People v. Okafore

• Decision Date: 09 June 1988
• Citation: 72 N.Y.2d 81,531 N.Y.S.2d 762,527 N.E.2d 245
• Parties: , 527 N.E.2d 245, 80 A.L.R.4th 615 The PEOPLE of the State of New York, Respondent, v. Charles OKAFORE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 762

531 N.Y.S.2d 762

72 N.Y.2d 81, 527 N.E.2d 245, 80

A.L.R.4th 615

The PEOPLE of the State of New York, Respondent, v. Charles OKAFORE, Appellant.

Court of Appeals of New York.

June 9, 1988.

Steven R. Kartagener, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Robert M. Raciti and Mark Dwyer, New York City, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

In Matter of Johnson v. Morgenthau, 69 N.Y.2d 148, 512 N.Y.S.2d 797, 505 N.E.2d 240, we determined that criminal possession of a weapon in the third degree was a continuing crime. We found, therefore, that although the defendant had unlawfully possessed a weapon in The Bronx and Manhattan during a continuous six-day period only one crime had been committed. As a result, double jeopardy principles prohibited New York County from prosecuting him for criminal possession of a weapon in the third degree after he had been placed in jeopardy for the same crime in Bronx County. In the matter before us, defendant has been separately charged and convicted of criminal possession of a weapon in the second degree as a result of incidents occurring approximately an hour apart, one in Bronx County and the other in New York County. He contends that second degree possession is also a continuing crime and that his later New York County conviction must be set aside on double jeopardy grounds. The crimes of second and third degree criminal possession of a weapon differ significantly, however. Third degree, examined in Johnson (supra), is defined by reference to dominion and control, whereas second degree requires a specific intent, the "intent to use the same unlawfully against another" (Penal Law § 265.03). Thus, second degree is a continuing offense only as long as a defendant possesses the weapon intending to use it against a particular person or group of persons. If that intent abates, the crime is completed, even though defendant continues to possess the weapon, and a subsequently formed intent while possessing the weapon results in the commission of a second offense. In this case, defendant's possession of the weapon was continuous but the intent with which he possessed it was separate and discrete in the two charged incidents. He thus committed two offenses and could be prosecuted for both.

I

These charges arose when defendant, a Nigerian immigrant, went to the apartment of his estranged wife late one night intent on killing her because he believed she was having an affair with his son by a former marriage. The police had arrived in answer to a call but before they could stop defendant, he shot his wife three times with a .38 caliber pistol then fled out a window and down a fire escape to his waiting car. Once in the car defendant headed for his son's apartment intending to shoot him as well. He abandoned that idea before reaching the apartment and decided to return home and kill himself.

Defendant reached his Manhattan apartment about an hour after the killing to find the police waiting in the hallway outside. They ordered him to "freeze" but, in an attempt to escape, defendant pulled out his gun and aimed it at one of the officers. Before he could fire, the police shot and wounded him and placed him under arrest. Ballistics tests revealed that the gun taken from defendant by the police was the one he had used to shoot his wife and that he had reloaded it after killing her.

Bronx County authorities indicted defendant for murder in the second degree, criminal use of a weapon in the second degree and criminal possession of a weapon in the second degree for the shooting of his wife. He was convicted after trial of second degree manslaughter and second degree criminal possession of a weapon and sentenced to a 5-to-15-year term of imprisonment. The judgment was affirmed by the Appellate Division. 129 A.D.2d 1015, 513 N.Y.S.2d 904 (1987).

While the Bronx County case was proceeding, defendant was indicted in New York County for second and third degree criminal possession of a weapon based on his threatened use of the handgun against the police officers at his Manhattan apartment. After he was convicted of second degree possession in Bronx County, defendant moved to dismiss the New York County prosecution claiming that it was barred by the double jeopardy protections of the Federal Constitution and CPL article 40. His motion was denied and he pleaded guilty to criminal possession of a weapon, second degree, and was sentenced to a 2-to-6-year term to run consecutively with the term imposed on the Bronx County conviction. The Appellate Division affirmed and a Judge of this court granted leave to appeal. We now affirm.

