People v. Roderman

Decision Date29 May 1962
PartiesThe PEOPLE of the State of New York v. Charles RODERMAN, James Dowd, Defendants.
CourtNew York County Court

J. Gerard Cregan, New York City, for defendant Roderman, James F. McArdle, Jamaica, for defendant Dowd, for the motion.

Frank D. O'Connor, Dist. Atty., Opposed, Benjamin J. Jacobson, Long Island City, and Moses Z. Yam, Far Rockaway, of counsel.


Upon these motions for orders dismissing an indictment accusing them of Arson, First Degree, defendants contend that their prosecution therefor is barred by the principles of former jeopardy and res judicata, 1 brought into operation through their prior acquittal of felony murder after trial upon an indictment based on the identical criminal act charged in the arson indictment. Since the facts are not in dispute there are but issues of law, to be resolved by the court (People v. Smith, 172 N.Y. 210, 226, 64 N.E. 814, 817; People ex rel. Kammerer v. Brophy, 255 App.Div. 821, 822, 7 N.Y.S.2d 34, 35, affd. 280 N.Y. 618, 20 N.E .2d 1006, 1007; see, also, Emich Motors Corp. v. General Motors Corp ., 340 U.S. 558, 569, 71 S.Ct. 408, 95 L.Ed. 534).

Accordingly, I hold: (1) that the pleas of former acquittal cannot be sustained and the motions to dismiss on that ground are, accordingly, denied; (2) that the prosecution under the arson indictment is not forbidden by the provisions of Section 1938 of the Penal Law but (3) that it is precluded by the principle of collateral estoppel and the motions to dismiss on that ground are, therefore, granted. An outline of the facts will put the issues of law in perspective. 2

On the early morning of April 4, 1959 a fire started in the men's lavatory of a first-story bar and grill in the Grassy Point Hotel, in or near the Rockaway section of Queens County. Among the then occupants of the building there was a man abed in a second-floor room and the evidence leaves no question but that the fire caused his death. Not long before its occurrence the defendants had been in the place, their barroom antics had been suppressed by the bar-tender and, after visiting the lavatory, they had left. Shortly after their departure the fire was discovered and in the course of the resultant investigation, they were questioned by the authorities.

Based upon statements allegedly taken from the defendants on that occasion, the theory of their later murder-prosecution was, that while in the lavatory they had noticed a mop standing up-side down, in a utility-compartment; that at Dowd's request Roderman handed him a book of matches, one of which Dowd lit and put to the mop until it started to smolder and that both men then returned to the bar-room, gathered up a male companion and left the building. Also developed by their alleged statements was a course of after-conduct which, depending upon their original intent, might either have evinced defendants' consciousness of guilt, or the impact of their realization that a prank had gone far beyond anything intended in its commission. 3 At any rate, a grand jury eventually handed up the two indictments that have given rise to the issues involved.

One (47/60) was the murder indictment upon which defendants have been tried and acquitted. In each of three counts it accused them of Murder, First Degree, in that they had caused the death of a named victim by their perpetration of the crime of arson, their commission of the latter crime being alleged in substantially the language of the pertinent arson statutes. By pleading in the alternative, the respective counts were so framed as to meet any eventualities of proof as to the nature of the building, the time when set afire, the fact of human occupancy and defendants' knowledge thereof. The other indictment (48/60) is the target of the present motion to dismiss. In each of two counts it charges Arson, First Degree, committed on the same date, affecting the same structure and likewise pleads the circumstances of commission in the alternative. 4 Holding the arson indictment in reserve, the district attorney put defendants to trial for the felony-murder and, following the defeat of that prosecution--by a complete acquittal--moved for their trial on the arson charge. His motion was countered, in turn, by the applications now before the court and the records produced and considered on their disposition leave no doubt of the grounding of both prosecutions upon the same conduct. But the constitutional safeguard against repeated jeopardy (N.Y.Const. art. I, Sec. 6; U.S.Const. 5th Amendment) 'is designed to protect the citizen from vexations and successive prosecutions for the same offense' and when the former jeopardy plea is interposed 'this danger must form its foundation if it is to be sustained.' (People v. Ercole, 4 N.Y.2d 617, 621, 176 N.Y.S.2d 649, 653, 152 N.E.2d 77, 80). The defeat of the plea in the instant case is dictated by respect for controlling precedents under whose authority it must be held that the offenses are not the same.

