People v. Minton

• Decision Date: 04 August 1967
• Citation: 54 Misc.2d 552,283 N.Y.S.2d 73
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Arthur R. MINTON, Jr., Defendant.
• Court: New York District Court

Page 73

283 N.Y.S.2d 73

54 Misc.2d 552

The PEOPLE of the State of New York, Plaintiff, v. Arthur R. MINTON, Jr., Defendant.

District Court, First District, Suffolk County.

Aug. 4, 1967.

George J. Aspland, Dist. Atty., Lloyd A. Feuer, Patchogue, of counsel, for the People.

James D. Saver, New York City, George A. Calabrese, Commack, of counsel, for defendant.

OSCAR MUROV, Judge.

Defendant is charged with resisting a public officer in the discharge of his duty, in violation of Section 1851 of the Penal Law.

Defendant was also charged with an assault on the same officer, growing out of the resisting arrest, but was acquitted of the crime of assault in the third degree after trial by jury.

On this motion, defendant seeks permission to interpose the additional defense of prior acquittal and double jeopardy, on the ground that the trial of the charge of resisting arrest will of necessity involve a retrial of the issues in the assault charge of which defendant has already been acquitted.

The People contend that defendant's position is without merit and that the two crimes are separate and distinct.

The People cite in support, People v. McNeil, 21 A.D.2d 1, 247 N.Y.S.2d 734; People v. Cherry, 307 N.Y. 308, 121 N.E.2d 238; and People v. Dreares, 15 A.D.2d 204, 221 N.Y.S.2d 819, affd. 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812.

The McNeil case did not involve the defense of double jeopardy or prior acquittal. In that case, defendant contended that his prior acquittal of both jaywalking and disorderly conduct for which he was arrested established the arrest to have been unlawful, and he was therefore entitled to resist such an arrest with reasonable force. In other words, the defense was not double jeopardy, but rather, that the defendant had the right to resist an unlawful arrest by use of force, pursuant to Penal Law, Sec. 246, subdivision 3.

Similarly, the defense interposed in the Cherry case did not rest upon double jeopardy or prior acquittal, it involved defendant's right to resist an illegal arrest.

In the Dreares case, as in the McNeil case, the prior acquittal of the defendant of the underlying charges for which he was arrested was held by the Court to establish the arrest to have been unlawful, and therefore entitling defendant to resist such an arrest with reasonable force. Here, again, the defense was not double jeopardy, or a prior acquittal barring a second prosecution.

In the instant case, the charge of assault in the third degree was not the underlying charge for which defendant was arrested and which arrest defendant allegedly resisted. The assault on the police officer of which defendant was acquitted emanated from the alleged resistance to the arrest.

The cases cited by the People are therefore not relevant to this application by the defendant for permission to interpose the additional defense of prior acquittal and double jeopardy.

One of the three pleas authorized by the Code of Criminal Procedure in Section 332 is 'A plea of a former judgment of conviction or acquittal of the crime charged which may be pleaded either with or without the plea of not guilty.'

Section 332 of the Code is made applicable in all courts of special sessions by Section 62 of the Code.

An application for leave to interpose the plea of being twice put in jeopardy may be made at trial. A defendant is not limited to making his plea of former conviction or acquittal at the time of arraignment. (People v. Smith, 172 N.Y. 210, 211, 64 N.E. 814; People v. Wendel, 128 App.Div. 437, 112 N.Y.S. 837).

Section 9 of the Code of Criminal Procedure provides:

'No person can be subjected to a second prosecution for a crime for which he has once been prosecuted, and duly convicted or acquitted.'

Article 1, Section 6 of the New York State Constitution provides:

'No person shall be subject to be twice put in jeopardy for the same offense'.

As stated in Paperno and Goldstein's Criminal Procedure in New York, 1960 publication, at Section 242:

'Both in the area of double jeopardy, and in the related one of determining whether there has been a former conviction or acquittal of the same offense, the question of what constitutes the same offense arises * * *.'

'The tests be applied in determining whether offenses are identical have been stated to be:

'(a) whether the offenses are the same in fact and in law, (b) whether they are of the same legal character, (c) whether the same evidence will support both charges.' (People v. Spitzer, 148 Misc. 97, 266 N.Y.S.2d 522)

In People v. Bevins, 74 Misc. 377, 380, 134 N.Y.S. 212, 214 (Co.Ct.1911) the court pointed out:

'It is laid down as a principle well established that, unless the first indictment was such as the prisoner might have been conficted upon by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second. * * *'

In that case it was held that a prior prosecution for public intoxication did not bar a later prosecution for disorderly conduct, based upon some of the same actions, for one can be drunk without being disorderly and, therefore, different facts would have to be proved at the second trial, and that although the crimes may be closely related on the facts, they are separate and distinct as a matter of law.

In People v. Fennell, 10 A.D.2d 78, 197 N.Y.S.2d 327 (First Dept. 1960) defendant appealed from a judgment of the Court of Special Sessions convicting him of the crime of assault, third degree. He urged on the appeal that the conviction is barred upon the ground of former jeopardy.

In that case, as a result of an altercation with a railway policeman, defendant was separately charged with disorderly conduct and with assault. After trial defendant was acquitted of the disorderly conduct charge. The minutes of the trial on the disorderly conduct charge revealed that the magistrate refused to take proof concerning the alleged assault.

Justice Frank held that defendant had not been placed twice in jeopardy stating as follows (p. 79, 197 N.Y.S.2d p. 329):

'While a defendant may not be placed in jeopardy twice for the same offense (People v. Silverman, 281 N.Y. 457, 24 N.E.2d 124), it does not follow that a person may not be convicted of several crimes arising out of the same incident. If the crimes are separate and distinct as a matter of law, a defendant may be convicted of each, although the facts may be closely related.'

The Court went on to distinguish the case of People ex rel. Ticineto v. Brewster, 241 App.Div. 467, 273 N.Y.S. 16, relied upon by the appellant, stating (p. 80, 197 N.Y.S.2d p. 329):

'There, the relator had been charged with two distinct offenses, disorderly conduct and assault. However, since both required proof of identical acts, this court properly held that the defendant was placed in jeopardy. That is not the situation in the case before us. The offense of which defendant was acquitted in the Magistrate's Court was different from the crime charged in the information. The Magistrate refused to receive or consider evidence concerning the assault, and the complaint did not allege any facts necessary to sustain such a charge. Conversely, the information filed in the Court of Special Sessions alleges only an assault. Each charge required different facts to be proved, although both arose from a single event. It follows that the two offenses were not the same in fact and law. People ex rel....