People v. Dean

• Decision Date: 25 February 1977
• Citation: People v. Dean, 56 A.D.2d 242, 392 N.Y.S.2d 134 (N.Y. App. Div. 1977)
• Parties: PEOPLE of the State of New York, Respondent, v. Paul R. DEAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 134

392 N.Y.S.2d 134

56 A.D.2d 242

PEOPLE of the State of New York, Respondent, v. Paul R. DEAN, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Feb. 25, 1977.

Peter L. Yellin, Rochester (Edward J. Nowak, Andrew C. Fine, Rochester, of counsel), for appellant.

Lawrence T. Kurlander, Dist. Atty., Rochester (Michael Nelson, Rochester, of counsel), for respondent.

Before MARSH, P.J., and MOULE, CARDAMONE, SIMONS and DILLON, JJ.

MOULE, Justice.

Defendant appeals from a judgment of conviction entered upon a jury verdict which found him guilty under an indictment numbered 534 of three counts of grand larceny in the second degree and three counts of issuing a bad check. ¹ He alleges seven points of error including, Inter alia, that double jeopardy was a bar to the trial in the instant case and that he was denied his right to a speedy trial.

Defendant was president of Paul R. Dean & Company, Inc., a dealer in municipal bonds. In early March, 1973 defendant and his company accepted certain bonds delivered by the City of Rochester on behalf of Insana Construction Company. These bonds had been deposited by Insana with Monroe County pursuant to a contract to improve sewer facilities. Defendant had received the bonds upon completion of the work and was authorized by Insana to sell them and remit the proceeds. This was done and $58,400 plus interest was deposited in defendant company's Chemical Bank account on March 9, 1973. On March 16, 1973 a check was issued to Insana for $60,503.56. The check was received on March 21, 1973 and presented for payment on both March 22, 1973 and March 26, 1973. In each instance the check was returned for insufficient funds.

During this same period of March 16--22, 1973 defendant ordered a total of 30,000 shares of Xerox stock through the Lincoln First Bank of Rochester. Overdrawing on the company's already overdrawn checking account with Chemical Bank, defendant authorized the issuance of at least eight checks to Lincoln as payment for the shares of stock. The issuance of these checks on the Chemical Bank checking account increased a prior deficit of $267,000 to $4,459,000. Three checks totalling over $2,500,000 and issued to Lincoln as payment for the second block of 15,000 shares of stock were returned to Lincoln by the Chemical Bank for reason of insufficient funds and are the basis for Indictment No. 534. The record clearly indicates that defendant was not only aware of the fact that he was drawing checks on an overdrawn account but did so without fear of the possible consequences.

Thereafter, on September 21, 1973 a Grand Jury returned six indictments ² against defendant individually and Paul R. Dean & Company, Inc. We need only concern ourselves with indictments 534 and 535. In September, 1974 Indictment No. 535 was brought to trial. This indictment arose out of the issuance of the check by Paul R. Dean & Company, Inc. to Insana Construction Company on March 16, 1973 and charged defendant with grand larceny in the second degree and issuing a bad check. On November 26, 1974 defendant was convicted on the charge of issuing a bad check and acquitted on the grand larceny charge. An appeal was taken and on May 30, 1975 his conviction was affirmed by this court (People v. Dean, 48 A.D.2d 223, 368 N.Y.S.2d 349).

On September 21, 1975 defendant moved to dismiss the remaining indictments numbered 534, 536--538 on the ground that he had been denied his right to a speedy trial. On January 14, 1976 his motion was denied and on January 16, 1976 the People proceeded to trial on the charges contained in Indictment No. 534. This indictment charged defendant with three counts of grand larceny in the second degree and three counts of issuing bad checks arising out of defendant's transactions with Lincoln First Bank of Rochester in which he issued checks for the payment of stock which were returned for reason of insufficient funds. The charges contained therein are those upon which defendant was tried in the instant case and upon which a verdict of guilty was returned; defendant does not urge that the verdict was against the weight of the evidence.

Defendant's first contention on this appeal is that double jeopardy was a bar to the trial in the instant case, i.e., that the charges under Indictment No. 534 relating to defendant's transactions with Lincoln First Bank should have been prosecuted in the same proceeding as were the charges under Indictment No. 535 which culminated in defendant's conviction of issuing a bad check.

