People v. Key

• Decision Date: 15 June 1978
• Citation: 45 N.Y.2d 111,408 N.Y.S.2d 16,379 N.E.2d 1147
• Parties: , 379 N.E.2d 1147 The PEOPLE of the State of New York, Respondent, v. Robert F. KEY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 16

408 N.Y.S.2d 16

45 N.Y.2d 111, 379 N.E.2d 1147

The PEOPLE of the State of New York, Respondent, v. Robert F. KEY, Appellant.

Court of Appeals of New York.

June 15, 1978.

Robert C. Alexander, Mineola, for appellant

Denis Dillon, Dist. Atty. (Anthony J. Girese, New York City, and William C. Donnino, Mineola, of counsel), for respondent.

OPINION OF THE COURT

BREITEL, Chief Judge.

Defendant was charged, in a simplified traffic information, with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law, § 1192). After a jury had been sworn the District Court, on defendant's motion, dismissed the information for legal insufficiency. On reargument, the court adhered to its original determination. The Appellate Term reversed and reinstated the information agreeing that the information was defective, but holding that the defect was not properly asserted. Defendant appeals.

Three issues are presented. The first is whether the information was, in fact, defective. The second is whether any defect was waived for untimeliness. The final and crucial issue is whether further proceedings against defendant are prohibited by double jeopardy principles.

There should be an affirmance. Although, as held by both courts below, the information was defective, the defect was waived for untimeliness. Moreover, when a dismissal on motion by defendant, even after a jury has been sworn, is based only on the legal insufficiency of the information, retrial is forbidden neither by the double jeopardy clauses of the State and Federal Constitutions nor by the statutory double jeopardy provisions.

On July 24, 1974, in East Rockaway, defendant was found by a police officer lying unconscious on the driver's side of the front seat of his automobile. He appeared intoxicated, and the police officer brought him to the department's central testing unit, where he was determined to have a blood alcohol level of .29 of 1%. The Vehicle and Traffic Law prohibits operation of a motor vehicle with a blood alcohol level in excess of .10 of 1% (Vehicle and Traffic Law, § 1192, subd. 2).

Defendant was charged with a misdemeanor in a uniform traffic ticket, which meets the CPL requirements for a simplified traffic information (CPL 100.10, subd. 2, par. (a)). At arraignment, the same day, defendant did not request a supporting deposition, but the People furnished one anyway. Neither the ticket nor the deposition, however alleged that defendant was operating the automobile or that the engine was running.

Defense counsel, however, did not move to dismiss the information until eight months later, when the case was reached for trial. As soon as a jury had been selected and sworn, counsel moved orally to dismiss, apparently having delayed intentionally to permit jeopardy to attach. The People objected, asserting that the motion was untimely. Nevertheless, after denying two other motions to dismiss made by defense counsel, the trial court dismissed the information because of the failure to allege operation of the vehicle. The People moved to reargue the motion, requesting reinstatement of the information or, at least, authorization to obtain a new accusatory instrument (CPL 40.30, subd. 4). The court granted reargument, but adhered to its original determination. The court expressed its belief that subsequent prosecution would be barred by the double jeopardy proscription. The Appellate Term reversed, holding the motion to dismiss improperly asserted and finding no bar to reprosecution.

A simplified traffic information, to be sufficient on its face, need only comply with the requirements of the Commissioner of Motor Vehicles; it need not provide on its face reasonable cause to believe defendant committed the offense charged (CPL 100.25, 100.40, subd. 2). But if defendant requests a supporting deposition, to which he has a statutory right, it must provide reasonable cause (CPL 100.25, subd. 2). The People's tender of such a deposition voluntarily, rather than waiting for defendant's request, should not obviate the need for the deposition to provide reasonable cause. In this case, there was no allegation that defendant was operating his automobile or even that the engine was running, an allegation necessary to establish commission of the crime. Hence, as both courts below have held, the information was insufficient.

The People, however, contend that insufficiency of the information was waived by failure to assert it until after trial had begun. CPL 170.30, governing motions to dismiss an information, supports this contention. Prior to an amendment effective September 1, 1974, it provided that "(a) motion pursuant to this section should be made prior to entry of a plea of guilty or commencement of trial" (subd. 2). After a trial begins, such a motion could be entertained only "in the interest of justice and for good cause shown" (id.). The statute, as amended, permits such motions "within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment" (L.1974, ch. 763, § 3; CPL 255.20). Since the effective date of the amendment was after arraignment of defendant but before trial, it is not entirely clear whether the amendment applies.