The cases just referred to maintain that in a felony-murder case the murder and the collateral felony are substantively and generically different offenses and that the underlying felony is not an element of nor 'necessarily included' in the murder. In the aggregate of the foundation for the decisions are a common-law fiction and a procedural device conceived and employed, in the latter and more temperate course of the common law, to protect the accused from prejudice. The fiction is said to supply the 'malice aforethought'--regarded as essential to guilt of murder in the first degree--through transference, by implication of law, of the 'malicious and premeditated intent' to perpetrate the underlying felony (People v. Enoch, 13 Wend. 159, 174) 5; see also, inter alia, People v. Wood, 8 N.Y.2d 48, 51, 201 N.Y.S.2d 328, 331, 167 N.E.2d 736, 739). The status of the latter crime as 'an independent offense' and not 'an ingredient of the murder' is confirmed by the common-law device, which tested a defendant's susceptibility to accusation of both crimes in one indictment or to conviction, by surprise, of a crime not fairly included in that charged by a single count. Thus, upon an indictment for murder, a conviction of the felony could not be had. 'Two felonies arose out of the prisoner's acts--neither being dependent on or an ingredient of the other; and for either or both he might have been indicted. But an indictment embracing both felonies would have been bad. * * * The rule was the same at the common law' (Buel v. People, 18 Hun. 487, 493, 494, affd., 78 N.Y. 492). 6 Apart from the violence causing the death, the elements of the felony must be 'so distinct * * * as not to be an ingredient of the homicide, indictable therewith or convictable thereunder.' (People v. Huter, 184 N.Y. 237, 244, 77 N.E. 6, 8, citing Buel v. People, supra, 18 Hun. 487, 493, affd. 78 N.Y. 492). Nor is the felony 'necessarily included' in the homicide within the meaning of the applicable (permissible-verdict) statute (Code Cr.Proc. § 445) the crimes being 'substantively and generically separate and distinct offenses.' (People v. Nichols, 230 N.Y. 221, 225-226, 129 N.E. 883, 884). Upon a trial for the murder then, the accused is not deemed to have been put in jeopardy of conviction of the collateral felony (People ex rel. Santangelo v. Tutuska, 19 Misc.2d 308, 313, 192 N.Y.S.2d 350, 356, 7 affd., 11 A.D.2d 906) notwithstanding legitimate bases in the evidence (People v. Mussenden, 308 N.Y. 558, 563, 127 N.E.2d 551, 554) for findings that while all of a number of criminal actors were guilty of the felony, the supposedly fatal violence was not shown to have been the cause of the death (Code Cr.Proc. § 444) and in any event, only one of the felons was concerned, as principal (Penal Law, § 2), in the assault designed to kill the felony-victim (People ex rel. Di Lap v. Tutuska, 27 Misc.2d 544, 217 N.Y.S.2d 124, affd. 11 A.D.2d 906, 205 N.Y.S.2d 1007, affd. 9 N.Y.2d 910, 176 N.E.2d 96, 217 N.Y.S.2d 85, upon the opinion at Special Term), the actual assailant's violence being only 'incidentally coincident with the felony' and not in its furtherance (People v. Wood, supra, 8 N.Y.2d 48, 51, 201 N.Y.S.2d 328, 331, 167 N.E.2d 736, 739). It may also be, that a murder-defendant is not deemed to have been in danger of conviction of the felony where his counsel, at the trial, renounces any right to have the jury consider the client's guilt of the lesser, predicate-crime (People ex rel. Di Lapo v. Tutuska, supra, 27 Misc.2d 544, 545, 546, 217 N.Y.S.2d 124, 126). However that may be, the other precedents indicate the path of decision that must be followed.

Their restriction of the idea of 'necessarily included' crimes to those of generic likeness foils the so-called 'lesser included offense exception' to the 'same evidence test' 8 and arrays New York with the jurisdictions denying that jeopardy of conviction of the foundation felony is involved in a prosecution for that type of murder (see e. g., Southworth v. State, 98 Fla. 1184, 1188-1189, 125 So. 345; Harris v. State, 193 Ga. 109, 118, 117 S.E.2d 573, 148 A.L.R. 980 and authorities cited; People v. Andrae, 305 Ill. 530, 535, 137 N.E. 496; Centers v. Commonwealth, 318 S.W.2d 57, 58 (Ky.); State v. Rodgers, 100 S.C. 77, 82, 84 S.E. 304; State v. Barton, 5 Wash.2d 234, 238, 240, 105 P.2d 63; contra, People v. Miccichi, 264 Mich. 581, 583, 250 N.W. 316; State v. Cooper, 13 N.J.L. 361, 372, 373, 375; State v. Carlson, 5 Wis.2d 595, 608-609, 93 N.W.2d 354). By reason of the unintended, fatal consequence, the offenses are thought to be elementally different and, as it is said, the test of jeopardy by successive prosecutions 'is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense.' A 'single act' may violate two statutes but if one 'requires proof of an additional fact...

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