People v. Serrano

• Decision Date: 10 May 1983
• Parties: PEOPLE of the State of New York v. Eddie SERRANO.
• Court: New York Supreme Court

Page 989

462 N.Y.S.2d 989

119 Misc.2d 321

PEOPLE of the State of New York v. Eddie SERRANO.

Supreme Court, Kings County,

Criminal Term, Complex A.

May 10, 1983.

Flamhaft, Levy, Kamins, Hirsh & Booth, by Harold L. Levy, Brooklyn, for defendant.

Elizabeth Holtzman, Dist. Atty., Kings County, Brooklyn, for the State; Henry A. Martuscello, Asst. Dist. Atty., Brooklyn, of counsel.

RICHARD J. GOLDMAN, Judge.

Defendant, as part of his omnibus motion, moves for an order dismissing counts 3 and 4 of the indictment on the grounds that they are based upon the same offense as charged in count 1 and constitute separate prosecutions based upon the same criminal transaction, thereby violating CPL 40.20.

The defendant was indicted for the crimes of Criminal Possession of a Weapon, Second Degree (Count 1); Criminal Possession of a weapon, Third Degree (Count 2) and Criminal Use of A Firearm, Second Degree (Counts 3 and 4).

Fundamental to our system of criminal justice is the deep-rooted constitutional principle that no person shall be tried more than once for the same offense (Benton v. Maryland, 395 U.S. 784, 785, 89 S.Ct. 2056, 2057, 23 L.Ed.2d 707). In New York, this double jeopardy protection is extended beyond federal (Fifth Amendment) and state (Article 1, subd. 6) constitutional guaranties by Article 40 of the CPL (People v. Abbamonte, 43 N.Y.2d 74, 81, 400 N.Y.S.2d 766, 371 N.E.2d 485). Under this Article, New York adopted what is generally known as the "same transaction" test (see Ashe v. Swenson, conc. opn. J. Brennan, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469) "which in its purest form, prohibits a second prosecution to be based upon the same transaction as a former one (Matter of Abraham v. Justices of the New York Supreme Court, Bronx County, 37 N.Y.2d 560, 565, 376 N.Y.S.2d 79, 338 N.E.2d 597; Auer v. Smith, 77 A.D.2d 172, 432 N.Y.S.2d 926, app. dsmd. 52 N.Y.2d 1070, 438 N.Y.S.2d 1030, 420 N.E.2d 414). The initial inquiry in any application of this test "is whether a later prosecution of a defendant and a prior prosecution are based upon 'the same act of criminal transaction' " (People v. Abbamonte, 43 N.Y.2d 74, 82, 400 N.Y.S.2d 766, 371 N.E.2d 485). (Emphasis supplied). It is clear in the instant case that there has been only one criminal transaction as defined by 40.10(2), but Article 40 is not violated unless there has been a previous prosecution (CPL 40.30, subd. 1; see Matter of Green v. Tompkins County, 61 A.D.2d 1098, 1100-1101, 403 N.Y.S.2d 560, conc. opn. of Judge Kane, app. dsmd. 47 N.Y.2d 881, 419 N.Y.S.2d 75, 392 N.E.2d 1258). (Cf., People v. Gonzalez, 81 A.D.2d 838, 438 N.Y.S.2d 842, app. dsmd. 54 N.Y.2d 834). A previous prosecution is defined in CPL 40.30(1) as follows:

"Except as otherwise provided in this section, a person 'is prosecuted' for an offense, within the meaning of Section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or any other jurisdiction within the United States, and when the action either: (a) Terminates in a conviction upon a plea of guilty, or (b) Proceeds to the trial stage and the jury has been impanelled and sworn, or, in the case of a trial by the court without a jury, a witness is sworn."

In the instant case, there is no claim of a previous conviction or trial. Therefore, Article 40 has not been violated.

In addition, CPL 40.20(1) states that "a person may not be twice prosecuted for the same offense." When, however, the same conduct or criminal transaction violates two or more statutory provisions, each such violation constitutes a separate and distinct offense (CPL 40.10[1] ). (Matter of Green v. Tompkins County, conc. opn. J. Kane, 61 A.D.2d 1098, 1100-1101, 403 N.Y.S.2d 560, app. dsmd. 47 N.Y.2d 881, 419 N.Y.S.2d 75, 392 N.E.2d 1258.) In the instant case, although all counts in the indictme are based upon the same transaction (CPL 40.10[2] ), it is clear that separate statutory provisions were violated. (See Matter of Klein v. Murtagh, 44 A.D.2d 465, 467, 355 N.Y.S.2d 622, affd. 34 N.Y.2d 988, 360 N.Y.S.2d 416, 318 N.E.2d 606).

Accordingly, defendant's double jeopardy rights under Article 40 have not been violated by the instant indictment.

Further, there is no violation of defendant's due process or equal protection rights. In People v. Eboli, 34 N.Y.2d 281, 287, 357 N.Y.S.2d 435, 313 N.E.2d 746, the court held "that overlapping in criminal statutes, and the opportunity for prosecutorial choice they represent, is no bar to prosecution." That case dealt with misdemeanor coercion (Penal Law 135.60) and felony coercion (Penal Law 135.65) which contain identical elements. The court there found no constitutional prohibition reasoning that verbal duplication could normally be explained by reviewing the legislative intent in enacting the similar or overlapping offenses or by reading the commentaries (People v. Discala, 45 N.Y.2d 38, 407 N.Y.S.2d 660, 379 N.E.2d 187; People v. Offen, 96 Misc.2d 147, 152, 408 N.Y.S.2d 914). By adopting such an approach, guidelines differentiating seemingly identical offenses become readily apparent (People v. Eboli, 34 N.Y.2d 281, 288, 357 N.Y.S.2d 435, 313 N.E.2d 746).

In the instant case, criminal possession of a weapon in the second degree and criminal use of a firearm in the second degree are both class C violent felony offenses authorizing the same level of punishment and having the same elements. If due process is not violated by prosecutorial discretion in charging a greater or lesser punitive statute, as in Eboli, it certainly is not violated when the crimes charged authorize similar levels of punishment. Accordingly, neither defendant's due process rights nor his equal protection rights are violated by the instant indictment.

However, counts 3 and 4 must be dismissed for the following reasons. The People, in the instant case, seek to use the crime of criminal possession of a weapon in the second degree as an underlying felony (People's response to omnibus motion dated 3/21/83). Employment of such offense as the underlying felony to the crime of criminal use of a firearm in the second degree would result in the following reading of that statute. As to count three, PL 265.08(1):

"A person is guilty of criminal use of a firearm in the second degree when he possesses a loaded firearm with intent to use the same unlawfully against another and (1) he...