People v. Wiley

• Decision Date: 03 June 1980
• Citation: 104 Misc.2d 114,429 N.Y.S.2d 519
• Parties: The PEOPLE of the State of New York v. Gilbert WILEY and Dennis Wise, Defendants.
• Court: New York Supreme Court

Page 519

429 N.Y.S.2d 519

104 Misc.2d 114

The PEOPLE of the State of New York v. Gilbert WILEY and Dennis Wise, Defendants.

Supreme Court, New York County, Part 40.

June 3, 1980.

Robert M. Morgenthau, Dist. Atty., New York County (Brian Rosner and Allen F. Sullivan, Asst. Dist. Atty., New York City, of counsel), for the People.

Steven Thomas and Leslie Crocker Snyder, New York City, for defendant.

HERBERT I. ALTMAN, Justice:

Defendant Gilbert Wiley (hereafter referred to as the defendant) moves, pursuant to CPL 210.20 (subd. 1, par. (e)), to dismiss the indictment, which charges him with the class A felony of murder in the second degree, on the ground that the prosecution is barred by reason of a previous prosecution. In April, 1979, the defendant was indicted in the State of Maryland, along with codefendant Dennis Wise and another, on the charge that he conspired with them to murder one Robert Addison. The defendant was acquitted of that conspiracy charge in September, 1979, upon a jury verdict. The narrow issue presented by this motion is whether the Maryland conspiracy statute (art. 27, § 38, Ann. Code of Md.) and the New York murder statute (Penal Law, § 125.25) "are designed to prevent very different kinds of harm or evil" (CPL 40.20, subd. 2, par. (b)).

The acts allegedly committed by the defendant which underlie both the Maryland and New York prosecutions are substantially the same. He is charged with having importuned and directed codefendant Wise to go from Maryland to New York to kill Robert Addison. Although the accomplished murder of Mr. Addison was not an element of the Maryland prosecution, such fact was sought to be proved in that state as an overt act in furtherance of the conspiracy. It is charged that codefendant Wise shot and killed Mr. Addison in New York on February 17, 1979.

I

The motion before me raises no constitutional issues. The defendant apparently recognizes that the still viable "dual sovereignty" doctrine permits successive prosecutions based upon the same transaction or event (see, United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729). It is for a legislature and not the judiciary to bar separate trial by different states or by a state and the Federal Government (see Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684). Accordingly, the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution is not relevant to the instant motion.

II

Defendant's motion to dismiss the indictment on the ground of previous prosecution is made pursuant to paragraph (e) of subdivision 1 of CPL 210.20. That statute, in turn, refers to CPL 40.20, which provides, in subdivision 2 thereof, that a "person may not be separately prosecuted for two offenses based upon the same act or criminal transaction." Six statutory exemptions to that language are then set forth. The New York statute does not recognize the dual sovereignty doctrine (save, in a limited way, by the sixth exception, the provisions of which are not applicable to this case). It is irrelevant, for purposes of the statute, whether the previous prosecution took place in New York or in another jurisdiction. The exception relied upon by the People as removing this case from the statutory bar against successive prosecutions for the same criminal transaction is found in paragraph (b) of subdivision 2 of CPL 40.20, which permits such successive prosecutions when: "Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil."

To begin, the term "criminal transaction" is defined in subdivision 2 of CPL 40.10 as a group of acts either "(a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture." Both parties are in agreement that the Maryland and New York prosecutions involve the same criminal transaction.

This then brings us back to the exception at issue. For the People to succeed it must appear that (1) the Maryland and New York statutes, as defined, each contain an element which is not an element of the other, and (2) the two statutes are designed to prevent very different kinds of harm or evil.

The Maryland and New York statutes clearly each contain an element not found in the other. The key element of the New York statute (Penal Law § 125.25) is an accomplished murder. The Maryland prosecution is founded upon a common-law offense, the gist of which is unlawful combination (not an element of the New York offense) and which requires no overt act to constitute the offense (see Wilson v. State, 8 Md.App. 653, 262 A.2d 91, 101; Jones v. State, 8 Md.App. 370, 259 A.2d 807; Piracci v. State, 207 Md. 499, 115 A.2d 262; Quaglione v. State, 15 Md.App. 571, 292 A.2d 785).

