People v. Lasko

• Decision Date: 21 July 1964
• Citation: People v. Lasko, 252 N.Y.S.2d 209, 43 Misc.2d 693 (N.Y. Cty. Ct. 1964)
• Parties: The PEOPLE of the State of New York v. Joseph P. LASKO, Defendant.
• Court: New York County Court

Page 209

252 N.Y.S.2d 209

43 Misc.2d 693

The PEOPLE of the State of New York v. Joseph P. LASKO, Defendant.

Rensselaer County Court, Special Term.

July 21, 1964.

M. Andrew Dwyer, Jr., Troy, for defendant.

Pierce H. Russell, Dist. Atty. (James J. Reilly, Asst. Dist. Atty., of counsel), for the People.

JOHN T. CASEY, Judge.

In two separate counts, the first a Felony, the second a Misdemeanor, Indictment No. R-2047 of the Rensselaer County Court accuses the Defendant of the crimes of Assault Second Degree (Section 242 of the Penal Law) and Resisting a Public Officer in the Discharge of his Duties (Section 1851 of the Penal Law) in haec verba:

'The Grand Jury of the County of Rensselaer, by this Indictment, accuse the above named Defendant of the crime of Assault in the Second Degree, committed as follows:

'The said Defendant, in the County of Rensselaer, on or about the seventh day of April, 1964, with intent to prevent and resist the lawful apprehension and detention of said Defendant, wilfully and wrongfully assaulted one Michael J. Pastore, a Police Officer of the City of Troy, New York, by striking him about the face and body and by pushing him and by shoving him, all in violation of Section 242, Sub-division 5, of the Penal Law of the State of New York.

'SECOND COUNT

'And the Grand Jury aforesaid, by this Indictment, further accuses the above named Defendant of the crime of RESISTING PUBLIC OFFICER IN THE DISCHARGE OF HIS DUTY, committed as follows:

'The said Defendant, in the City of Troy, at the same time and place mentioned in the first count of this Indictment, did wilfully resist, delay and obstruct a Police Officer, to wit, one Michael J. Pastore, a Police Officer of the City of Troy, New York, while said Officer was attempting to discharge a duty of his Office, to wit: to apprehend and detain the said Defendant and to deliver him to the Central Police Station in the City of Troy, all in violation of Section 1851 of the Penal Law of the State of New York.'

In its entirety, Section 1851, the subject of the Defendant's motion here, is entitled 'Resisting Public Officer in the Discharge of his Duty' and provides 'A person who, in any case or under any circumstances not otherwise specially provided for, wilfully resists, delays, or obstructs a Public Officer in discharging, or attempting to discharge, a duty of his office, is guilty of a misdemeanor'.

Preliminary to the trial of the allegations of the Indictment, the Defendant has moved this Court for a Dismissal of the Second Count of this Indictment, urging that the lesser charge cannot prevail as a matter of Law primarily because the acts underlying both counts of the Indictment are identical in fact and, therefore, violative of Sections 278 and 279 of the Code of Criminal Procedure which prohibit charging more than one crime in one Indictment. The Defendant claims, at very least, the lesser of the two counts must fall.

A second ground for dismissal is predicated on the Defendant's interpretation of the wording of § 1851 of the Penal Law embodied in the words 'in any case or under any circumstances not otherwise specially provided for'. In this regard, he argues that the charge of Assault Second Degree in this Indictment is such a situation as 'is specially provided for' and falls within the quoted restrictive wording of this Statute (§ 1851) preventing prosecution under § 1851 as long as the Assault count remains.

Inasmuch as this is a motion preliminary to trial, no proof has as yet been adduced to determine whether the acts alleged against the Defendant in both counts of the Indictment are identical in fact or separate and distinct acts arising out of a single factual transaction.

If, as the Defendant claims, however, the acts underlying both counts of the Indictment are identical, certainly Sections 278 and 279 of the Code of Criminal Procedure would not be violated for, squarely then, the transaction would fall within the exception of Section 278 of the Code which provides that 'The Indictment must charge but one crime and in one form except as in the next Section provided' (italics supplied) and Section 279 expressly limits Section 278 in the words that 'When there are several charges for the same act or transaction, constituting different crimes or the same crime alleged to have been committed in a different manner or by different means, or for two or more acts or transactions connected together or constituting parts of a common scheme or plan, or for two or more acts or transactions constituting crimes of the same or a similar character, instead of having several indictments or informations, the whole may be joined in one indictment or information in separate counts.' (Italics supplied.)

This determination, however, is but partial answer to the Defendant's contention and not wholly determinative of this Motion.

