People v. Galunas

• Decision Date: 01 March 2012
• Citation: 2012 N.Y. Slip Op. 01524,93 A.D.3d 892,939 N.Y.S.2d 196
• Parties: The PEOPLE of the State of New York, Respondent, v. Matthew C. GALUNAS, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01524

93 A.D.3d 892

939 N.Y.S.2d 196

The PEOPLE of the State of New York, Respondent,

v.Matthew C. GALUNAS, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

March 1, 2012.

Teresa C. Mulliken, Harpersfield, for appellant.

Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), for respondent.

Before: PETERS, J.P., LAHTINEN, KAVANAGH, STEIN and GARRY, JJ.

GARRY, J.

Appeal from a judgment of the County Court of Delaware County (Smith, J.), rendered October 9, 2009, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and burglary in the third degree.

In December 2007, defendant broke into a pharmacy in the Village of Margaretville in Delaware County and stole controlled substances, including morphine and methadone. In October 2008, he pleaded guilty in Ulster County to three counts of criminal possession of a controlled substance in the third degree and two counts of criminal sale of a controlled substance in the third degree. Shortly thereafter, he was indicted in Delaware County for various crimes arising from the pharmacy burglary, including two counts of criminal possession of a controlled substance in the first degree.

In December 2008, defendant moved to withdraw his Ulster County guilty plea. While that motion was pending, he also moved in Delaware County to dismiss the two criminal possession charges on the ground that he was being prosecuted twice for the same offenses in violation of CPL 40.20(1). Defendant's motion to withdraw the Ulster County guilty plea was granted, and he thereafter moved to dismiss the Delaware County indictment in its entirety, alleging that evidence of the guilty plea had been presented to the Delaware County grand jury. County Court denied both motions. Defendant subsequently pleaded guilty in Delaware County to a reduced charge of criminal possession of a controlled substance in the third degree and to one count of burglary in the third degree. He was sentenced to a prison term of three years followed by two years of postrelease supervision on the criminal possession conviction, to run concurrently with a prison term of 2 to 6 years on the burglary conviction. Defendant appeals, contending that his prosecution on the Delaware County criminal possession counts violated his constitutional right to protection against double jeopardy, as the controlled substances that formed the basis of the Ulster County charges came into his possession as a result of the alleged Delaware County crimes.¹

Initially, while noting that the constitutional right to protection against double jeopardy survives a guilty plea ( see People v. Parilla, 8 N.Y.3d 654, 659, 838 N.Y.S.2d 824, 870 N.E.2d 142 [2007]; People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ), we find that defendant waived this claim “by his express waiver of the right to appeal, which ‘evidenced the understanding that, by taking the plea, he knowingly, voluntarily and intelligently gave up the right to appeal from all waivable aspects of the case’ ” ( People v. Monroig, 17 A.D.3d 870, 871, 793 N.Y.S.2d 268 [2005], quoting People v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182 [1998] [internal brackets and emphasis omitted]; see People v. Almonte, 288 A.D.2d 632, 633, 732 N.Y.S.2d 705 [2001], lvs. denied 97 N.Y.2d 726, 727, 740 N.Y.S.2d 699, 767 N.E.2d 156 [2002] ). In any event, a constitutional double jeopardy claim does not arise when each of the challenged charges “requires proof of a fact which the other does not” ( Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 [1932]; see United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 [1993]; People v. Prescott, 66 N.Y.2d 216, 221, 495 N.Y.S.2d 955, 486 N.E.2d 813 [1985], cert. denied 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349 [1986]; People v. Gray, 300 A.D.2d 696, 697, 752 N.Y.S.2d 731 [2002], lv. denied 100 N.Y.2d 561, 763 N.Y.S.2d 819, 795 N.E.2d 45 [2003] ). Here, one of the challenged Delaware County charges alleged the possession of methadone, which was not charged in the Ulster County indictment, and the second challenged Delaware County charge, among other differences, required proof of a different weight than any of the Ulster County...