A defendant's right to protection against double jeopardy in New York is specifically provided for in the State Constitution (N.Y.Const., art. I, § 6). However, it has been left to the State legislature to define precisely this concept and to prescribe the circumstances or kinds of situations to which it applies (Matter of Klein v. Murtagh, 44 A.D.2d 465, 469, 355 N.Y.S.2d 622, 626--627, affd., 34 N.Y.2d 988, 360 N.Y.S.2d 416, 318 N.E.2d 606; People v. Fernandez, 43 A.D.2d 83, 87, 349 N.Y.S.2d 774, 777--778). Sections 40.20 and 40.40 of the Criminal Procedure Law represent the Legislature's response to this task.

Criminal Procedure Law, § 40.20(1) states that '(a) person may not be twice prosecuted for the same offense.' This section prescribes the double jeopardy doctrine in its purest and simplest form. Inasmuch as the offenses charged under indictments numbered 534 and 535 are factually distinct and do not constitute the 'same offense', the proscription of this subdivision is not applicable. Criminal Procedure Law, § 40.20(2) states that '(a) person may not be separately prosecuted for two offenses based upon the same act or criminal transaction . . .' ³ Regardless of whether it is found that the offenses charged under indictments numbered 534 and 535 are based upon the same act or criminal transaction, since the offenses under each indictment involved loss or other consequence to different victims, i.e., Insana Corporation and Lincoln First Bank, there is no bar on the ground of double jeopardy under this subdivision (CPL § 40.20(2)(e)). Therefore, application of Criminal Procedure Law, § 40.20 to the facts here results in no double jeopardy violation.

Nevertheless, it is still necessary to proceed with an application of Criminal Procedure Law, § 40.40 to the facts here. That section places a bar on separate prosecution of jointly prosecutable offenses and deals with prosecutions for different and factually distinct offenses arising out of the same criminal transaction under circumstances wherein no violation of the double jeopardy principle can validly be maintained but the equities nevertheless seem to preclude separate prosecutions (People v. Ruzas, 54 A.D.2d 1083, 389 N.Y.S.2d 205 (1976), citing Denzer's Commentaries, CPL § 40.40, pp. 142--144). However, the prohibition against separate prosecution of jointly prosecutable offenses applies Only if the defendant has requested consolidation thereof for trial purposes and the request is denied (Criminal Procedure Law, § 40.40(3)). Here, the defendant did not move for consolidation and thus he is deemed to have waived his right to object to separate prosecutions (see Practice Commentary, Denzer, McKinney's Cons. Laws of N.Y. (1971), Book 11A, CPL § 40.40, p. 144).

Although defendant cannot support his contention by utilizing either the New York statutory scheme which codifies the law of double jeopardy (CPL § 40.20) or the joinder provisions of CPL § 40.40, he still has available a federal constitutional claim under the Fifth Amendment's protection against double jeopardy which is applicable to state criminal prosecutions through the due process clause of the Fourteenth Amendment (Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707).

In providing this federal constitutional protection, two distinct tests have been utilized by the courts in determining when double jeopardy will apply. One test, the 'same evidence' test, requires that before double jeopardy applies, it must be shown that the same evidence necessary to sustain a second indictment would have been sufficient to secure a conviction on the first indictment. ⁴ (Ashe v. Swenson,397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, Brennan concurring, at 451, 90 S.Ct. 1189; see also Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306.) The second test is the 'same transaction' test which requires the prosecution to join at one trial 'all the charges against a defendant which grow out of a single criminal act, occurrence, episode, or transaction' (Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, Brennan concurring, Supra, at 453--54, 90 S.Ct. at 1199). There exists no authority for the fact that either of these two Federal tests are required to be applied in a given instance nor is there any authority for the fact that either test is constitutionally preferred.

The New York statutory standard as set forth in Criminal Procedure Law, § 40.20, has not been found unconstitutional nor is it being challenged as so here. It is a standard which is more protective of defendant's rights than the Federal 'same evidence' test, yet is not as broad as the Federal 'same transaction' test. Inasmuch as there is no mandate from the Supreme Court to adopt a particular test to apply in this situation, we see no reason to abandon the New York statutory standard and adopt a different one. As was shown above, application of the relevant sections of the Criminal Procedure Law to the facts here leads to the result that the prosecution of Indictment No. 534 was not barred by double jeopardy and therefore any such claim by defendant, whether constitutional or statutory, must be dismissed as being without merit.

As his second contention defendant asserts that collateral estoppel was a bar to his prosecution under Indictment No. 534 for the crime of grand larceny in the second degree arising out of the...