People v. Smith

CourtNew York Supreme Court — Appellate Term
Writing for the CourtPER CURIAM; QUINN
Citation81 Misc.2d 926,365 N.Y.S.2d 317
PartiesThe PEOPLE of the State of New York, Respondent, v. Lloyd SMITH, Defendant-Appellant.
Decision Date16 January 1974

Page 317

365 N.Y.S.2d 317
81 Misc.2d 926
The PEOPLE of the State of New York, Respondent,
v.
Lloyd SMITH, Defendant-Appellant.
Supreme Court, Appellate Term, First Department.
Jan. 16, 1974.

Page 318

William E. Hellerstein and Robert Kasanof, New York City (Allen E. Burns, New York City, of counsel), for appellant.

Frank S. Hogan, Dist. Atty. (Michael R. Juviler and John Bernard Mullady, New York City, of counsel), for respondent.

Before MARKOWITZ, P.J., and QUINN and LUPIANO, JJ.

PER CURIAM:

Defendant stands convicted of the crime of criminal impersonation (Penal Law, § 190.25). Defendant has been tried twice on six misdemeanor charges. The crime of which he stands convicted was one of these charges.

At the first trial, at the conclusion of the presentation of evidence by both sides, the trial judge dismissed this, and one other, count on the ground that, as a matter of law, the People had failed to establish defendant's guilt on these charges beyond a reasonable doubt. When the jury at the first [81 Misc.2d 927] trial was unable to agree upon a verdict on the remaining four counts, a mistrial was declared and a new trial ordered. Under the asserted mandate of the Criminal Procedure Law, defendant was retried on all six counts (§§ 280.20, 310.60(2), 360.55, 440.10(6), 470.55). On the retrial the jury found defendant guilty only of the count of criminal impersonation.

At the inception of the second trial, defendant had moved to dismiss this court on the basis of double jeopardy (U.S. Constitution, 5th and 14th Amendments; N.Y. Constitution, Art. 1, § 6; Criminal Procedure Law, § 40.20, subd. 1; Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; People v. Jackson, 20 N.Y.2d 440, 285 N.Y.S.2d 8, 231 N.E.2d 722, cert. den. 391 U.S. 928, 88 S.Ct. 1815, 20 L.Ed.2d 668; People v. Ressler, 17 N.Y.2d 174, 179--180, 269 N.Y.S.2d 414, 416--417, 216 N.E.2d 582, 584). It was error to deny this motion (United States v. Sisson, 399 U.S. 267, 288, 90 S.Ct. 2117, 2128, 26 L.Ed.2d 608, 623; United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300, 303; People ex rel. Stabile v. Warden, 202 N.Y. 138, 151, 95 N.E. 729, 733).

A person may not be twice prosecuted for the same offense (Criminal Procedure Law, § 40.20). A person 'is prosecuted' for an offense when the action proceeds to the trial stage and a witness is

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sworn (Ibid. § 40.30(1)). Clearly, defendant was put in jeopardy at the first trial, which went far beyond the swearing of a witness (cf. People v. Paquette, 31 N.Y.2d 379, 399 N.Y.S.2d 959, 292 N.E.2d 17; People v. Scott, 40 A.D.2d 933, 337 N.Y.S. 640). Moreover, where, at a trial, the proof falls below the prescribed standard for conviction, the accused is entitled as a matter of law to an acquittal (People v. Ledwon, 153 N.Y. 10, 46 N.E. 1046). Having previously been put at the risk of conviction, and been acquitted of the charge of criminal impersonation (see also, People v. Schwartzman, 24 N.Y.2d 241, 250, 299 N.Y.S.2d 817, 825, 247 N.E.2d 642, 647--648; People v. Vidal, 26 N.Y.2d 249, 253, 309 N.Y.S.2d 336, 339, 257 N.E.2d 886, 889), constitutionally defendant could not thereafter be tried on this charge (People v. Goldfarb, 152 App.Div. 870, 874, 138 N.Y.S. 62, 65, affd. 213 N.Y. 664, 107 N.E. 1083; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199).

To the extent that the cited sections of the Criminal Procedure Law may be construed to the contrary, they are constitutionally unenforceable.

Judgment of conviction reversed on the law, information, dismissed, and bail exonerated.

QUINN, Justice (dissenting).

Defendant was tried twice before juries on a six-count indictment. On the second trial the jury found him guilty of the crime of criminal impersonation and not guilty of the other counts submitted. On the first trial the count charging criminal impersonation had not been submitted to the jury because of the trial judge's 'trial order' granting the motion By defendant to dismiss it for insufficiency[81 Misc.2d 928] of evidence. On the first trial the jury was unable to agree to a verdict on any of the counts submitted to it and, with the unconditional consent of defendant, was discharged.

Defendant's trial the second time, on the same evidence, for criminal impersonation was authorized under the provisions of CPL 310.60, subdiv. 2, because of the discharge of the hung jury with the consent of defendant. That section provides in part:

'When the jury is so discharged, the defendant or defendants may be retried upon the indictment. Upon such retrial, the indictment is deemed to contain all the counts which it contained at the time the previous trial was commenced regardless of whether any count was dismissed by the court in the course of such trial.'

Defendant on this appeal assails this statutory provision on the ground that it files in the face of the constitutional ban against double jeopardy;...

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2 practice notes
  • People v. O'Neill
    • United States
    • New York Supreme Court Appellate Division
    • August 1, 1977
    ...that statute is unconstitutional (see People v. Brown, supra; People v. Cuvilje, 85 Misc.2d 628, 380 N.Y.S.2d 872; People v. Smith, 81 Misc.2d 926, 365 N.Y.S.2d Not only was the retrial of the second count unconstitutional, such retrial prejudiced the trial of the first count, in two major ......
  • People v. Cuvilje
    • United States
    • United States State Supreme Court (New York)
    • January 21, 1976
    ...verdict. Research discloses that a majority of the Appellate Term of this Department reached a similar conclusion in People v. Smith, 81 Misc.2d 926, 927, 365 N.Y.S.2d 317, 318 (decided To our way of thinking, unsubmitted counts do not rise to the same level as dismissed counts since a refu......
2 cases
  • People v. O'Neill
    • United States
    • New York Supreme Court Appellate Division
    • August 1, 1977
    ...that statute is unconstitutional (see People v. Brown, supra; People v. Cuvilje, 85 Misc.2d 628, 380 N.Y.S.2d 872; People v. Smith, 81 Misc.2d 926, 365 N.Y.S.2d Not only was the retrial of the second count unconstitutional, such retrial prejudiced the trial of the first count, in two major ......
  • People v. Cuvilje
    • United States
    • United States State Supreme Court (New York)
    • January 21, 1976
    ...verdict. Research discloses that a majority of the Appellate Term of this Department reached a similar conclusion in People v. Smith, 81 Misc.2d 926, 927, 365 N.Y.S.2d 317, 318 (decided To our way of thinking, unsubmitted counts do not rise to the same level as dismissed counts since a refu......

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