People v. La Ruffa

CourtNew York Court of Appeals
Citation332 N.E.2d 312,37 N.Y.2d 58,371 N.Y.S.2d 434
Parties, 332 N.E.2d 312 The PEOPLE of the State of New York, Respondent, v. Thomas LA RUFFA, also known as Tommy Brooks, Appellant.
Decision Date11 June 1975

Page 434

371 N.Y.S.2d 434
37 N.Y.2d 58, 332 N.E.2d 312
The PEOPLE of the State of New York, Respondent,
Thomas LA RUFFA, also known as Tommy Brooks, Appellant.
Court of Appeals of New York.
June 11, 1975.

Page 435

Robert B. Haynes and William E. Hellerstein, New York City, for appellant.

Eugene Gold, Dist. Atty. (Mark M. Baker, Brooklyn, of counsel), for respondent.

JASEN, Justice.

We have considered our prior decision in this case (see 34 N.Y.2d 242, 356 N.Y.S.2d 849, 313 N.E.2d 332) in the light of Blackledge v. Perry (417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628) and Tollett v. Henderson (411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235) and adhere to the view that in the circumstances here presented the defendant, with the advice of competent counsel, by his plea of guilty to murder in the second degree, after the defense had rested and before summations had been made, waived his double jeopardy defense.

Blackledge was a challenge on double jeopardy and due process of law grounds to retrial under a North Carolina procedure allowing an appeal from an inferior court to take the form of a trial De novo in the superior court. Expressly predicated on the due process ground alone, the holding was that it was constitutionally impermissible for the State to respond to Perry's statutory right to appeal by bringing a more serious (felony) charge on the trial De novo; and that the plea of guilty in the superior could did not bar raising the constitutional claim which precluded the State from even prosecuting him on the more serious charge. The court was emphatic that the preclusion was justified by 'vindictiveness' or the fear of vindictiveness in the subsequent prosecution (p. 28).

Page 436

Blackledge, as noted, is a due process and not a double jeopardy holding and we do not read the Supreme Court's due process reasoning as intended to overturn the established body of case law holding that the constitutional immunity from double jeopardy is a personal right which if not timely interposed at trial may be waived (e.g., Kepner v. United States, 195 U.S. 100, 131; United States v. Young (3rd Cir.), 503 F.2d 1072, 1074; United States v. Conley (8th Cir.), 503 F.2d 520, 521; United States v. Scott (4th Cir.), 464 F.2d 832, 833; United States v. Buonomo (7th Cir.), 441 F.2d 922, 924, cert. den. 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 81; Grogan v. United States, 394 F.2d 287, 289, cert. den. 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 100) and which likewise may be forfeited by a plea of guilty (Cox v. State of Kansas (10th Cir.), 456 F.2d 1279, 1280; Kistner v. United States (8th Cir.), 332 F.2d 978, 980; United States v. Hoyland (7th Cir.), 264 F.2d 346, 351, cert. den. 361 U.S. 845, 80 S.Ct. 98, 4 L.Ed.2d 83; Berg v. United States (9th Cir.), 176 F.2d 122, 125, cert. den. 338 U.S. 876, 70 S.Ct. 137, 94 L.Ed. 537; Caballero v. Hudspeth (10th Cir.), 114 F.2d 545, 547). Such has long been the law in this State as well. (Former Code Crim.Pro., §§ 332, 339; CPL 210.20; see People v. Cignarale, 110 N.Y. 23, 29, 17 N.E. 135; People ex rel. Williams v. Follette, 30 A.D.2d 693, 292 N.Y.S.2d 190, aff'd 24 N.Y.2d 949, 302 N.Y.S.2d 584, 250 N.E.2d 71; People v. Lynch, 40 A.D.2d 856, 337 N.Y.S.2d 763; People v. Allen, 18 A.D.2d 840, 238 N.Y.S.2d 70.)

The reliance placed by defendant on Robinson v. Neil (409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29), we think is misplaced. The 'practical result' language there used that the double jeopardy guarantee prevents a trial from taking place at all is not determinative because in Robinson the court was considering only the retroactivity of Waller v. Florida (397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435) and not the efffect of a guilty plea on a double jeopardy defense. The Supreme Court made that clear in its discussion of the Robinson case in the Blackledge opinion (p. 31).

