People v. O'Neill

Citation397 N.Y.S.2d 408,59 A.D.2d 540
PartiesThe PEOPLE, etc., Respondent, v. Harold O'NEILL, Appellant.
Decision Date01 August 1977
CourtNew 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 Court: Counsel with respect to defendants motion to dismiss the first count of the indictment, which is a motion renewed, and which had previously been denied. The motion will again be denied at this time.

"Now, with respect to motion directed to Count number two of the indictment, which is the count directed to the defendant intending to cause the death or (sic) James Fuller and causing the death of James Fuller, while acting under influence of extreme emotional disturbance. This motion was made at the end of the People (sic) case and the Court reserved. With respect to that, that motion the motion is granted and that count will be dismissed. And the Court has examined section 125.25 of the Penal Law and section 125.20 subdivision 2 of the Penal Law, and in consideration of these of these (sic) two sections with which (sic) are the sections having to do with causing the death of a person, third person while acting under the influence of extreme emotional disturbance. The Court does not believe that there has been any showing in this case that these sections apply. Under the indictment brought by the Grand Jury.

"Therefore, count number two of the indictment is dismissed and will not be submitted to the jury."

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:

" § 310.60 Discharge of jury before rendition of verdict and effect thereof.

"1. A deliberating jury may be discharged by the court without having rendered a verdict only when:

"2. When the jury is so discharged, the defendant or defendants may be retried upon the indictment. Upon such retrial, the indictment is deemed to contain all the counts which it contained at the time the previous trial was commenced, regardless of whether any count was dismissed by the court in the course of such trial." (Emphasis supplied.)

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):

"Appeal by the People from a trial order of the County Court, Westchester County, made on May 14, 1972, which dismissed the second count of the indictment. Appeal dismissed. The second count of the indictment was dismissed during the trial upon defendant's application. After that dismissal, the jury was unable to agree upon a verdict as to the remaining first count. The court thereupon discharged the jury. CPL 310.60 provides that upon a retrial in such a case the indictment is deemed to contain all the counts which it contained at the time the previous trial was commenced, regardless of whether any count was dismissed by the court in the course of such trial. This renders academic the question of whether the trial court did or did not err in dismissing the second count."

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 (O'Neill v. Caruso, 49 A.D.2d 702, amd. 49 A.D.2d 702, amd. 49 A.D.2d 703). 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):

"We now hold that CPL 450.20 (subd. 2) providing that the People may appeal a trial order of dismissal entered pursuant to CPL 290.10 is unconstitutional as violative of the right...

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4 cases
  • People v. Cunningham
    • United States
    • United States State Supreme Court (New York)
    • May 13, 1980
    ...from the jury the choice of drawing an inference of intent from the act or rejecting such an inference (People v. O'Neill, 59 A.D.2d 540, 542-543, 397 N.Y.S.2d 408 (2d Dept. 1977)). It is plain, therefore, that the courts of New York had recognized long before the decision by the Supreme Co......
  • People v. Boynton
    • United States
    • New York Supreme Court Appellate Division
    • February 20, 1979
    ...den. 42 N.Y.2d 1015, 398 N.Y.S.2d 1034, 368 N.E.2d 289, cert. den. 433 U.S. 913, 97 S.Ct. 2986, 53 L.Ed.2d 1099) and People v. O'Neill (59 A.D.2d 540, 397 N.Y.S.2d 408). However, the situation today is In the Brown case (40 N.Y.2d at p. 391, 386 N.Y.S.2d at p. 855, 353 N.E.2d at p. 818, sup......
  • People v. Jones
    • United States
    • New York Supreme Court Appellate Division
    • March 10, 1980
    ...the defendant possessed the intent to cause only serious physical injury or was guilty of reckless conduct (see People v. O'Neill, 59 A.D.2d 540, 543, 397 N.Y.S.2d 408, 412). It is a fundamental rule of law that jury instructions are required to be responsive to the issues presented by the ......
  • People v. Cheeks
    • United States
    • New York Supreme Court Appellate Division
    • December 15, 1978
    ...and WITMER, JJ. MEMORANDUM: Although we agree that the Trial Court erred in its charge on the issue of intent (see People v. O'Neill, 59 A.D.2d 540, 542, 397 N.Y.S.2d 408, 411) and that subsequent to its initial proper charge on the defense of justification (Penal Law, § 35.15, subd. 2(a)) ......

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