People v. Ercole

• Decision Date: 26 February 1959
• Citation: 184 N.Y.S.2d 848,5 N.Y.2d 983
• Parties: , 157 N.E.2d 722 PEOPLE, Appellant, v. Anniello ERCOLE, also known as 'T', Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 848

184 N.Y.S.2d 848

5 N.Y.2d 983, 157 N.E.2d 722

PEOPLE, Appellant, v. Anniello ERCOLE, also known as 'T', Respondent.

Court of Appeals of New York.

Feb. 26, 1959.

Appeal from Supreme Court, Appellate Division, Second Department, 4 A.D.2d 881, 167 N.Y.S.2d 548.

Defendant was charged by indictment with first degree grand larceny by false pretense, and he made a motion for dismissal of the indictment, on ground that it placed him twice in jeopardy for the same offense.

The County Court, Kings County, Hyman Barshay, J., 2 Misc.2d 1015, 154 N.Y.S.2d 128, entered an order dismissing the indictment, and the People of the State of New York appealed.

The Appellate Division, 4 A.D.2d 881, 167 N.Y.S.2d 548, affirmed the order, and the People of the State of New York appealed by permission of an Associate Justice of the Appellate Division.

The Court of Appeals, Conway, C. J., 4 N.Y.2d 617, 176 N.Y.S.2d 649, reversed the orders of the Appellate Division and the County Court, reinstated the indictment, and held that where former conviction for first degree grand larceny by false pretense was reversed, on ground that it was error to amend 'long form' indictment charging first degree grand larceny by adding allegation that larceny was committed by use of false pretense, subsequent indictment charging first degree grand larceny by false pretense was not subject to dismissal, on ground that it placed defendant twice in jeopardy for the same offense.

Motion was made in the Court of Appeals for reargument.

Motion for reargument dismissed upon the ground that the question presented has been rendered moot by the death of the defendant Anniello Ercole.