People v. Lavopa

• Decision Date: 27 March 1950
• Citation: 198 Misc. 285
• Parties: The People of the State of New York, Plaintiff,<BR>v.<BR>Frank Lavopa, Defendant.
• Court: New York District Court

198 Misc. 285

The People of the State of New York, Plaintiff,

v.Frank Lavopa, Defendant.

March 27, 1950.

Edward Carey Cohen for defendant.

George B. De Luca, District Attorney (Neal P. Bottiglieri of counsel), for plaintiff.

STACKELL, J.

The defendant was indicted, charged with the crimes of rape in the second degree and assault in the second degree, arising out of an act of sexual intercourse had with the complainant, a seventeen-year-old female. The defendant moves for an order dismissing the indictment. It is alleged in the moving papers that the accusation arose from a situation wherein the police raided an apartment located in the Bronx in which they found the defendant, two other men and four women who were in various stages of undress; that the two men other than this defendant, were in possession of cameras which were seized by the police; that the films found in these cameras were later developed in the police laboratory, which disclosed that some of these women were in the nude and that the defendant in one of the photographs appeared in a long suit of underwear on top of the complainant, as a result of which he was indicted for the crimes of rape and assault.

It further appears that as a result of the aforesaid raid, other charges were placed against this defendant, to wit, an information was filed against him in the Court of Special Sessions which accused him of impairing the morals of three minor children, ages four, five and six respectively, who were in another room of the apartment and presumably asleep at the time, to wit, 1:30 in the morning, in violation of section 483 of the Penal Law. This defendant was also charged with vagrancy as defined in subdivision 4 of section 887 of the Code of Criminal Procedure. The defendant further states in support of his application that he, with the two photographers were tried in the Magistrate's Court, and found guilty of violation of subdivision 4 of section 887 of the Code of Criminal Procedure and sentenced to thirty days in the workhouse, which sentence they served; that thereafter a motion was made in the Court of Special Sessions for a dismissal of the information pending in that court, which charged the defendant with violation of section 483 of the Penal Law (impairing the morals of minors), upon the ground that a trial of the information would subject the defendant to double jeopardy, he having already been convicted of the crime of vagrancy arising out of the same set of facts as alleged in the impairment charge; that the Court of Special Sessions granted the motion and the information was accordingly dismissed.

It is now urged in this court that a trial upon the indictment would likewise subject the defendant to a second jeopardy in violation of his statutory and constitutional rights; that the charges in the indictment filed herein arose out of the same circumstances as the vagrancy accusation, of which the defendant was duly convicted and sentenced. It is further contended that the rape charge against the defendant cannot be sustained upon the basis of a seized photograph since penetration is a necessary ingredient of the crime of rape in the second degree, and that the act of intercourse is denied by the defendant, and it is urged that it is likewise denied by the complainant who is alleged to have testified before the grand jury. With respect to this second ground urged in behalf of the defendant, I have read the Grand Jury minutes and although the testimony of the complainant is somewhat vague and by no means satisfactory, in my opinion the same presents a question of fact and therefore I cannot dispose of it as a matter of law.

With respect to the defendant's first contention, that the prosecution of the indictment herein is estopped by reason of double jeopardy, the law seems to be well established. The test is whether the offenses are identical in law and in fact, whether they are of the same legal character and whether the same evidence will support both charges. The "same offense" as used in the constitution means the identical act and crime. The question therefore arises whether the defendant was previously convicted of the same act in the Magistrate's Court for which he is now being prosecuted in the County Court. An examination of the affidavit signed by the arresting officer in the Magistrate's Court reveals the following statement by the arresting officer: "Deponent states that on said date, and at the time and in the premises as stated above, the defendants were in the premises, 1595 Unionport Road; that the defendant, Frank Lavopa had unlawful sexual intercourse with a female, one `Mary Jones', of the Borough of the Bronx".

This was the statement upon which the defendant was convicted in the Magistrate's Court and sentenced to serve thirty days, which sentence has been duly executed. In order to determine whether this defendant is about to be placed in double jeopardy for the same offense, it is necessary to consider the crime for which he has been indicted in this court, to wit, rape in the second degree. That crime is defined by section 2010 of the Penal Law and reads as follows: "A person who perpetrates an act of sexual intercourse with a female, not his wife, under the age of eighteen years, under circumstances not amounting to rape in the first degree, is guilty of rape in the second degree, and punishable with imprisonment for not more than ten years."

It is true that in the Magistrate's Court, the defendant was charged with vagrancy. It is likewise true in the Court of Special Sessions, he was charged with impairing the morals of a minor and that in this court he is charged with the crime of rape in the second degree. It is contended, in behalf of the defendant, that if guilty, he committed but one crime, to wit, the act of sexual intercourse with this female, and that the District Attorney should not be permitted to take this one act of the defendant and to prosecute him therefor upon different charges and in different courts and that to do so is a violation of the provisions dealing with double jeopardy. He points out that the right of a defendant to be tried only once for the same offense has long been recognized and cautiously guarded by the common law among all English speaking nations, and has been restated...