Wiley v. Altman

• Decision Date: 02 April 1981
• Citation: 420 N.E.2d 371,438 N.Y.S.2d 490,52 N.Y.2d 410
• Parties: , 420 N.E.2d 371 In the Matter of Gilbert WILEY, Respondent, v. Herbert ALTMAN, as a Justice of the New York Supreme Court, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 490

438 N.Y.S.2d 490

52 N.Y.2d 410, 420 N.E.2d 371

In the Matter of Gilbert WILEY, Respondent,

v.

Herbert ALTMAN, as a Justice of the New York Supreme Court,

et al., Appellants.

Court of Appeals of New York.

April 2, 1981.

Robert M. Morgenthau, Dist. Atty. (Brian Rosner and Robert M. Pitler, New York City, of counsel), for appellants.

Steven A. Thomas, Baltimore, of the Maryland Bar, admitted on motion pro hac vice, and Leslie Crocker Snyder, New York City, for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

We are once again called upon to determine the parameters of the defense of previous prosecution set forth in CPL article 40. Specifically, the question posed is whether the petitioner may be prosecuted for murder in New York after he was tried for conspiracy to commit that murder in Maryland. We conclude that the present prosecution does not come within any of the exceptions to the statutory bar against vexatious multiple prosecutions.

The case arises out of an episode which occurred on February 17, 1979, when an individual was shot to death in Manhattan. It later was charged that the victim had been murdered by one Dennis Wise pursuant to an agreement he entered into with the petitioner, Gilbert Wiley, in Maryland. ¹ In April, 1979, a Grand Jury indictment charging Wise and Wiley with conspiracy to commit the murder was returned in Maryland. A month later, a New York County Grand Jury indicted the two for second degree murder. The Maryland case, which went to trial first, resulted in an acquittal.

Based upon the Maryland proceedings, Wiley moved to dismiss the indictment as violative of his statutory right not to be prosecuted twice for the same criminal conduct (CPL 40.20). Though it found the question "a close one and not altogether free from doubt", Criminal Term denied the motion (104 Misc.2d 114, 119, 429 N.Y.S.2d 519).

Review of the determination was then sought at the Appellate Division by way of this article 78 proceeding. That court, in a thoughtful opinion by Presiding Justice MURPHY, granted the petition to the extent of dismissing the indictment and prohibiting prosecution; 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 was correct.

At the outset, we note that there is no claim that the New York prosecution would invoke the Federal constitutional strictures against double jeopardy (U.S.Const. 5th Amdt.). Such an argument would, in any event, be unavailing since, under the so-called "dual sovereignty" doctrine, a prosecution by separate sovereigns for an act that infringes the penal laws of each is permissible (see, e. g., United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303; People v. Abbamonte, 43 N.Y.2d 74, 400 N.Y.S.2d 766, 371 N.E.2d 485; but see United States v. Grimes, 3 Cir., 641 F.2d 96, 100-104).

Our concern, then, is solely with the protections afforded by CPL 40.20, which legislatively nullifies the "dual sovereign" doctrine in this State (People v. Abbamonte supra, 43 N.Y.2d p. 81, 400 N.Y.S.2d 766, 371 N.E.2d 485). ⁴ With certain exceptions, subdivision 2 of that section provides that "person may not be separately prosecuted for two offenses based upon the same act or criminal transaction". As we observed in Abbamonte, pp. 81-82, 400 N.E.2d 766, 371 N.E.2d 485, "absent the statutory exceptions, no matter the number of statutory offenses technically violated or the number of jurisdictions involved, an accused is not to suffer repeated prosecution for the same general conduct". Further, it is the fact of the prior prosecution, not the result, which triggers the statutory protection (see CPL 40.30, subd. 1; cf. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24).

The People do not dispute that both the Maryland prosecution and the present indictment stem from the same "criminal transaction", defined as "two or more or 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" (CPL 40.10, subd. 2). ⁵ Rather, it is contended that the present prosecution falls within the exception contained in CPL 40.20 (subd. 2, par. which reads, "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". ⁶ We disagree.

