A.D.2d 78, 197 N.Y.S.2d 327; People ex Rel. Moskoff v. Weinstock, 21 Misc 2d 14, 55 N.Y.S.2d 330; People ex rel. Kwiatkowski v. Trenkle, 169 Misc. 687, 9 N.Y.S.2d 661; People ex rel. Maurer v. Jackson, 2 N.Y. 2d 259, 159 N.Y.S.2d 203, 140 N.E.2d 282).
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 (People v. Roderman, 34 Misc.2d 497, 229 N.Y.S.2d 209; Morey v. Commonwealth, 108 Mass. 433, 444).
The crimes charged in the prosecution in the Criminal Court and in this court are distinct as a matter of law (People v. Skarczewski, 178 Misc. 160, 33 N.Y.S.2d 299, affd. 287 N.Y. 826, 41 N.E.2d 99). The gravamen of the charge of driving while intoxicated would be the intoxication whereas the gravamen of the charge of driving without an operator's license would be the failure to have a legal license. The proof necessary to establish the defendant's guilt would be different in each case. While it is true that the operation of the automobile is one of the evidentiary facts which would be required to be proved on each charge, a conviction on either one could not rest on this fact alone. In the prosecution in the Criminal Court, in addition thereto, the People would be required to establish that the defendant was an unlicensed operator and in the prosecution on the indictment the prosecution would have to establish that the defendant was also intoxicated.
The District Attorney does not deny that the accusation made by the present indictment is based upon the same transaction involved in the former prosecution in the Criminal Court. Since only issues of law are involved, they are determinable by the court .
The holdings in Martinis (20 A.D.2d 79, 244 N.Y.S.2d 949, supra) can be distinguished from the facts in this case. In Martinis the court held that a person who has been tried and acquitted upon an information charging hin with the misdemeanor of reckless driving (Vehicle and Traffic Law, § 1190), and driving while intoxicated and leaving the scene of an accident (Vehicle and Traffic Law, § 600), cannot constitutionally be subjected to the double jeopardy of a trial for the same occurrence. In Martinis the defendant was acquitted on these charges in the Criminal Court and thereafter indicted and charged with the felony of operating a motor vehicle in a reckless or culpably negligent manner whereby a human being was killed (Penal Law, § 1053-a) and with assault in the third degree consisting of operating a vehicle in a culpably negligent manner whereby a person suffered bodily injury (Penal Law, § 244). The court held that to try the defendant on the felony indictment would subject him to double punishment because all of the evidence which would be necessary to convict the defendant under the indictment was admissible on the trial of the information charging him with reckless driving of which he was acquitted. The court held that the standard of proof required to prove a violation of section 1190 of the Vehicle and Traffic Law, and the standard required to prove a violation of that portion of section 1053-a of the Penal Law are the same. Applying the test laid down in People v. Silverman (281 N.Y. 457, 24 N.E.2d 124, supra), the court held that both reckless driving and criminal negligence in the operation of a motor vehicle require as an essential element that the driver be operating the vehicle in a manner evincing a reckless disregard for the consequences or a reckless disregard for the safety of others using the public highways. To permit a trial and indictment would necessarily be a retrial of charges of reckless driving, which must be found to exist as a condition precedent to liability under section 1053-a of the Penal Law. This would constitute double jeopardy. The facts in this case are entirely different. While it is true that the charge of which the defendant was acquitted and the crime charged in the indictment arose out of the same incident, they are separate and distinct as a matter of law (People v. Skarczewski, 178 Misc. 160, 33 N.Y.S.2d 299, affd. 287 N.Y. 826, 41 N.E.2d 99, supra).
This court finds that the crime charged in the prosecution in the Criminal Court and the crime charged on the instant indictment are separate and distinct as a matter of law because the offenses are not the same within the meaning of the Constitution nor is the act charged in each prosecution the same within the intendment of the provisions of section 1938 of the Penal Law. 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 (Morey v. Commonwealth, 108 Mass. 433, supra; People v. Skarczewski, supra). Thus, to place the defendant on trial on the above indictment would not constitute double jeopardy and the motion to dismiss the indictment on that ground is denied.
However, the defendant's contention that the prosecution on the present indictment is barred because of the rule of collateral estoppel has merit. In addition to the question of double jeopardy, the rules of res judicata must be considered as they apply to criminal cases just the same as in civil cases, and if one essential point has been finally adjudicated in one trial in favor of the defendant, that question is adjudicated and determined as to all proceedings between the parties. Thus, if the defendant is later prosecuted for another offense arising out of the same incident where it is necessary, in order to convict the defendant, to establish and prove that particular fact against him, the defendant cannot be convicted again but the case must be dismissed although the matter involves the trial on a different offense.
Thus, we now come to the more complexing problem as to whether or not the rule of law known as 'collateral estoppel' is a bar to the prosecution of the instant indictment which would require its dismissal. There is a distinction between former jeopardy and res judicata, although the application of these principles is sometimes confusing. There can be no question but that the principle of 'collateral estoppel' has been accepted by our courts in both criminal and civil cases. (People v. Roderman, 34 Misc.2d 497, 229 N.Y.S.2d 209, supra; People v. Rodgers, 184 App.Div. 461, 37 Cr.R. 66, 171 N.Y.S. 451, affd. 226 N.Y. 671, 123 N.E.882; People v. DeSisto, 27 Misc.2d 217, 214 N.Y.S. 2d 858; People ex rel. Kwiatkowski v. Trenkle, 169 Misc. 687, 9 N.Y.S. 2d 661, supra; People v. Lo Cicero, 17 A.D.2d 31, 230 N.Y.S.2d 384.) A clear and concise statement as to the meaning of this principle of law may be found in Lo Cicero (supra), 17 A.D.2d p . 34, 230 N.Y.S.2d p. 388:
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