The importance of the proposition as to whether the acts alleged against this Defendant in both counts of the Indictment are identical in fact or separate in fact but arising out of the same transaction relates integrally and exclusively to the question of Punishment (Section 1938 of the Penal Law) (Section 2190, Subdivision 4 of the Penal Law).

In a single criminal transaction, if separate and distinct criminal acts are committed, and these violate more than one Section of the Penal Law, separate and even consecutive punishments for each of them would be proper. (People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, at p. 264, 159 N.Y.S.2d 203, at p. 206, 140 N.E.2d 282, at p. 284; citing People v. Repola, 305 N.Y. 740, 113 N.E.2d 42; People ex rel. Poster v. Jackson, 303 N.Y. 680, 102 N.E.2d 837. See also People v. Black, 18 A.D.2d 719, 236 N.Y.S.2d 240, holding that separable acts arising out of the same criminal transaction may be punished separately. Nor is there any dispute that, if a single inseparable act violates more than one Penal Statute and is a material element of the violation of another, there would have to be single punishment. People ex rel. Maurer v. Jackson, supra.

While an act made criminal and punishable in different ways may be punishable only one way (Section 1938 of the Penal Law), still, if the proof manifests the commission of separable and distinct criminal acts which might have been committed relatively at the same time and charged in one Indictment, double punishment could be upheld. People v. Savarese, 1 Misc.2d 305, 114 N.Y.S.2d 816. This case also outlines the test to determine whether the punishment should be single or double in the words: 'Were all of the acts performed necessary to or incidental to the commission of a single crime and motivated by an intent to commit that crime?' People v. Savarese, 1 Misc.2d 305, 326, 114 N.Y.S.2d 816, 835.

Concurrent sentences on separate counts, however, have been held not to constitute multiple punishment in violation of Section 1838. People ex rel. Maurer v. Jackson, supra.

The prohibition of Section 1938 of the Penal Law relates only to double punishment with respect to different crimes arising from the same transaction and not to double jeopardy for convictions of separate and independent crimes resulting from the same act. People v. Josie, 206 Misc. 704, 134 N.Y.S.2d 283, modified 286 App.Div. 995, 144 N.Y.S.2d 437.

Application of Martinis v. Supreme Court, 20 A.D.2d 79, 244 N.Y.S.2d 949, is not to the contrary for that decision does not hold that separate and distinct acts may not constitute separate and distinct crimes. But rather where in a separate first trial an essential element common to the commission of two or more crimes has been found not to exist, that Defendant may not be tried for another crime though differently titled that seeks to establish this fact because of the Constitutional prohibition against Double Jeopardy or because of the Doctrine of Collateral Estoppel. Israel v. Wood Dolson Co., 1 N.Y.2d 116, 151 N.Y.S.2d 1, 134 N.E.2d 97; People v. Roderman, 34 Misc.2d 497, 229 N.Y.S.2d 209.

In People v. Walker, 25 Misc.2d 942, 212 N.Y.S.2d 936, a Disorderly Conduct conviction tried prior to a violation of Section 1851, which arose out of the same transaction, was reversed on Appeal and never retried. Attempted trial of a violation of Section 1851 was then prevented because of the Doctrine of Equitable Estoppel. See also Matter of Gilchrist v. County Court of Erie County, 21 A.D.2d 746(3), 250 N.Y.S.2d 163.

Since this Defendant has not yet been tried on any charges arising out of the alleged incidents against him, no resort may be had here to either Double Jeopardy or Collateral Estoppel for there can be not doubt that identical criminal acts can violate more than one Penal Statute and conviction may be had under either or both for Section 1938 of the Penal Law forbids multiple punishments not multiple convictions or sentences that do not spell punishment. People v. Gardner, 39 Misc.2d 157, 240 N.Y.S.2d 225.

In the matter of punishment, to which this Motion must therefore necessarily relate, determination is impossible until the factual situation is bared or proof offered on the trial of the issues. In this respect, the Defendant's Motion is premature.

The Defendant's Second ground for Dismissal is therefore undertaken and now considered.

Argument has been advanced that whether or not the Assault charge here is a separate act arising out of a single transaction or the identical act which also supports the violation of Section 1851 in the second count of this Indictment, the charge of Assault is a case or at least circumstances 'otherwise specially provided for' in Section 1851 which makes these charges mutually exclusive and one or the other must fall or at least an election between the counts of this Indictment must be compelled.

Section 279-a of the Code of Criminal Procedure does not require the People to elect between the Counts any Indictment except after the commencement of the trial and then only for good...