People v. O'Neill
Citation | 397 N.Y.S.2d 408,59 A.D.2d 540 |
Parties | The PEOPLE, etc., Respondent, v. Harold O'NEILL, Appellant. |
Decision Date | 01 August 1977 |
Court | New York Supreme Court Appellate Division |
Henry J. Boitel, New York City, for appellant.
Carl A. Vergari, Dist. Atty., White Plains (Carl F. Lodes, White Plains, of counsel), for respondent.
Before HOPKINS, J. P., and MARGETT, DAMIANI and RABIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered July 18, 1975, convicting him of manslaughter in the first degree (two counts), upon a jury verdict, and imposing sentence.
Judgment reversed, on the law, second count of the indictment dismissed; new trial ordered as to the first count of the indictment. The findings of fact are affirmed.
At the time of the alleged crimes defendant was a Lieutenant on the Yonkers Police Force. He stands convicted of manslaughter arising out of the fatal shooting of James Fuller, in the early hours of February 22, 1972, at the Glass Door Bar in Yonkers, N.Y. Fuller, the manager of the Glass Door, was the boyfriend of Alicia O'Neill, defendant's daughter, who had been absent from home for three days. She was 19 years old at the time and had a history of drug abuse.
As a result of Fuller's death, on March 2, 1972 defendant was indicted and charged with two counts of manslaughter in the first degree, as follows:
(1) "The defendant, in the City of Yonkers, County of Westchester and State of New York, on or about February 22, 1972 did, with intent to cause serious physical injury to another person, to wit: James Fuller, did cause the death of such person."
(2) "The defendant, in the City of Yonkers, County of Westchester, State of New York, on or about February 22, 1972, did, with intent to cause the death of another person, to wit: James Fuller, he caused the death of such person, to wit: James Fuller while acting under the influence of extreme emotional disturbance."
The first trial commenced in April, 1973. At the close of the People's case the defendant moved to dismiss the second count of the indictment. The court reserved decision but, at the end of the entire case, granted the defendant's motion and dismissed the second count of the indictment, ruling as follows:
The first count of the indictment was submitted to the jury but, after three full days of deliberation, it was unable to reach a verdict, and a mistrial was subsequently declared.
CPL 310.60 provides:
The People appealed from the trial order dismissing the second count in an effort to join that count with the first count at the new trial. The appeal was dismissed by this court (People v. O'Neill, 45 A.D.2d 1038, 358 N.Y.S.2d 182). We recalled and vacated that decision and rendered the following new decision (People v. O'Neill, 45 A.D.2d 958, 359 N.Y.S.2d 328):
The case was thereafter scheduled for trial in the County Court and it became clear that the Trial Judge intended to permit the reinstatement of the second count. The defendant then instituted a proceeding pursuant to CPLR article 78 in this court to (1) prohibit the retrial upon the second count of the indictment and (2) dismiss that count on the ground that a retrial on that count would violate his constitutional protection against double jeopardy and that subdivision 2 of CPL 310.60, requiring such retrial, is unconstitutional.
On April 4, 1975 this court denied the application and dismissed the proceeding . Defendant then appealed from our order dismissing his petition. In the meantime, however, the second trial commenced in April, 1975 and, on May 13, 1975, the jury returned a verdict of guilty on both counts. On June 16, 1975 the Court of Appeals denied a motion to dismiss the prohibition appeal as moot (O'Neill v. Beisheim, 36 N.Y.2d 964, 373 N.Y.S.2d 561, 335 N.E.2d 863). On July 18, 1975 defendant was sentenced to prison on both counts, and this appeal ensued. On November 19, 1975 another motion to dismiss the prohibition appeal was denied (O'Neill v. Beisheim, 37 N.Y.2d 942, 380 N.Y.S.2d 650, 343 N.E.2d 288). On June 17, 1976 our judgment dismissing the prohibition proceeding was affirmed, the Court of Appeals holding "Prohibition is not now warranted where the trial sought to be prohibited has been held and where the issues tendered may be raised on the direct appeal following such trial now pending in the Appellate Division." (O'Neill v. Beisheim, 39 N.Y.2d 924, 925, 386 N.Y.S.2d 576, 352 N.E.2d 880.)
In the Court of Appeals one of the cases which had been joined for argument with defendant's appeal from the judgment dismissing his petition for prohibition was People v. Brown, 40 N.Y.2d 381, 386 N.Y.S.2d 848, 353 N.E.2d 811, cert. den. 429 U.S. 975, 97 S.Ct. 482, 50 L.Ed.2d 583. On June 17, 1976, the same day on which the Court of Appeals affirmed the judgment dismissing defendant's prohibition petition, that court decided Brown and ruled (pp. 382-383, 386 N.Y.S.2d p. 849, 353 N.E.2d p. 812):
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