In either event, however, the motion was not timely made. Certainly no good cause for the delay was shown, thus foreclosing the motion under the old statute. And, since defendant made no application for an extension of time, the statutory amendment provides no help to defendant. In addition, the motion was neither in writing nor on reasonable notice to the People, as required by statute (CPL 170.45, 210.45, subd. 1). Hence, the motion should not have been granted.

Moreover, there should be no question that the defect in this information was, in fact waivable. Even if, despite the CPL provisions, there be some defects in accusatory instruments that may never be waived, the defect in this case is not of that class. Since a simplified traffic information can proceed to trial without any supporting deposition at all, and hence without any facts providing reasonable cause, it is unacceptable that absence of a factual allegation in the deposition is nonwaivable.

The remaining issue involves double jeopardy. Under New York law, if an accusatory instrument is " 'so radically defective that it would not support a judgment of conviction' ", jeopardy never attaches under the instrument, and retrial upon correction of the defect is not barred (People ex rel. Zakrzewski v. Mancusi, 22 N.Y.2d 400, 403, 292 N.Y.S.2d 892, 893, 239 N.E.2d 638, 639, quoting Shoener v. Pennsylvania, 207 U.S. 188, 195, 28 S.Ct. 110, 52 L.Ed. 163; see, e. g., People v. Smith, 266 App.Div. 57, 61-62, 41 N.Y.S.2d 512, 516-518; People ex rel. Weiner v. Warden, 237 App.Div. 28, 30-31, 260 N.Y.S. 651, 653-654, app. dsmd. 261 N.Y. 620, 185 N.E. 763; see, generally, 22 C.J.S. Criminal Law § 246). The original analysis proceeded on formalistic lines: if there had been no possibility of obtaining a valid conviction under the accusatory instrument, defendant was never put in jeopardy, and should be subject to subsequent prosecution (see 22 C.J.S. Criminal Law § 246).

As the rule has developed in New York, however, reprosecution is permitted whenever a dismissal has been granted on motion by defendant, so long as the dismissal does not constitute an adjudication on the facts going to guilt or innocence. The rule applies even if the dismissal occurs after jeopardy has attached.

Thus reprosecution has been permitted after an accusatory instrument is dismissed for legal insufficiency, even after trial had begun. For instance, in Matter of Bishop v. Supreme Ct., 14 N.Y.2d 321, 251 N.Y.S.2d 466, 200 N.E.2d 450, remittitur amd. 14 N.Y.2d 959, 253 N.Y.S.2d 996, 202 N.E.2d 377, cert. den. 380 U.S. 909, 85 S.Ct. 892, 13 L.Ed.2d 796, defendant had been indicted for carnal abuse as a felony, based on a predicate offense that was an essential element of the felony count. After trial had started, the predicate conviction was vacated, resulting in dismissal of the felony count of the indictment. The predicate conviction was reinstated on appeal, however, and this court held that double jeopardy principles did not bar a new trial on the felony count.

People ex rel. North v. Skinner, 280 App.Div. 611, 116 N.Y.S. 576, affd. 305 N.Y. 711, 112 N.E.2d 783, is closely analogous to the instant case. There, after trial had started, defendant moved to dismiss because an obvious error in an affidavit constituted a discrepancy with the information. The information was dismissed, but when defendant sought to bar retrial, it was held that double jeopardy did not prevent reprosecution. The court reasoned that defendant, having sought and received dismissal because of the information's insufficiency, could not then use double jeopardy principles to prevent a new prosecution.

In fact, until the Supreme Court's most recent flurry of decisions in the double jeopardy area, this court had held that whenever a trial order of dismissal, made on motion by defendant, was legal, as opposed to factual, in nature, appeal and reprosecution were permissible (People v. Sabella, 35 N.Y.2d 158, 164-169, 359 N.Y.S.2d 100, 105-110, 316 N.E.2d 569, 572-576, remittitur amd. 35 N.Y.2d 853, 363 N.Y.S.2d 89, 321 N.E.2d 880; but cf. People ex rel. Meyer v. Warden, 269 N.Y. 426, 429-430, 199 N.E. 647, 648-649). While the Sabella holding was abandoned in People v. Brown, 40 N.Y.2d 381, 383, 386 N.Y.S.2d 848, 849, 353 N.E.2d 811, 812, cert. den. 429 U.S. 975, 97 S.Ct. 482, 50 L.Ed.2d 583, mot. for rearg. den. 42 N.Y.2d 1015, 398 N.Y.S.2d 1034, 368 N.E.2d 289, on constraint of Supreme Court cases, Sabella does indicate that under the statutory and constitutional law of this State, reprosecution is permitted after an accusatory instrument had been dismissed at trial...