People v. Muniz

• Court: New York Court of Appeals
• Writing for the Court: LEVINE; KAYE
• Citation: 91 N.Y.2d 570,673 N.Y.S.2d 358,696 N.E.2d 182
• Decision Date: 04 June 1998
• Parties: , 696 N.E.2d 182, 1998 N.Y. Slip Op. 5176 The PEOPLE of the State of New York, Respondent, v. Manuel A. MUNIZ, Appellant.

Page 358

673 N.Y.S.2d 358 91 N.Y.2d 570, 696 N.E.2d 182, 1998
N.Y. Slip Op. 5176 The PEOPLE of the State of New York, Respondent,
v.
Manuel A. MUNIZ, Appellant. Court of Appeals of New York. June 4, 1998.

Page 359

George Grun, Riverhead, and Robert C. Mitchell, for appellant.

James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Glenn Green, of counsel), for respondent.

OPINION OF THE COURT

LEVINE, Judge.

Defendant was indicted, following the shooting death of his ex-wife's current husband, on three separate counts of the crime of murder in the second degree. Each of the three counts reflected an alternative theory of the crime: intentional murder (Penal Law § 125.25[1] ); depraved indifference to human life by recklessly engaging in conduct which created a grave risk of death

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(Penal Law § 125.25[2] ) and felony murder (Penal Law § 125.25[3] ), in having committed the crime of burglary and, in furtherance of that crime or immediate flight therefrom, inflicting an injury to the victim resulting in death. After a jury trial, defendant was acquitted of the intentional murder count, convicted of manslaughter in the second degree (a lesser included offense of depraved indifference murder under count two), and also convicted of felony murder under count three. Defendant was sentenced to 25 years to life imprisonment for the felony murder conviction, and 5 to 15 years for the conviction of second-degree manslaughter, concurrently.

On appeal, the Appellate Division modified by affirming defendant's conviction of second-degree manslaughter and, in the interest of justice, reversing the felony murder conviction based on an erroneous jury instruction and ordering a new trial of that count alone (204 A.D.2d 576, 612 N.Y.S.2d 168). Defendant, on remand, pleaded guilty to first-degree manslaughter in satisfaction of the felony-murder charge, and was sentenced to 8 1/3 to 25 years, to run concurrently with the previous sentence imposed on the conviction for manslaughter in the second degree (see, Penal Law § 70.25[2] ). Defendant fully allocuted to the shooting of his former wife's husband. As a condition to, and integral part of, the negotiated plea, defendant formally executed a written waiver of his right to appeal which, in pertinent part, read as follows:

"I HEREBY WAIVE OR GIVE UP MY RIGHT TO APPEAL FROM THIS JUDGMENT OF CONVICTION, WITH THE EXCEPTION OF ANY CONSTITUTIONAL SPEEDY TRIAL CLAIM WHICH I MAY HAVE ADVANCED, THE LEGALITY OF THE SENTENCE, MY COMPETENCY TO STAND TRIAL AND THE VOLUNTARINESS OF THIS WAIVER.

"I EXECUTE OR SIGN THIS WAIVER AFTER BEING ADVISED BY THE COURT AND MY ATTORNEY OF THE NATURE OF THE RIGHT I AM GIVING UP.UP.* * *

"I WAIVE OR GIVE UP MY RIGHT TO APPEAL VOLUNTARILY AND KNOWINGLY, AFTER MY APPELLATE RIGHTS WERE FULLY EXPLAINED BY THE COURT AND MY ATTORNEY, [ ] STANDING BESIDE ME. I HAVE HAD A FULL OPPORTUNITY TO DISCUSS THESE MATTERS WITH MY ATTORNEY AND ANY QUESTIONS I MAY HAVE HAD HAVE BEEN ANSWERED TO MY SATISFACTION" (emphasis supplied).

Defendant nevertheless appealed his first-degree manslaughter conviction, contending that he was twice placed in jeopardy when he was directed to again stand trial, on remand, for felony murder after already having been convicted of a lesser included offense of the same crime, second-degree murder, for the same act of homicide (see, U.S. Const. 5th, 14th Amends.; N.Y. Const., art. I, § 6). Specifically, defendant argued that since he did not expressly waive any constitutional double jeopardy claim by agreeing to waive his right to appeal, he did not waive this particular double jeopardy objection. The Appellate Division concluded, inter alia, that defendant waived his right to appeal the double jeopardy issue by executing the written waiver as part of the negotiated plea and, thus, affirmed his conviction of first-degree manslaughter (239 A.D.2d 363, 657 N.Y.S.2d 972). A Judge of this Court granted defendant's application for leave to appeal.

Before us, defendant again urges that his conviction, upon remand, of a lesser included offense of the felony murder count of the indictment following his original conviction and sentence on a lesser included offense of depraved indifference murder violates constitutional double jeopardy. Defendant further argues that he may assert this...