People v. Menna

• Decision Date: 11 June 1975
• Citation: 36 N.Y.2d 930,373 N.Y.S.2d 541
• Parties: , 335 N.E.2d 848 The PEOPLE of the State of New York, Respondent, v. Steve MENNA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 541

373 N.Y.S.2d 541

36 N.Y.2d 930, 335 N.E.2d 848

The PEOPLE of the State of New York, Respondent, v. Steve MENNA, Appellant.

Court of Appeals of New York.

June 11, 1975.

Robert A. Naidus and William E. Hellerstein, New York City, for appellant.

Eugene Gold, Dist. Atty. (Richard E. Mischel, New York City, of counsel), for respondent.

Order affirmed. Having knowingly and voluntarily chosen to plead guilty after denial of his motion to dismiss the indictment on the ground of double jeopardy, the defenda waived his right later to raise the defense and remains bound by his plea. (See People v. La Ruffa, 37 N.Y.2d 58, 371 N.Y.S.2d 434, 332 N.E.2d 312.)

BREITEL, C.J., and JASEN, GABRIELLI, JONES and COOKE, JJ., concur.

FUCHSBERG, J., dissents and votes to reverse in the following opinion in which WACHTLER, J., concurs.

FUCHSBERG, Judge (dissenting).

Menna, the defendant here, was adjudicated to be in contempt, in violation of section 750 of the Judiciary Law, for his refusal to testify before a Grand Jury, and sentenced to a jail term. This case stems from his subsequent indictment for contempt under the Penal Law (see Penal Law, § 215.50) arising out of precisely the same acts for which the earlier contempt charge had been brought.

In People v. Colombo, 25 N.Y.2d 641, 306 N.Y.S.2d 258, 254 N.E.2d 340, a case very close on its facts to the one here, the indictment was dismissed on the ground of double jeopardy, but reinstated by the Appellate Division (32 A.D.2d 812, 302 N.Y.S.2d 488), whose decision, in turn, was upheld by our court (25 N.Y.2d 641, 306 N.Y.S.2d 258, 254 N.E.2d 340). Upon certiorari to the United States Supreme Court, it vacated and remanded 'for further consideration in light of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435' (400 U.S. 16, 91 S.Ct. 99, 27 L.Ed.2d 16). We then adhered to our original decision (29 N.Y.2d 1, 323 N.Y.S.2d 161, 271 N.E.2d 694). Again, certiorari was sought, and the Supreme Court vacated and remanded once more (405 U.S. 9, 92 S.Ct. 756, 30 L.Ed.2d 762). It was of the view that our court had 'misconce(ived) the nature of the contempt judgment * * * for purposes of the Double Jeopardy Clause' (p. 11, 92 S.Ct. 756). For the second time it remanded the case to us because of the possibility that the two separate charges of contempt might be 'intertwined'.

It was when Colombo was at that stage that Menna came up for trial on his criminal contempt indictment. He pleaded guilty, but not before his double jeopardy defense was summarily rejected by the trial court in the following language: 'Well, on the basis of the law as it exists today--whether the Court of Appeals is going to reconsider its decision in People v. Colombo or not, this court has no way of knowing--but as the law stands today, as interpreted by our Court of Appeals, the court has no other alternative but to deny the motion.'

Some time After Menna's plea and sentence, our court, acting for the third time in Colombo, dismissed the latter's indictment as 'barred by...