II

Defendant maintains that because his possession of the gun between the time he killed his wife in The Bronx and his display of the weapon in Manhattan was uninterrupted, the crime he committed in New York County was simply a continuation of the possessory offense he committed in The Bronx. He thus contends the Bronx and New York County authorities both indicted him for the same crime and that under the "continuous offense doctrine" his Bronx County conviction should have barred the New York County prosecution. If indeed only one continuing second degree offense were involved here, then the New York County prosecution would be barred by the Double Jeopardy Clause ¹ of the United States Constitution which protects an accused against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same offense (see, U.S. Const. 5th, 14th Amends.; Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 reh. denied 468 U.S. 1224, 105 S.Ct. 20, 82 L.Ed.2d 915; Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187; Matter of Johnson v. Morgenthau, supra, 69 N.Y.2d at 150, 512 N.Y.S.2d 797, 505 N.E.2d 240).

The question whether the continuous offense doctrine should be applied arises most clearly in cases, such as this one, where the defendant is charged with repeated violations of a single statute. The doctrine dates back to the English case of Crepps v. Durden (2 Cowp 640 [KB] ) which held that the baker's sale of four loaves of bread on one Sunday contrary to the "blue laws" constituted one continuing offense, not four separate ones. The Crepps rationale was incorporated into our law of double jeopardy by the Supreme Court in the case of In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658 which concluded that the defendant's marriage to more than one wife over a period of years could only support one prosecution for unlawful cohabitation because of the continuing nature of the offense ( see also, United States v. Universal Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260; Ex Parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118). More recently, the Supreme Court applied the continuing offense doctrine in Brown v. Ohio, 432 U.S. 161, 92 S.Ct. 2221, supra, holding that the crime of joyriding--taking or operating a vehicle without the owner's consent--was a continuing offense commencing when the defendant stole the car and continuing as long as he retained it. Because joyriding was a lesser included offense of theft, the court held that defendant's theft and nine-day possession of the vehicle could support only one prosecution and his conviction for joyriding barred a later attempt to prosecute him for theft.

We applied the continuing offense doctrine in Matter of Johnson v. Morgenthau, 69 N.Y.2d 148, 512 N.Y.S.2d 797, 505 N.E.2d 240, supra. The defendant in Johnson had continually possessed a handgun for six days and carried it from Bronx County to New York County during that time. The question was whether he could be prosecuted by both the Bronx and New York County authorities for criminal possession of a weapon in the third degree under Penal Law § 265.02(4). We held that because criminal possession of a weapon in the third degree was defined purely in terms of dominion and control (see, Penal Law § 10.00[8] ), it was a continuing offense and that defendant's prosecution for it in Bronx County barred the subsequent New York County prosecution. ² In so holding, we recognized that the Legislature could have subdivided third degree criminal possession of a weapon into temporal or spacial units enabling continuous conduct to support multiple prosecutions but that it had not done so.

It is helpful to compare these cases, in which the continuous offense doctrine was invoked, with others in which it was not, cases such as Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 which involved narcotic sales, and People v. Erickson, 302 N.Y. 461, 99 N.E.2d 240 which involved bookmaking. In both those cases, defendants contended that their offense consisted of only one crime, engaging in a prohibited "business". The courts held, however, that the crimes were not continuous offenses but that each sale of narcotics and each bet received constituted a new offense. In so holding, each court looked to the intent underlying the statute to determine whether the legislative purpose was to prohibit a course of conduct or specific described acts ( see, Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 supra People v. Erickson, 302 N.Y. 461, 464, 99 N.E.2d 240, supra ). In making that analysis, the Blockburger court found it significant that the charged conduct was not the product of one "impulse", permitting only one prosecution no matter how long the action may continue, but successive and distinguishable impulses, each able to support a separate charge (284 U.S., supra, at 302, 52 S.Ct. at 181). The two narcotic sales in Blockburger occurred a day apart but in finding that they were triggered by separate impulses and thus separate crimes, the court cited with approval an earlier case, Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151, in which the separate offenses occurred only minutes...