People v. Daby
| Citation | 56 A.D.2d 873,392 N.Y.S.2d 325 |
| Parties | The PEOPLE, etc., Respondent, v. James DABY, Appellant. |
| Decision Date | 14 March 1977 |
| Court | New York Supreme Court Appellate Division |
Anthony J. Monteleone, Mount Kisco (James J. Duggan, White Plains, of counsel), for appellant.
Carl A. Vergari, Dist. Atty., White Plains (Anthony Joseph Servino, White Plains, of counsel), for respondent.
Before MARTUSCELLO, Acting P.J., and COHALAN, RABIN and MOLLEN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered January 15, 1976, convicting him of criminal possession of a controlled substance in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review an order of the same court, dated January 13, 1976, which denied defendant's motion to dismiss the indictment pursuant to CPL 210.20 (subd. 1, par. (e)).
Order and judgment reversed, on the law, motion granted, and indictment dismissed.
Defendant was indicted by the United States Grand Jury for the Southern District of New York and charged, along with 23 co-defendants, in a two count indictment, with conspiracy 'to violate Sections 812, 841(a)(1) and 841(b)(1) (A) of Title 21, United States Code' (count one) and with violating section 843 (subd. (b)) of the same title, for the unlawful use of a telephone in facilitating the conspiracy charged in the first count. Count one alleged, Inter alia, that:
'It was part of said conspiracy that the said defendants unlawfully, wilfully and knowingly would distribute and possess with intent to distribute Schedule I and II controlled substances' (marijuana and amphetamines).
Among the overt acts alleged in support of the first count was that:
'On or about the 30th day of September, 1974, the defendant Jimmy Daby, while in the Town of Cortlandt, New York, was arrested.'
Almost simultaneously with the filing of the Federal indictment, a two-count indictment was filed in the County Court, Westchester County. The first count charged the defendant with violating section 220.09 (subd. 10) of the Penal Law, to wit, criminal possession of a controlled substance in the fifth degree (marijuana), and, in the second count, with violating section 220.09 (subd. 4) of the Penal Law, for the unlawful possession of amphetamines. The possession allegedly occurred on or about September 29, 1974 in the Town of Cortlandt, New York. *
Thereafter, following a series of conferences among the Assistant United States Attorney, counsel representing defendant on the Federal indictment, and counsel representing defendant on the Westchester County indictment, it was agreed that the Federal indictment would be satisfied by a plea of guilty to a reduced charge. Pursuant to that agreement, a prosecutor's information was filed on October 16, 1975, in which the defendant was charged with possession of marijuana as a misdemeanor.
CPL 40.20, in pertinent part, provides:
'1. A person may not be twice prosecuted for the same offense.
'2. 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; or
(c) One of such offenses consists of criminal possession of contraband matter and the other offense is one involving the use of such contraband matter, other than a sale thereof'.
CPL 40.30 provides, in part:
'1. Except as otherwise provided in this section, 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 or of any jurisdiction within the United States, 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...
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