People v. Key

CourtUnited States State Supreme Court (New York)
Writing for the CourtPER CURIAM; GLICKMAN, P.J., and PITTONI; GAGLIARDI; GAGLIARDI
Citation87 Misc.2d 262,391 N.Y.S.2d 781
Decision Date22 March 1976
PartiesThe PEOPLE of the State of New York, Appellant. v. Robert F. KEY, Respondent.

Page 781

391 N.Y.S.2d 781
87 Misc.2d 262
The PEOPLE of the State of New York, Appellant.
v.
Robert F. KEY, Respondent.
Supreme Court, Appellate Term, Ninth and Tenth Judicial Districts.
March 22, 1976.

Page 783

Denis Dillon, Dist. Atty., Nassau, Mineola, (Anthony J. Girese, New York City, and Richard P. Broder, Williston Park, of counsel), for appellant.

Robert C. Alexander, Mineola, for respondent.

Before GLICKMAN, P.J., and PITTONI and GAGLIARDI, JJ.

MEMORANDUM

PER CURIAM.

Order dated May 2, 1975 which granted reargument and upon reargument adhered to its original decision reversed on the law, information reinstated and matter remanded to the court below for further proceedings in light of the opinion of this court.

Appeal from orders, dated March 19, 1975 and April 18, 1975 dismissed. The orders were superseded by the order granting reargument (People v. Saddler, 38 A.D.2d 964, 331 N.Y.S.2d 705; see People v. McCaskey, 46 A.D.2d 692, 360 N.Y.S.2d 270).

On July 24, 1974 defendant was charged with operating a motor vehicle with more than .10 of one percentum by weight of alcohol in his blood (Vehicle and Traffic Law § 1192(2)). It appears that at that time the defendant was served with both a simplified traffic information and a supporting deposition even though he made no demand for the deposition. On March 19, 1975 a jury was empaneled and sworn. After the court addressed the jury, defendant moved to dismiss the information. The motion was granted on the ground that the information and supporting deposition failed to allege facts which would tend to show that the defendant committed every element of the offense charged. The trial justice then dismissed the jury.

On March 25, 1975 the People moved for reargument. The trial judge granted reargument and upon reargument adhered to its original decision stating in part that since jeopardy attached under CPL 40.30 the court could not in good conscience grant the People the relief requested. Thereafter, the People appealed from both orders.

CPL 450.20(1) permits the People to appeal from an order of the trial court which dismisses an accusatory instrument for legal insufficiency pursuant to CPL 170.30. Accordingly, in situations where the lower courts have acted prior to trial the appellate courts can review the accusatory instrument and, when warranted, grant the People the appropriate relief. However, once jeopardy has attached, courts must consider the issue of double jeopardy. Under New York law jeopardy attaches when a jury has been empaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn (CPL § 40.30(1)(b); People v. Gesegnet, 47 A.D.2d 333, 366 N.Y.S.2d 518). Since in the instant matter the jury was sworn there can be no doubt that jeopardy had attached, and since the trial court denied the relief sought by the People on reargument because of double jeopardy, the issue of double jeopardy must be considered.

Recently, the Supreme Court of the United States held that an appeal by the People following a verdict of acquittal would violate the double jeopardy clause of the Fifth Amendment if further proceedings directed to the resolution of factual issues going to the elements of the offense charged, would be required upon reversal and remand (United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250; cf. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232).

In discussing the applicability of these decisions on appeals by the People from orders of dismissal Judge Nunez of the Appellate Division, First Department, in a concurring opinion in People v. Brown, 48

Page 784

A.D.2d 95, 98, 368 N.Y.S.2d 171, 174, stated that:

'We read United States v. Jenkins, supra, and United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232, 16 Cr.L. 3071 (Feb. 25, 1975) as holding that only where there has been a jury verdict of guilty or findings by the court in a nonjury trial to support a verdict of guilty, but the trial court in either case then finds in the defendant's favor on a question of law, will appeal be permitted. In such case the Double Jeopardy Clause does not bar an appeal because errors...

