People v. Ercole

• Decision Date: 21 October 1957
• Citation: 167 N.Y.S.2d 548,4 A.D.2d 881
• Parties: The PEOPLE of the State of New York, appellant, v. Anniello ERCOLE also known as 'T', respondent.
• Court: New York Supreme Court — Appellate Division

Page 548

167 N.Y.S.2d 548

4 A.D.2d 881

The PEOPLE of the State of New York, appellant, v. Anniello ERCOLE also known as 'T', respondent.

Supreme Court, Appellate Division, Second Department.

Oct. 21, 1957.

Aaron Nussbaum, Brooklyn, for appellant.

Edward H. Levine, New York City, Abraham H. Brodsky, New York City, on the brief, for respondent.

Before WENZEL, Acting P. J., and BELDOCK, MURPHY, UGHETTA and HALLINAN, JJ.

MEMORANDUM BY THE COURT.

Appeal from an order of the County Court, Kings County, dismissing on the ground of double jeopardy an indictment for grand larceny in the first degree.

Order affirmed on opinion of County Judge Hyman Barshay (2 Misc.2d 1015, 154 N.Y.S.2d 128).

WENZEL, Acting P. J., and MURPHY and HALLINAN, JJ., concur.

BELDOCK, Justice, dissents and votes to reverse the order and to deny the motion to dismiss the indictment, with the following memorandum.

On May 29, 1953 respondent was indicted, by long form indictment, on four counts of common-law larceny--one count of grand larceny and three counts of petit larceny. None of the counts alleged that respondent made use of false or fraudulent representations in the course of accomplishing the various thefts. Under the circumstances, evidence of such representations could not be received over respondent's objection. Penal Law, § 1290-a. When the People sought to introduce such evidence during the course of the trial in November, 1953 respondent objected. Thereupon, acting pursuant to section 295-j of the Code of Criminal Procedure, the trial court permitted the People, over respondent's objection, to amend the indictment by adding four new counts, each the same as the four original counts, except that allegations of false pretense and fraudulent representation were included in the new counts. Respondent was thereafter found guilty only of count 5 (grand larceny in the first degree by false pretenses), the other 7 counts having been dismissed. The judgment of conviction was reversed by this court and the indictment dismissed (People v. Ercole, 284 App.Div. 974, 134 N.Y.S.2d 794). The dismissal of the indictment was affirmed by the Court of Appeals (People v. Ercole, 308 N.Y. 425, 126 N.E.2d 543) on the ground that the trial court was without statutory authority to grant the amendment of the indictment.

On November 9, 1955 respondent was indicted for grand larceny in the first degree committed as a result of false pretenses and fraudulent representations, the indictment being for the same crime charged in count 5 of the prior indictment, as amended at the trial.

In March, 1956 respondent moved to dismiss the new indictment on the ground of double jeopardy. The motion was granted by the order from which the appeal is taken.

In my opinion, the order should be reversed and the motion to dismiss the indictment denied for at least four reasons:

(1) That the original indictment may have been valid is immaterial. When the original indictment was amended during the course of the trial to include count 5 (among others) charging grand larceny by false ...