People v. Demino

• Decision Date: 07 July 1971
• Citation: 324 N.Y.S.2d 402,29 N.Y.2d 602,273 N.E.2d 133
• Parties: , 273 N.E.2d 133 PEOPLE, etc., Respondent, v. Boldassaro DeMINO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 402

324 N.Y.S.2d 402

29 N.Y.2d 602, 273 N.E.2d 133

PEOPLE, etc., Respondent, v. Boldassaro DeMINO, Appellant.

Court of Appeals of New York.

July 7, 1971.

Appeal from the Supreme Court, Appellate Division, Second Department, 35 A.D.2d 979, 317 N.Y.S.2d 929.

Joel Berger, Robert Kasanof, New York City, for defendant-appellant.

Eugene Gold, Brooklyn (Aaron Nussbaum, Brooklyn, of counsel), for respondent.

The Supreme Court, Kings County, denied defendant's coram nobis application without hearing and defendant appealed.

The Appellate Division affirmed, holding that since, at time of defendant's retrial on original first-degree murder charge following reversal of second-degree murder conviction, double jeopardy defense was available, his failure to present the issue then precluded is assertion of it many years after the event in a collateral proceeding. Defendant appealed.

In the Court of Appeals argument was directed to whether re-prosecution violated right against double jeopardy and as to whether rule of retroactivity governing constitutional violations of double jeopardy should be applied to the situation at bar.

Order affirmed in the following memorandum: There was no showing of actual prejudice beyond the fact of the retrial itself, to which the defense--differing from that in Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300--interposed no objection (see People ex rel. Williams v. Follette, 30 A.D.2d 693, 292 N.Y.S.2d 190, affd. 24 N.Y.2d 949, 302 N.Y.S.2d 584, 250 N.E.2d 71; People ex rel. Elias v. Follette, 32 A.D.2d 929, 303 N.Y.S.2d 352, mot. for lv. to app. den. 25 N.Y.2d 742, 305 N.Y.S.2d 1025, 252 N.E.2d 862).

All concur.