People v. Prescott

• Decision Date: 19 November 1985
• Citation: 66 N.Y.2d 216,495 N.Y.S.2d 955,486 N.E.2d 813
• Parties: , 486 N.E.2d 813 The PEOPLE of the State of New York, Respondent, v. Veronica PRESCOTT, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 955

495 N.Y.S.2d 955

66 N.Y.2d 216, 486 N.E.2d 813

The PEOPLE of the State of New York, Respondent, v. Veronica PRESCOTT, Appellant.

Court of Appeals of New York.

Nov. 19, 1985.

Jill F. Moscowitz and William E. Hellerstein, New York City, for appellant.

John J. Santucci, Dist. Atty. (Andrew Zwerling, Kew Gardens, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Defendant Veronica Prescott has been convicted on her plea of guilty to attempted robbery in the second degree in full satisfaction of an indictment charging her with robbery in the second degree and four counts of criminal possession of stolen property in the second degree. Before pleading, defendant moved to dismiss the entire indictment claiming that a prior prosecution, which ended in a bargained plea to disorderly conduct, barred the second indictment under New York's previous prosecution statutes (see, CPL 40.10 et seq.). The trial court granted defendant's motion as to the four counts of criminal possession, but denied the motion as to the robbery count. Defendant then pleaded guilty to the reduced charge. On appeal to this court, defendant claims that her conviction for attempted robbery was obtained in violation of her statutory and constitutional rights to be free from multiple prosecutions for the same offense.

There should be an affirmance. Defendant forfeited her right to challenge the trial court's adverse ruling on her statutory previous prosecution claim when she pleaded guilty to the reduced charge (see, People v. Dodson, 48 N.Y.2d 36, 421 N.Y.S.2d 47, 396 N.E.2d 194; compare, People v. Taylor, 65 N.Y.2d 1, 489 N.Y.S.2d 152, 478 N.E.2d 755; People v. Sobotker, 61 N.Y.2d 44, 471 N.Y.S.2d 78, 459 N.E.2d 187). While the defendant's constitutional claim survived the trial court's acceptance of her plea and, indeed, may be raised here for the first time (see, People v. Michael, 48 N.Y.2d 1, 7, 420 N.Y.S.2d 371, 394 N.E.2d 1134; Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195), the claim is without merit because defendant's previous conviction resulted from a separate and distinct offense under the Penal Law (see, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228).

Defendant's convictions resulted from a series of events that began in a shopping mall parking lot on July 30, 1979 when Lillian Kasten and another woman were pulled from their car by two men who then seized their purses and drove away in the Kasten car. Approximately four hours later, defendant attempted to use one of Mrs. Kasten's credit cards to purchase jewelry at an Abraham & Straus Department Store. The card had previously been reported stolen, however, so the store's security personnel detained defendant and notified Mrs. Kasten. She came to the store with her husband, who is a police officer, and he found property belonging to his wife and to her friend during a search of defendant's car.

On July 3, 1979, an employee of Abraham & Straus filed a complaint charging the defendant with fraud, larceny as to Abraham & Straus, criminal possession of stolen property (credit cards), forgery and criminal impersonation. On September 6, 1979, defendant pleaded guilty to disorderly conduct in satisfaction of all the charges arising from the store's complaint and was given a conditional discharge.

On November 2, 1979, defendant was indicted on charges of robbery, second degree, and four counts of criminal possession of stolen property (credit cards) arising from the theft of property belonging to Mrs. Kasten and her friend. She moved to dismiss the indictment pursuant to the provisions of CPL 40.20. The court granted the motion in part and dismissed the four counts of criminal possession, but denied the motion insofar as it sought dismissal of the robbery charge. Defendant then entered a negotiated plea of guilty to attempted robbery in the second degree. On appeal from the robbery conviction, the Appellate Division affirmed, 104 A.D.2d 610, 479 N.Y.S.2d 383, holding that defendant had waived the claim for relief under CPL 40.20 by her plea of guilty. It did not address her constitutional claim.

