People v. Graham

• Decision Date: 12 June 1975
• Citation: 36 N.Y.2d 633,370 N.Y.S.2d 888,331 N.E.2d 673
• Parties: , 331 N.E.2d 673 The PEOPLE of the State of New York, Appellant-Respondent, v. Burton C. GRAHAM, Respondent-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 888

370 N.Y.S.2d 888

36 N.Y.2d 633, 331 N.E.2d 673

The PEOPLE of the State of New York, Appellant-Respondent, v. Burton C. GRAHAM, Respondent-Appellant.

Court of Appeals of New York.

June 12, 1975.

D. Bruce Crew, III, Dist. Atty., for appellant-respondent.

James F. Young, Elmira, for respondent-appellant.

WACHTLER, Judge.

In 1961 the defendant was indicted for murder in the first degree and convicted of murder in the second degree. In 1964 the Appellate Division, Third Department (20 A.D.2d 949, 249 N.Y.S.2d 97), held that certain evidence should have been suppressed and without it there was insufficient proof to establish murder in either degree, but enough to sustain a conviction for manslaughter in the first degree. Pursuant to subdivision 2 of section 543 of the Code of Criminal Procedure now CPL 470.15 (subd. 2, par. (a)), Consol.Laws, c. 11--A, they modified 'on the law and the facts and in the interest of justice' by reducing the conviction to the lesser included offense.

Leave to appeal to this court was denied but the defendant pursued the matter into the Federal courts. In 1972 the Second Circuit Court of Appeals held that the defendant was deprived of his constitutional right to a trial when the Appellant Division summarily reduced the conviction to first degree manslaughter. Under the circumstances, the court concluded, defendant should have been granted a new trial because there was no way of knowing what the jury would have done if the inadmissible evidence had not been before them (United States ex rel. Graham v. Mancusi, 457 F.2d 463).

The People then moved the case for retrial on the charge of murder in the second degree. The defendant protested, claiming that the highest crime for which he could be retried was manslaughter in the first degree. The problem, as the trial court noted in an opinion (People v. Graham, 69 Misc.2d 670, 671, 330 N.Y.S.2d 711, 714) was that the Federal 'court's decision does not state nor is there any intimation as to the offense for which the defendant may be retried'. The trial court correctly observed that retrial for murder in the first degree, the crime charged in the indictment, was out of the question. By convicting the defendant of the lesser crime, the jury at the first trial had impliedly acquitted him of the crime charged and any retrial for that offense was prohibited by the double jeopardy clause (Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; People v. Ressler, 17 N.Y.2d 174, 269 N.Y.S.2d 414, 216 N.E.2d 582) and by statute (CPL 470.55, subd. 1, par. (a)). However the court concluded that by seeking a new trial the defendant could not object to being retried for murder in the second degree (69 Misc.2d, at p. 673, 330 N.Y.S.2d at p. 715, Supra).

The defendant was then retried for murder in the second degree and convicted of that crime. On appeal the Appellate Division once again modified by reducing the conviction to manslaughter in the first degree. On this occasion however, the second degree murder conviction was not set aside for legal insufficiency but rather because the court held that the double jeopardy provision of the Fifth Amendment had been violated. '(T)hat provision of the Constitution was clearly violated by defendant's retrial on the charge of murder in the second degree since the earlier decision of this court (20 A.D.2d 949, 249 N.Y.S.2d 97) modifying the judgment so as to convict him of manslaughter in the first degree, and the subsequent denial of leave to appeal to the Court of Appeals, had the same finality as that of a verdict of acquittal of the greater charge' (43 A.D.2d 182, 188, 350 N.Y.S.2d 458, 464).

Both sides have appealed to our court from this order. ¹

On the appeal by the People it is argued that the conviction for murder in the second degree should be reinstated since the order of the Appellate Division on the first appeal (20 A.D.2d 949, 249 N.Y.S.2d 97) setting aside the conviction on that charge for legal insufficiency is not equivalent to an acquittal. Thus, the argument continues, it was subject to further review and if reversed, poses no bar to retrial on that charge. Stated in its simplest terms this branch of the appeal raises two questions: (1) What was the effect of the first Appella Division order setting aside the conviction for murder in the second degree and (2) What was the effect of the Federal court order granting a new trial.

