People v. Fennell

• Citation: 197 N.Y.S.2d 327,10 A.D.2d 78
• Parties: PEOPLE of the State of New York, Plaintiff-Respondent, v. Joab FENNELL, Defendant-Appellant.
• Decision Date: 15 March 1960
• Court: New York Supreme Court Appellate Division

Page 327

197 N.Y.S.2d 327

10 A.D.2d 78

PEOPLE of the State of New York, Plaintiff-Respondent, v. Joab FENNELL, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 15, 1960.

Robert Polstein, New York City, for defendant-appellant.

Peter J. O'Connor, New York City, of counsel (Charles W. Manning, New York City, with him on the brief. Frank S. Hogan, Dist. Atty., New York County, New York City, atty.), for respondent.

Before BREITEL, J. P., and RABIN, M. M. FRANK, VALENTE and STEVENS, JJ.

M. M. FRANK, Justice.

The defendant appeals from a judgment of the Court of Special Sessions convicting him of the crime of assault, third degree. He urges that the conviction is barred upon the ground of former jeopardy, and, in any event, that the evidence is insufficient to support the judgment.

As a result of an altercation with a railway policeman in Pennsylvania Railroad Terminal, the defendant, a taxicab driver, was separately charged with disorderly conduct (Penal Law, § 722, subd. 2), and with assault. After a trial in the Magistrate's Court, the defendant was acquitted of the disorderly conduct charge. The complaint upon which the charge was predicated alleged that, 'with intent to provoke a breach of the peace and under circumstances whereby a breach of the peace might be occasioned, the defendant refused to obey deponent's directions, while deponent was directing traffic, refused to move, used loud and abusive and obscene language, in the presence of women and children in the vicinity; and did resist arrest; thereby causing a disturbance thereat.' The minutes of the trial reveal that the Magistrate unequivocally refused to take proof concerning the alleged assault. He said, 'We are not hearing the assault case at this time. I will not allow any testimony on the assault case in considering the disorderly conduct charge.' Thereafter, the defendant proceeded to trial in Special Sessions. Both at the commencement and at the conclusion thereof, counsel for the defendant unsuccessfully moved for his acquittal because of former jeopardy.

The state has provided adequate safeguards to protect a defendant from being subjected more than once to a conviction for the same crime, not along in the Constitution and in numerous statutory enactments (N.Y.Const. Art. I, Sec. 6; Penal Law, §§ 32, 1938; Code of Criminal Procedure, §§ 139, 327, 470, 673), but by judicial decisions as well. Various tests have been established in applying the bar of former jeopardy, or more particularly, as here, of autrefois acquit. See 1 Bouv. Law Dict., Rawle's Third Revision, p. 296; People ex rel. Moskoff v. Weinstock, 21 Misc.2d 14, 55 N.Y.S.2d 330, 334. However, a defendant must fit himself into the protective frame for it to be available to him.

While a defendant may not be placed in jeopardy twice for the same offense (People v. Silverman, 281 N.Y. 457, 24 N.E.2d 124), it does not follow that a person may not be convicted of several crimes arising out of the same incident. If the crimes are separate and distinct as a matter of law, a defendant may be convicted of each, although the facts may be closely related. In People v. Bevins, 74 Misc. 377, 134 N.Y.S. 212, the defendant was separately convicted of public intoxication and of disorderly conduct (using profane and obscene language), both offenses resulting from one occurrence. Appellant's reliance on People ex rel. Ticineto v. Brewster, 241 App.Div. 467, 273...