People v. Menna

• Court: New York Court of Appeals
• Writing for the Court: BREITEL; FUCHSBERG, J., dissents and votes to reverse in the following opinion in which WACHTLER; FUCHSBERG
• 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.
• Decision Date: 11 June 1975

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

Page 542

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...