Wiley v. Altman
| Decision Date | 30 September 1980 |
| Citation | 76 A.D.2d 701,431 N.Y.S.2d 826 |
| Parties | In the Matter of the Application of Gilbert WILEY, Petitioner, for a judgment under Article 78 of the Civil Practice Law and Rules v. Honorable Herbert ALTMAN, Justice of the New York Supreme Court, New York County, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Steven A. Thomas, Baltimore, Md., of counsel (Leslie Crocker Snyder, New York City, and Moore, Libowitz & Thomas, Baltimore, Md., attorneys), for petitioner.
Brian Rosner, Asst. Dist. Atty., New York City, of counsel (Robert M. Morgenthau, Dist. Atty., New York City, attorney), for respondent.
Before MURPHY, P. J., and KUPFERMAN, BIRNS, MARKEWICH and SILVERMAN, JJ.
In this Article 78 proceeding originating in the Appellate Division, petitioner Wiley seeks to annul an order of the Supreme Court, New York County (Herbert Altman, J.), entered June 3, 1980, which denied his motion to dismiss the indictment under CPL § 210.20 subd. 1(e). Petitioner also seeks an order "prohibiting respondents from taking any further action or proceedings in connection with the case . . .". The petitioner does not name the "respondents" in the body of the petition. The caption of the petition mentions Justice Altman as the sole respondent. Since the People do not challenge the legal sufficiency of the petition, we shall treat this second branch of the petition as one seeking to prohibit the respondent Justices of the Supreme Court, New York County and respondent Robert M. Morganthau, District Attorney of New York County, from trying the petitioner under the subject indictment charging him with murder in the second degree.
On February 17, 1978, one Robert Addison was shot to death in New York City. On April 12, 1979, the petitioner was indicted in Baltimore, Maryland upon the charge of conspiracy. The Maryland indictment alleged that Wiley had conspired with one Dennis Wise and Howard Lockwood "wilfully and of deliberately premeditated malice aforethought to kill and murder Addison."
Wiley, Wise and Lockwood were indicted in New York in May of 1979 for the crime of murder in the second degree. The New York indictment alleged that the defendants "with intent to cause the death of Robert Addison, caused the death of Robert Addison by shooting him with a shotgun."
In September of 1979, Wiley was acquitted of the conspiracy charge after a trial in Maryland. There was evidence at that trial indicating that Wiley had conspired in Maryland but that he had never entered New York in furtherance of the conspiracy or to commit the murder. In January of 1980, he made a motion in the New York criminal proceeding to dismiss the indictment under CPL § 210.20 subd. 1(e). It was Wiley's contention that the New York proceeding was barred, pursuant to CPL § 40.20, by his prior acquittal in Maryland. Justice Altman denied this motion in an extended opinion. Sup., 429 N.Y.S.2d 519. Thereafter, Wiley commenced this Article 78 proceeding in the Appellate Division.
A defendant in a criminal proceeding may seek a dismissal of that proceeding on the ground of "previous prosecution" through two different procedural vehicles. He may make a motion under CPL § 210.20 subd. 1(e) or he may bring an Article 78 proceeding (Matter of Nolan v. Court of General Sessions, 15 A.D.2d 78, 80, 222 N.Y.S.2d 635, aff'd 11 N.Y.2d 114, 227 N.Y.S.2d 1, 181 N.E.2d 751). Initially, Wiley chose to proceed under CPL § 210.20 subd. 1(e). While Justice Altman's order denying that motion could be directly reviewed upon an appeal from a final judgment convicting Wiley, that order may not be prematurely reviewed in this Article 78 proceeding. This application, insofar as it seeks a direct review of that order, is denied and the petition is dismissed pro tanto. Nevertheless, where relevant, we shall comment upon various points made in Justice Altman's opinion.
As was previously mentioned, the branch of the application in the nature of prohibition is a proper vehicle for challenging the New York indictment. The narrow issue presented is whether the New York indictment is barred under CPL § 40.20 subd. 2(b) by reason of the prior acquittal in Maryland. CPL § 40.20 subd. 2(b) provides:
We agree with Justice Altman that the Maryland and New York prosecutions are based on the same "criminal transaction" as that term is defined in CPL § 40.10 subd. 2. We also agree with his determination that each of the offenses contains elements not found in the other. However, we disagree with his final conclusion that the statutory provisions defining those offenses are designed to prevent very different kinds of harm or evil.
In a trilogy of cases, the Court of Appeals has recently found that, by reason of CPL § 40.20 subd. 2(b), a Federal prosecution for conspiracy to distribute narcotics bars any subsequent State prosecution for drug possession. In the earliest case, the Court of Appeals reasoned that the Federal drug conspiracy laws and the State drug possession laws are aimed at the same evil-narcotics trafficking. (Matter of Abraham v. Justices, 37 N.Y.2d 560, 567, 376 N.Y.S.2d 79, 338 N.E.2d 597.) In the second case, the Court of Appeals emphasized that the protection afforded by CPL § 40.20 is not circumscribed by the number of jurisdictions involved. (People v. Abbamonte, 43 N.Y.2d 74, 81, 82, 400 N.Y.S.2d 766, 371 N.E.2d 485.) The Court further stressed that conspiracy is an embracive crime. It embraces all of the overt acts and...
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Wiley v. Altman
...for procedural reasons, the application was dismissed insofar as it purported to seek direct review of the order made below (76 A.D.2d 701, 431 N.Y.S.2d 826). 2 A dissent on a question of law 3 permitted the People to appeal here as of right (CPLR 5601, subd. par. In our view, the majority ......