As noted, the prosecution in Maryland was for conspiracy, which we have had occasion to observe is a " 'crime * * * embracall of the overt acts and substantive crimes in the persisting criminal enterprise' " (People v. Vera, 47 N.Y.2d 825, 826, 418 N.Y.S.2d 575, 392 N.E.2d 562, quoting People v. Abbamonte, 43 N.Y.2d 74, 85, 400 N.Y.S.2d 766, 371 N.E.2d 485, supra). So, while Maryland law does not appear to require an overt act to complete the offense (Wilson v. State, 8 Md.App. 653, 671, 262 A.2d 91), it does permit the same punishment as that proscribed for the object crime to which a conspiracy is directed (Ann.Code of Md., art. 27, § 38; Jones v. State, 8 Md.App. 370, 259 A.2d 807), in this case life imprisonment (Ann. Code of Md., art. 27, § 413). Clearly, then, both the Maryland prosecution, based though it was on that State's conspiracy statute, and the present prosecution for murder under this State's laws were directed at a like goal: punishment for the unlawful taking of a particular human life (cf. Matter of Abraham v. Justices of N. Y. Supreme Ct. of Bronx County, 37 N.Y.2d 560, 567, 376 N.Y.S.2d 79, 338 N.E.2d 597, supra). Put another way, in light of the fact that the "governmental interests" are the same in both prosecutions, the statutory exception is inapplicable (see Commonwealth v. Grazier, 481 Pa. 622, 631, 393 A.2d 335).

Moreover, we cannot accept the notion, pressed by the People, that the statutory term "harm or evil" is to be governed by the geographical extent of the police power. It was purely fortuitous that in our prior decisions a geographical overlap existed between the two prosecuting authorities (see People v. Vera, 47 N.Y.2d 825, 418 N.Y.S.2d 575, 392 N.E.2d 562, supra; People v. Abbamonte, 43 N.Y.2d 74, 400 N.Y.S.2d 766, 371 N.E.2d 485, supra; Matter of Abraham v. Justices of N. Y. Supreme Ct. of Bronx County, 37 N.Y.2d 560, 376 N.Y.S.2d 79, 338 N.E.2d 597, supra ; and Matter of Cirillo v. Justices of Supreme Ct. of State of N. Y., 34 N.Y.2d 990, 360 N.Y.S.2d 416, 318 N.E.2d 607, affg. 43 A.D.2d 4, 349 N.Y.S.2d 129 [all involving Federal narcotics conspiracies]).

The decision in Matter of Kessler v. Sherman, 41 N.Y.2d 851, 393 N.Y.S.2d 703, 362 N.E.2d 254, which did not involve a conspiracy prosecution, was not the result of a divergent analytical course. ⁷ There, the interest in environmental protection expressed in the State Tidal Wetlands Act was found "to differ materially in scope and purpose" from that embraced in the wetlands ordinance of the Town of Shelter Island. The court also was of the view that the lack of a State permit did not violate the town ordinance which petitioner was charged with violating by acting without a permit from the town board. Concluding from this that the governmental interests were different, a second prosecution was permitted (see Commonwealth v. Grazier, 481 Pa. 622, 631, 393 A.2d 335, supra). Moreover, the petitioner in Kessler could have easily moved to consolidate the two accusatory instruments filed in that case and thus avoided separate trials. ⁸ So circumstanced, this failure to do so amounted to a waiver of his right to mandatory joinder (CPL 40.40; People v. Dean, 56 A.D.2d 242, 246, 392 N.Y.S.2d 134, affd. 45 N.Y.2d 651, 412 N.Y.S.2d 353, 384 N.E.2d 1277).

On this rationale, the judgment of the Appellate Division should be affirmed.

JASEN, Judge (dissenting).

This appeal presents the question whether prosecution of petitioner in New York for the murder of Robert Addison is barred under CPL 40.20 (subd. 2) by reason of petitioner's prior acquittal in Maryland for conspiracy to commit the same murder. At issue is whether the New York murder statute (Penal Law, § 125.25) and the Maryland law of conspiracy "are designed to prevent very different kinds of harm or evil" (CPL 40.20, subd. 2 par. In my view, prosecution of petitioner in New York is not barred by the statutory double jeopardy provision and, therefore, I respectfully dissent.

The facts are undisputed. On February 17, 1979, Robert Addison was shot and killed in New York City. On April 12, 1979, petitioner was indicted in Maryland upon a charge of conspiracy to commit murder. The Maryland indictment alleged that petitioner had conspired with one Dennis Wise and Howard Lockwood "wilfully and of deliberately premeditated malice aforethought to kill and murder" Addison. Thereafter, in May, 1979, petitioner, Wise and Lockwood were indicted in New York and charged with murder in the second degree. (See Penal Law, § 125.25.) The New York indictment alleged that petitioner and the other two defendants, "with intent to cause the death of Robert Addison, caused the death of Robert Addison by shooting him with a shotgun." On September 26, 1979, a Maryland jury acquitted petitioner of the conspiracy charge. In January, 1980, petitioner was arrested in Maryland and brought to New York to be tried on the pending charge of murder in the second degree.

In Supreme Court, New York County, petitioner moved to dismiss the New York murder indictment on the ground that the prosecution was barred by reason of the previous Maryland acquittal on the conspiracy charge. (See CPL 40.20, subd. 2.) Petitioner's ...