It is a fundamental principle of our legal system that a defendant may not be twice placed in jeopardy for the same offense (see, People v. Rivera, 60 N.Y.2d 110, 114, 468 N.Y.S.2d 601, 456 N.E.2d 492). In 1970, the New York State Legislature expanded the protection against double jeopardy found in the 5th Amendment of the United States Constitution by enacting CPL article 40 which contains additional grounds for prohibiting multiple prosecution of offenses. CPL 40.20, the section before us on this appeal, prohibits separate prosecutions for "two offenses based upon the same act or criminal transaction", unless one of six exceptions is met (CPL 40.20 and see, People v. Rivera, supra ). In People v. Dodson, 48 N.Y.2d 36, 421 N.Y.S.2d 47, 396 N.E.2d 194, supra, we held that a defendant's right under this section to be free from further prosecution may be lost if the defendant fails to raise the claim prior to, or at the time of, his plea (id., at pp. 38-39, 421 N.Y.S.2d 47, 396 N.E.2d 194). Here, defendant asserted her statutory claim before the plea but she pleaded guilty after her motion was denied. We now hold that a guilty plea results in forfeiture of a defendant's 40.20 claim even though the claim has been presented to the court prior to the plea. ¹

A guilty plea represents a compromise or bargain struck after negotiation between the defendant and the People. It is meant to mark the end of a criminal case, not a "gateway" to further litigation (see, People v. Taylor, 65 NY2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755, supra ). Thus, the plea both waives certain rights attendant to trial and forfeits rights to renew arguments made before a plea is accepted. There is no mechanical rule that establishes when a claim is forfeited by a guilty plea, but we have held that even though certain constitutional rights would survive a guilty plea, related statutory rights are nonetheless forfeited by it "when the statute would confer on the defendant greater rights than the Constitution demands" (People v. Sobotker, 61 N.Y.2d 44, 48, 471 N.Y.S.2d 78, 459 N.E.2d 187, supra see also, People v. Howe, 56 N.Y.2d 622, 450 N.Y.S.2d 477, 435 N.E.2d 1092; People v. Thill, 52 N.Y.2d 1020, 438 N.Y.S.2d 297, 420 N.E.2d 95; People v. Friscia, 51 N.Y.2d 845, 433 N.Y.S.2d 754, 413 N.E.2d 1168 ). In such instances, the question is not whether the defendant made a knowing and intelligent waiver, but whether a forfeiture of the statutory right was a necessary consequence of the guilty plea, as a matter of policy (People v. Sobotker, supra ). Due concern for finality in criminal prosecutions and for the conservation of judicial resources requires that, in the absence of constitutional or jurisdictional defects, a guilty plea should end the litigation. It is also important that a defendant who accepts a "carefully orchestrated bargain" should not keep the benefits of the reduced charge, thereby eliminating the risks of conviction on a greater charge or more severe sentence, and yet be relieved of the admission of guilt which is his consideration for the bargain (see, People v. Lieberman, 79 A.D.2d 175, 178, 436 N.Y.S.2d 12 ). These concerns are all the more compelling when considered against the availability, prior to trial, of an article 78 proceeding to prohibit the People from prosecuting a case that violates statutory, as well as constitutional, double jeopardy principles (see, People v. Abbamonte, 43 NY2d 74, 81, 400 N.Y.S.2d 766, 371 N.E.2d 485; and see, People v. Lieberman, supra, at p. 179, 436 N.Y.S.2d 12 ). ²

Because defendant forfeited her statutory claim, we do not reach the merits of her contention that prosecution was foreclosed by CPL 40.20(2)(b). ³ In Menna v New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195, supra, however, the Supreme Court held that the constitutional protection against double jeopardy contained in the 5th Amendment is not waived by a counseled guilty plea where the charge, on its face, is one that the State may not constitutionally prosecute (Menna v. New York, supra, at p. 62, n. 2, 96 S.Ct. at p. 242, n. 2). Accordingly, we address the merits of the constitutional claim.

The constitutional prohibition against double jeopardy encompasses three separate guarantees. It protects against (1) a second prosecution for the same offense after an acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense (see, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656). Only the second guarantee is relevant to this appeal. The test for determining whether two offenses are the same within the meaning of the double jeopardy clause is whether two distinct statutory provisions each requires proof of a fact that the other does not (see, Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228, supra; Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 ). The Blockburger test focuses on the proof necessary to prove the statutory elements of each offense charged against the defendant, not on the actual evidence to be presented at trial (see, Illinois v. Vitale, supra ). Thus, a substantial overlap in the proof presented is not dispositive if the test is...