People v. S.

• Decision Date: 09 February 1970
• Citation: 33 A.D.2d 1032,309 N.Y.S.2d 70
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., Respondent, v. Dwight S. (Anonymous), Appellant.

Page 70

309 N.Y.S.2d 70

33 A.D.2d 1032

The PEOPLE, etc., Respondent, v. Dwight S. (Anonymous), Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 9, 1970.

Before BELDOCK, P.J., and CHRIST, MUNDER, MARTUSCELLO and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Nassau County, rendered February 28, 1969, which (1) adjudicated him a youthful offender, upon his plea of guilty to acts which, if committed by an adult, would constitute reckless endangerment in the second degree, a misdemeanor, and (2) sentenced him to an unconditional discharge.

Judgment affirmed.

In our opinion, appellant was not placed in double jeopardy by prosecution of the youthful offender information charging him with reckless endangerment in the first degree (see Penal Law, § 120.25) after his conviction upon a guilty plea to reckless driving (Vehicle and Traffic Law, § 1190). The reckless driving information alleged that appellant had operated an automobile in a manner 'which unreasonably interfered with the free and proper use of the highway and unreasonably endangered the lives of other users of said highways, to wit: the defendant forced other vehicles off the road, crossed sidewalks, went through red lights, crossed dividers.' The youthful offender information (reckless endangerment) alleged that he had, 'under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person, to wit: said defendant did swerve his auto at two pursuing patrol cars, attempting to force them off the road, and further did drive at a patrol car, operated by Patrolman Robert Moores, striking said patrol car, and did drive at a patrol car, operated by Patrolman Robert Ryan, also striking said patrol car.'

Clearly, the two charges not only connote qualitatively different conduct but are based upon separate and distinct acts, each of which constitutes a violation of law (cf. People v. Martinis, 46 Misc.2d 1066, 261 N.Y.S.2d 642). Conviction upon the reckless endangerment charge requires proof of elements or acts other and different from those required to convict of reckless driving. Therefore, prosecution of the former did not subject appellant to double jeopardy (Matter of Martinis v. Supreme Ct. of State of N.Y., 15 N.Y.2d 240, 258 N.Y.S.2d 65, 206 N.E.2d 165) and his motion to dismiss the youthful offender information was properly denied.

In addition, under the particular circumstances of this case, we find no merit in the claim that the judgment must be reversed because appellant was required to waive his right to a jury trial in order to qualify for youthful offender treatment. Although subdivision 3 of section 913--g, and section 913--h, of the Code of Criminal Procedure have been held unconstitutional insofar as they condition eligibility for youthful offender treatment upon a waiver of the right to trial by jury (People v. Michael A.C. (Anonymous), 32 A.D.2d 554, 330 N.Y.S.2d 816), we find that appellant's subsequent guilty plea, coupled with his failure to raise any timely objection to a nonjury trial, constitutes an effective ...