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19 practice notes
  • People v. Canty
    • United States
    • New York County Court
    • 2 d1 Maio d1 2016
    ...People v. Cohen, 131 Misc.2d 898, 900, 502 N.Y.S.2d 123 ; People v. Hust, 74 Misc.2d 887, 890, 346 N.Y.S.2d 303. See also People v. Key, 87 Misc.2d 262, 267, 391 N.Y.S.2d 781 [App.term, 2nd Dept.], aff'd, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147. But while CPL § 100.25 and § 100.40 p......
  • People v. Smith
    • United States
    • New York Justice Court
    • 3 d1 Outubro d1 1994
    ...or offenses charged (CPL §§ 100.10[2][a] & 100.25[2]; People v. Nuccio, supra at 104, 571 N.Y.S.2d 693, 575 N.E.2d 111; People v. Key, 87 Misc.2d 262, 266, 391 N.Y.S.2d 781, aff'd 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147). Where a defendant timely requests a supporting deposition, th......
  • People v. Peak Carting, Inc., 2005-442 S CR.
    • United States
    • New York Supreme Court — Appellate Term
    • 19 d1 Dezembro d1 2005
    ...should be raised by motion, upon notice to the People, prior to trial and in writing (see CPL 170.45, 210.20, 210.45; People v. Key, 87 Misc 2d 262 [1976], affd 45 NY2d 111 [1978]; see also People v. Guilford, NYLJ, Nov. 10, 1986, at 17, col 1 [App Term, 9th & 10th Jud Dists]; People v. Hol......
  • People v. Sorrentino, No. ST144R9LRV.
    • United States
    • New York City Court
    • 15 d2 Dezembro d2 2015
    ...City of Yonkers, 1986) ; People v. Hust, 74 Misc.2d 887, 890, 346 N.Y.S.2d 303 (County Court, Broome County, 1973) ; People v. Key, 87 Misc.2d 262, 267, 391 N.Y.S.2d 781 (Appellate Term, 2d Dept., 1976), aff'd, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147 (1978).In addition, where the ch......
  • Request a trial to view additional results
19 cases
  • People v. Canty
    • United States
    • New York County Court
    • 2 d1 Maio d1 2016
    ...People v. Cohen, 131 Misc.2d 898, 900, 502 N.Y.S.2d 123 ; People v. Hust, 74 Misc.2d 887, 890, 346 N.Y.S.2d 303. See also People v. Key, 87 Misc.2d 262, 267, 391 N.Y.S.2d 781 [App.term, 2nd Dept.], aff'd, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147. But while CPL § 100.25 and § 100.40 p......
  • People v. Smith
    • United States
    • New York Justice Court
    • 3 d1 Outubro d1 1994
    ...or offenses charged (CPL §§ 100.10[2][a] & 100.25[2]; People v. Nuccio, supra at 104, 571 N.Y.S.2d 693, 575 N.E.2d 111; People v. Key, 87 Misc.2d 262, 266, 391 N.Y.S.2d 781, aff'd 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147). Where a defendant timely requests a supporting deposition, th......
  • People v. Peak Carting, Inc., 2005-442 S CR.
    • United States
    • New York Supreme Court — Appellate Term
    • 19 d1 Dezembro d1 2005
    ...should be raised by motion, upon notice to the People, prior to trial and in writing (see CPL 170.45, 210.20, 210.45; People v. Key, 87 Misc 2d 262 [1976], affd 45 NY2d 111 [1978]; see also People v. Guilford, NYLJ, Nov. 10, 1986, at 17, col 1 [App Term, 9th & 10th Jud Dists]; People v. Hol......
  • People v. Sorrentino, No. ST144R9LRV.
    • United States
    • New York City Court
    • 15 d2 Dezembro d2 2015
    ...City of Yonkers, 1986) ; People v. Hust, 74 Misc.2d 887, 890, 346 N.Y.S.2d 303 (County Court, Broome County, 1973) ; People v. Key, 87 Misc.2d 262, 267, 391 N.Y.S.2d 781 (Appellate Term, 2d Dept., 1976), aff'd, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147 (1978).In addition, where the ch......
  • Request a trial to view additional results

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