In addition to the fact that the crimes charged each contain an element not contained in the other, the Court of Appeals has recognized that the crime of conspiracy and the crime which is the object of that conspiracy are two separate offenses (People v. McGee, 49 N.Y.2d 48, 424 N.Y.S. 157, 399 N.E.2d 1177). The court in McGee further stated that "(a)ccessorial conduct may not be equated with mere membership in a conspiracy and the State may not rely solely on the latter to prove guilt of the substantive offense" (49 N.Y.2d at p. 58, 399 N.E.2d at p. 1182).

III

We now come to the crux of the motion, that is, whether the Maryland and New York offenses "are designed to prevent very different kinds of harm or evil." The defendant relies upon a trilogy of cases decided by our Court of Appeals (hereafter jointly referred to as the trilogy) which involved successive Federal and New York narcotics prosecutions.

In the first of those cases, Matter of Abraham v. Justices of the New York Supreme Court of Bronx County (37 N.Y.2d 560, 376 N.Y.S.2d 79, 338 N.E.2d 597), the petitioners, who had been convicted in the Federal Court of conspiring to distribute and to possess with the intent to distribute narcotic drugs, were charged in New York State, inter alia, with criminal possession of a dangerous drug in the first degree. The conduct constituting the State possession charge was alleged as an overt act in the Federal indictment. After rejecting the petitioners' Fifth Amendment double jeopardy argument on the basis of the dual sovereignty doctrine, the Court of Appeals turned to an analysis of the pertinent New York statutes. It found that the acts involved in the successive prosecutions constituted a single criminal transaction. The exception contained in paragraph (b) of subdivision 2 of CPL 40.20 was found to be inapplicable because "(c)learly, the Federal drug conspiracy laws and the State's drug possession laws are aimed at the same evil narcotics trafficking" (supra, p. 567, 376 N.Y.S.2d 79, 338 N.E.2d 597).

The second case of the trilogy (in actuality four separate cases decided in the same opinion), People v. Abbamonte (43 N.Y.2d 74, 400 N.Y.S.2d 766, 371 N.E.2d 485), involved defendants who had been convicted in the Federal courts of conspiracy to violate Federal drug laws and were then prosecuted for substantive State drug offenses allegedly committed during the period covered by the Federal conspiracy charges but, unlike the posture in Abraham, not alleged as overt acts in the Federal prosecutions. In Abbamonte the Court of Appeals extended its Abraham holding and taught us that when the substantive State drug offense was not, but could have been, alleged and proved in the Federal conspiracy prosecution, "the subsequent State prosecution offends the statutory mandate" (supra, p. 79, 400 N.Y.S.2d p. 767, 371 N.E.2d p. 487). The Court repeated the steps taken in its analysis in the Abraham case and then concluded (p. 86, 400 N.Y.S.2d p. 772, 371 N.E.2d p. 491):

"The problems for prosecutors engendered by CPL 40.20 and the analysis applicable to criminal prosecutions are due, it bears repeating, to the embracive nature of the crime of conspiracy. With respect to more narrowly defined substantive crimes there are no serious problems (cf. People v. Lo Cicero, 14 N.Y.2d 374, 379 (251 N.Y.S.2d 953, 200 N.E.2d 622, 624-625), supra.). The public policy choice is either to avoid using the conspiracy alternative if double prosecution of offenders in criminal partnership is regarded as desirable, or to redefine the distinctions in CPL 40.20 to permit, in some manner, an exception for conspiracy along with the other exceptions. Neither in policy nor logic should the accident of pleading allegations or proof upon the trial be determinative. The unsound paradoxes to which that would lead have been discussed and need no repetition." (Emphasis supplied.)

In the final case of the trilogy, People v. Vera (47 N.Y.2d 825, 418 N.Y.S.2d 575, 392 N.E.2d 562), the Court once again extended its prior holdings and noted that they were applicable even if the State and Federal indictments resulted from separate investigations and if the Federal authorities were unaware of the particular sale which formed the basis of the...