As to the first question, it is elemental and historical that the People cannot appeal from a verdict of acquittal (United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300). But an order setting aside a conviction is not an acquittal in the strict sense of the word. Such an order is appealable, and if reversed on appeal, there is nothing to prevent the prosecutor from retrying the defendant (Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412; United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232). ² However, if it is not reversed then the defendant may not be tried again for the offense on which the conviction was set aside (United States v. Sisson, 399 U.S. 267, 290, n. 18, 90 S.Ct. 2117, 26 L.ed.2d 608; United States v. Wilson, supra, 420 U.S. at p. 351, 95 S.Ct. 1013).

The crucial question then is whether the subsequent order of the Federal court granting a new trial, reversed the order of the Appellate Division. The trial court assumed that it did (69 Misc.2d 670, 330 N.Y.S.2d 711) and the Appellate Division held, in effect, that it did not (43 A.D.2d 182, 350 N.Y.S.2d 458). The confusion, no doubt, arises from the fact that the first Appellate Division order modifying the judgment necessarily involved two separate determinations regarding two distinct crimes (1) murder in the second degree, which was effectively reversed and dismissed and (2) manslaughter in the first degree, the lesser included offense as to which the conviction was affirmed.

It is clear enough that the Federal court order effectively nullified the second determination. Its effect on the first determination is more obscure. In directing a new trial the Federal court certainly did not expressly resurrect the charge which the Appellate Division had set aside if indeed it could--and the question arises as to whether its order should nevertheless be given this effect. In other words, does an order granting a new trial nullify In its entirety any intermediate appellate court order.

The defendant argues that it cannot have this effect for if it did, he would be placed in an 'incredible dilemma' (Green v. United States, 355 U.S. 184, 193, 78 S.Ct. 221, 2 L.Ed.2d 199) forcing him to choose between accepting an unconstitutional judgment or appealing it and subjecting himself to the possibility of having the more serious charge, which was set aside on the intermediate appeal, restored upon retrial. This he claims places an unconstitutional premium on the right to appeal and violates his rights under the double jeopardy clause. The People argue that under the 'continuing jeopardy' principle (United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed.2d 300, Supra; Green v. United States, supra) it is constitutionally permissible to hold that a grant of a new trial completely invalidates--and thus strips the defendant of the benefits--any intermediate appellate court order.

Before we can reach the question as to whether the Constitution would deny this effect to an order granting a new trial, we must first consider whether it would be permitted to have such effect under current State law. The People have assumed that it must necessarily. Their case seems to rest on two interrelated premises: (1) a New York intermediate appellate court's order is indivisible and (2) an order granting a new trial completely wipes the slate clean and restores the parties to the position they were in prior to the first trial.

In holding that the defendant could be reprosecuted for murder in the second degree the trial court held that the modified judgment of the Appellate Division could not be 'split in half'. The defendant could not, the court stated, 'on one hand assert that the court's action was a nullity and on the other hand claim partial validity for purposes of determining the degree of offense for which he is to be retried' (69 Misc.2d 670, 673, 330 N.Y.S.2d 711, 716). This is not so. Our court has long recognized that a modified judgment gives rise to cross appeals. The defendant may appeal from that part of the order which adversely affects him, and the People may appeal the remainder (see, e.g., People v. Mishkin, 15 N.Y.2d 671, 255 N.Y.S.2d 881, 204 N.E.2d 209, Supra; People v. Renner, 16 N.Y.2d 645, 261 N.Y.S.2d 81, 209 N.E.2d 121). This is immediately, and perhaps best illustrated by the cross appeals which are now before us. Indeed if the People had not appealed, or had failed to do so properly, we could only consider the defendant's points (see, e.g., People v. Birmingham, 16 N.Y.2d 878, 264 N.Y.S.2d 248, 211 N.E.2d 648) and of course the converse is equally true. As a matter of general principle then, there is nothing offensive in the notion that an appellate order modifying a conviction may be partially invalidated. The final question is whether an order granting a new trial must necessarily have a different effect.

At one time this State followed the rule that an order granting 'a new trial places the parties in the same position as if no trial had been had' (Code Crim.Pro. § 464), although in practice the slate was never...