Double jeopardy, then, is, and historically has been, treated as a defense which is waivable if not timely asserted. Blackledge, a due process holding, does not change this. While the practical effect of a double jeopardy defense may be to prevent a trial from taking place, it must first be affirmatively raised. We believe that the instant case is controlled by the line of cases culminating in Tollett v. Henderson (411 U.S. 258, especially at pp. 266--267, 93 S.Ct. 1602, 36 L.Ed.2d 235) and conclude that the defendant having entered a knowing and intelligent plea of guilty with advice of counsel and in accordance with the then existing constitutional law of double jeopardy, waived his right not to be twice subjected to the risk of punishment for the same offense. (See Blackledge v. Perry, supra, 417 U.S. p. 30, 94 S.Ct. 2098.)

Page 437

Most important in this analysis and that of the Supreme Court in the Blackledge case is that before a guilty plea will not work a waiver, there must be or have been a vindictive or retalitory escalation of crime charged or sentence for a defendant who pursued his constitutional rights, a circumstance totally absent here. A similar preclusion of waiver may arise if the plea proceedings are directly affected by the antecedent unconstitutionality (see Tollett v. Henderson, supra, 411 U.S. p. 267, 93 S.Ct. 1602).

Accordingly, we adhere to our original decision of affirmance dated May 9, 1974.

JONES, Justice (concurring).

This case is now before us on remand by the Supreme Court of the United States for our further consideration in the light of Blackledge v. Perry (417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628) (decided subsequent to our decision in this case on May 9, 1974) and Tollett v. Henderson (411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235) (decided prior to our earlier decision in this case).

The question whether a claim of double jeopardy survives a plea of guilty was not, of course, reached by the Supreme Court in Blackledge. On the basis of my reading of the majority opinion in Blackledge, I would have been disposed to conclude that had the Supreme Court reached the issue it would have held that double jeopardy was an issue which 'went to the very ower of the State to bring the defendant into court to answer the charge brought against him' (Blackledge, supra, p. 30, 94 S.Ct. p. 2103) and as such would not have been foreclosed by a defendant's plea of guilty.

In the present case, however, the double jeopardy issue is squarely presented. Since the Supreme Court when so confronted in this case did not reverse our decision, I can only infer that it was not then the conclusion of the Supreme Court that defendant's double jeopardy claim here survived his plea. On this analysis, absent any mandate of the Supreme Court to the contrary, I see no occasion to depart from the earlier decision of our court in which I then concurred.

WACHTLER, Justice (dissenting).

When this case was before us last spring, I joined in the unanimous opinion affirming the conviction (People v. La Ruffa, 34 N.Y.2d 242, 356 N.Y.S.2d 849, 313 N.E. 332). Several days later the Supreme Court decided Blackledge v. Perry (417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628), and later still reversed and remanded La Ruffa's conviction for reconsideration in light of that decision and Tollett v. Henderson (411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235). I have studied those opinions and have concluded that Blackledge announces a new doctrine,

Page 438

calling for reversal and dismissal of this indictment. Accordingly I cannot join the majority in reaffirming the conviction.

It is true, as the majority notes, that Part I of the Blackled decision concerns a due process rather than a double jeopardy violation. But it is not that portion of the decision which concerns me here. In Part II of the opinion the Supreme Court turned its attention of the question as to whether the defendant waived the constitutional issue by pleading guilty. The court concluded that he did not, and it is this part of the opinion which bears directly on the case now before us.

In Part II the court drew a distinction between 'antecedent constitutional violations', i.e., 'deprivations of constitutional rights that occurred prior to the entry of the guilty plea' And constitutional violations which go 'to the very Power of the State to bring the defendant into court to answer the charge brought against him.' (Ibid., p. 30, 94 S.Ct. p. 2103; emphasis added.) They held that antecedent violations such as a coerced confession or tainted indictment could be waived by a plea of guilty. But violations affecting the court's power to proceed could not. The example used to illustrate this latter type of violation was the double jeopardy clause which the court noted was 'distinctive' because 'its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.' (Ibid., p. 31, 94 S.Ct. p. 2104.)

In view of this distinction I can no longer conclude, as I did originally, that by pleading guilty La Ruffa waived his rights under the double jeopardy clause. Although the Supreme Court did not decide this precise issue in Blackledge, I believe it is fairly evident that they have taken the position that a...

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