People v. Lieberman
| Decision Date | 24 February 1981 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Hyman LIEBERMAN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Jay Goldberg, New York City, for defendant-appellant.
Ronald A. Krauss, New York City, of counsel (Bruce Allen, New York City, with him on the brief, Robert M. Morgenthau, New York City), for the respondent.
Before SANDLER, J. P., and SULLIVAN, MARKEWICH, LUPIANO and SILVERMAN, JJ.
After defendant's plea of guilty to a federal indictment charging him with a conspiracy to violate the federal narcotics law during a period extending from July, 1974 to September, 1976, he moved under CPL § 40.20 to bar his prosecution on the instant indictment charging him with the criminal sale of a controlled substance in the first degree in connection with a sale of a substance containing cocaine to a police officer in October, 1975. The motion was denied. The defendant then entered a plea of guilty to criminal sale of a controlled substance in the third degree. The single issue raised on this appeal from the judgment thereafter entered is the correctness of the ruling denying the motion pursuant to CPL § 40.20.
Preliminarily, the law appears unsettled as to whether a plea of guilty following denial of a 40.20 motion waives that defense. In People v. Dodson, 48 N.Y.2d 36, 421 N.Y.S.2d 47, 396 N.E.2d 194, relied on by the District Attorney on this issue, the Court of Appeals found a waiver where no motion had been made prior to the plea. I find no clear principle articulated in the Dodson opinion that would control the issue before us. In my view, there are compelling reasons to permit appellate review of the question under the circumstances presented.
In Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195, reversing People v. Menna, 36 N.Y.2d 930, 373 N.Y.S.2d 541, 335 N.E.2d 848, the United States Supreme Court squarely held that a plea of guilty does not by itself waive a constitutional double jeopardy claim. Indisputably the courts of this state are not required to reach the same result with regard to a motion pursuant to section 40.20 of the CPL that does not raise a federal constitutional claim. When it is considered, however, that CPL § 40.20 both applies and extends the constitutional double jeopardy doctrine, and is designed to serve similar purposes, it is hard to justify a different response to a motion under that section. Nor does it seem to me sensible to require a defendant presenting such an issue to try his case although he acknowledges guilt in order to preserve his right to appellate review.
It is true that appellate review of such an issue may be independently obtained by way of an Article 78 proceeding prior to disposition of the case in the trial court. Cf. Napoli v. Justices of the Supreme Court of Kings County, 58 App.Div.2d 614, 395 N.Y.S.2d 702, aff'd, 43 N.Y.2d 745, 401 N.Y.S.2d 791, 372 N.E.2d 578. However, the efficient administration of our criminal justice system is hardly well served by compelling defendants to utilize a procedural device that inevitably delays, often for substantial periods of time, the disposition of the charges in the trial court.
Turning to the merits of the issue, the controlling rule with regard to a motion under CPL § 40.20 where a defendant has been previously prosecuted on a Federal conspiracy charge was explicitly set forth in People v. Abbamonte, 43 N.Y.2d 74, 79, 400 N.Y.S.2d 766, 371 N.E.2d 485:
"... where the substantive drug offense was not, but could have been, alleged and proved in the prior Federal conspiracy prosecution, subsequent State prosecution offends the statutory mandate."
The question thus presented is whether the cocaine transaction charged in the State indictment "could have been ... alleged and proved in the prior Federal conspiracy prosecution." The fact that the several overt acts listed in the Federal indictment did not specify transactions in cocaine is not decisive on this issue. The Federal law seems clear that such a transaction could have been alleged and proved under the broad wording of the Federal conspiracy indictment (United States v. Knuckles, 581 F.2d 305, 2d Cir.) if the transaction was in fact part of the conspiracy charged.
On this question, in my view the decisive one, I do not agree with Trial Term that the rulings of the United States District Court Judge in the trial of other alleged conspirators that followed the defendant's plea of guilty to the federal indictment, and the accompanying comments of that court, the prosecutor and counsel, are dispositive. The rulings, and the accompanying statements, are open to quite varied interpretations.
More significant is the defendant's own description of the conspiracy during the colloquy attending his plea of guilty to the federal conspiracy, a description that seems to me persuasive that the cocaine transaction charged in the State indictment was a separate criminal enterprise and not in fact part of the federal conspiracy. This conclusion is reinforced by the defendant's later statements in connection with his plea of guilty to the instant indictment. Accordingly, the judgment of the Supreme Court, New York County, (Rothwax, J.) rendered November 30, 1979, convicting the defendant of Criminal Sale of a Controlled Substance in the Third Degree and sentencing him to a term of five to fifteen years to run concurrently with a federal sentence should be affirmed.
Judgment, Supreme Court, New York County, rendered on November 30, 1979, affirmed.
All concur except SILVERMAN, J., who concurs in an opinion and MARKEWICH, J., who concurs with such concurring opinion and with the above in a separate opinion.
We are all agreed that the judgment of conviction in this case should be affirmed whether or not the plea of guilty constituted a waiver of the statutory previous prosecution bar of CPL § 40.20. I see no reason for us now to add this statutory bar to the category of defenses which are not waived by a plea of guilty and may be urged on appeal as...
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