People v. Green
| Decision Date | 03 May 2001 |
| Docket Number | No. 49,49 |
| Citation | 96 N.Y.2d 195,726 N.Y.S.2d 357 |
| Parties | (Ct.App. 2001) The People of the State of New York, Appellant, v. Gary A. Green, Respondent |
| Court | New York Court of Appeals Court of Appeals |
Defendant was arrested and charged in a misdemeanor information with driving while intoxicated. At trial before the Justice Court for the Town of East Hampton, the court also charged the jury on the lesser-included offense of driving while impaired. The jury acquitted defendant of driving while intoxicated but failed to reach a verdict on the lesser charge. The court then declared a mistrial as to that charge.
The People sought to retry defendant on the lesser charge and filed a new information charging him with driving while impaired. Defendant objected to the presence of two accusatory instruments -- the old and new informations -- in the court file. In addition, defendant argued that double jeopardy barred the People from retrying him for driving while impaired. The court denied defendant's double jeopardy claim, and ruled that the retrial would proceed on the original accusatory instrument. Subsequently, on the People's motion, the court dismissed the second accusatory instrument. A bench trial ensued, at which the court considered only the lesser charge of driving while impaired.
At the close of the evidence, defendant again moved to dismiss the charge on double jeopardy grounds. In addition, defendant argued that the original accusatory instrument had been rendered a nullity by his acquittal of driving while intoxicated -- the only count charged in that information -- and thus the retrial had improperly proceeded on the original instrument. The court denied defendant's motion and found him guilty of driving while impaired.
The Appellate Term reversed defendant's conviction, holding that since A Judge of this Court granted leave, and we now reverse.
A criminal proceeding, of course, must be commenced by the filing of an accusatory instrument. Here, there is no dispute that defendant's first trial was properly commenced by the filing of an accusatory instrument charging him with driving while intoxicated (Vehicle and Traffic Law § 1192[3]). The question before us is whether a new accusatory instrument was necessary to commence defendant's retrial on the lesser-included charge of driving while impaired (Vehicle and Traffic Law § 1192[1]), on which the first jury hung. We hold that it was not.
To begin, both the Vehicle and Traffic Law and the Criminal Procedure Law provide statutory authority for the retrial on the original accusatory instrument. The Vehicle and Traffic Law permits a defendant to be convicted of driving while impaired (under section 1192[1]) even if the accusatory instrument charges only driving while intoxicated (under subdivisions [2] or [3]). Vehicle and Traffic Law § 1192(9) states that a "driver may be convicted of a violation of subdivision one, two or three of this section, notwithstanding that the charge laid before the court alleged a violation of subdivision two or three of this section, and regardless of whether or not such conviction is based on a plea of guilty." In addition, the Criminal Procedure Law authorizes a retrial on any count submitted to the jury at the first trial for which the jury failed to reach a verdict. CPL 310.70(2) states that following "the rendition of a partial verdict * * *, a defendant may be retried for any submitted offense upon which the jury was unable to agree." CPL 310.70(2) provides two exceptions to this rule, neither applicable here.
Notwithstanding these statutory authorizations, defendant argues that his retrial on the original accusatory instrument violated the rule of People v Mayo (48 N.Y.2d 245).
In Mayo, the defendant was indicted for one count only: first-degree robbery. At the close of the evidence, the Trial Judge held that there was insufficient evidence to support the first-degree robbery charge, but instructed the jury on the lesser-included offenses of second- and third-degree robbery. The jury was unable to reach a verdict on the lesser charges, and a mistrial resulted. The People then sought to retry the defendant on the original, first-degree robbery indictment. Defendant argued that the retrial violated the Double Jeopardy Clause, but the court permitted the retrial to go forward. At the close of the evidence, however, the court informed the jury that it could not consider the first-degree robbery charge "for legal reasons," but instead could consider only the lesser offenses of second- and third-degree robbery (48 N.Y.2d, at 248-249). This time, the jury convicted the defendant of second-degree robbery.
This Court reversed the defendant's conviction in Mayo, for several reasons. First, the defendant's right against double jeopardy was violated "in the most fundamental manner" when the court permitted the retrial to proceed on the first-degree robbery count. While the People had the right to retry the defendant for the lesser offenses, they did not limit the retrial to those offenses. Thus, the...
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... ... Proc. § 180.10, a misdemeanor charge of DWI requires no post-arrest determination of probable cause, id. §§ 170.10 et seq.; People v. Green, 96 N.Y.2d 195, 199-200, ... 726 N.Y.S.2d 357, 361, 750 N.E.2d 59 (2001) (noting, in a DWI case, that whereas the "New York Constitution ... ...
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