People v. Gesegnet

• Citation: 366 N.Y.S.2d 518,47 A.D.2d 333
• Parties: PEOPLE of the State of New York, Appellant, v. Richard GESEGNET, Respondent.
• Decision Date: 17 April 1975
• Court: New York Supreme Court Appellate Division

Page 518

366 N.Y.S.2d 518

47 A.D.2d 333

PEOPLE of the State of New York, Appellant, v. Richard GESEGNET, Respondent.

Supreme Court, Appellate Division, Fourth Department.

April 17, 1975.

Edward C. Cosgrove, Dist. Atty., Buffalo, for appellant (Judith Blake Manzella, Buffalo, of counsel).

John W. Condon, Jr., Buffalo, for respondent (Joseph V. Sedita, Buffalo, of counsel).

Before MARSH, P.J., and MOULE, CARDAMONE, MAHONEY and DEL VECCHIO, JJ.

OPINION

MOULE, Justice.

The question presented in this appeal is whether subdivision 2 of section 450.20 of the Criminal Procedure Law, which permits the People to appeal to an intermediate appellate court from a trial order of dismissal, violates defendant's right not to be tried twice for the same offense which would place him in double jeopardy contrary to the Fifth and Fourteenth Amendments to the United States Constitution.

Defendant along with four others was charged in an Erie County Grand Jury indictment with having stolen, criminally possessed, and fraudulently registered two cars, one a 1967 Buick Electra and the other a 1968 Buick Riviera. Upon defendant's motion his case was severed from those of the other four persons and a jury trial was commenced in the Erie County Court. At the close of the People's proof, after 1,500 pages of testimony had been taken, the court entered a trial order dismissing all of the charges against defendant because the evidence failed to show knowledge on his part that either of the cars had been stolen and, further, because there was no evidence that he participated in their theft.

The People have appealed to this court under subdivision 2 of section 450.20 of the Criminal Procedure Law, which provides that an appeal to an intermediate appellate court may be taken as of right from 'a trial order of dismissal, entered pursuant to section 290.10 or 360.40.' That provision was a part of the Criminal Procedure Law which became effective in 1971 and had no counterpart in the former Code of Criminal Procedure (see Practice Commentary, McKinney's Consolidated Laws of New York, Vol. 11A, § 450.20).

Defendant urges that to permit the People to appeal in such a situation would violate his constitutional protection against double jeopardy since, if successful, the People's appeal would result in a second trial requiring the swearing of a new jury and the presentation of new evidence. In the alternative, defendant contends that even if the double jeopardy issue were resolved against him, the application of subdivision 2 of section 450.20 of the Criminal Procedure Law in this instance would be ex post facto, since his arrest predated its enactment, and thus would violate his rights under article I, section 10 of the United States Constitution.

The effect of subdivision 2 of section 450.20 of the Criminal Procedure Law has twice been considered by appellate tribunals (People v. Sabella, 35 N.Y.2d 158, 359 N.Y.S.2d 100, 316 N.E.2d 569; People v. Underwood, 43 A.D.2d 800, 350 N.Y.S.2d 260) but in neither instance was the constitutional question of double jeopardy squarely presented. In People v. Sabella, Supra, the court was confronted with two cases involving appeals by the People from trial orders of dismissal under subdivision 2 of section 450.20 of the Criminal Procedure Law. Each was a nonjury case. In one the court held that although the trial judge denominated his action as a trial order of dismissal, his decision was really rendered on the merits of the case, having necessarily involved a factual determination made after both sides had presented proof, and that therefore an appeal by the People under subdivision 2 of section 450.20 of the Criminal Procedure Law would not lie. In the other the court found that the order of dismissal was based purely on a question of law, that being the standard of proof required for corroborative evidence in a perjury prosecution, and that therefore the trial was aborted short of a decision on the merits, thus permitting an appeal by the People under the same statute. The court further reversed the trial judge's ruling on the law and sent the case back to be retried. In so doing it adverted to the double jeopardy question without really discussing it, by stating that in situations wherein the trial court reached the merits of a case, retrial 'poses a threat to the defendant's right not to be placed twice in jeopardy for the same offense' (People v. Sabella, Supra, 35 N.Y.2d at page 166, 359 N.Y.S.2d at page 107, 316 N.E.2d at page 574).

The United States Supreme Court, however, has recently decided two cases which raise serious questions as to Sabella's continued viability, even in its limited sense, and which likewise raise substantial doubt as to the constitutionality of subdivision 2 of section 450.20 of the Criminal Procedure Law.

In United States v. Wilson, --- U.S. ---, 95 S.Ct. 1013, 43 L.Ed.2d 232, decided February 25, 1975, the Supreme Court held that an appeal by the Government from a trial court order dismissing the charge after a jury verdict of...