People v. Rossi, 38 N.Y.2d 311 (1975)
Multiple perjury charges, arising from a single meeting but concerning discrete factual inquiries, can be the subject of separate prosecutions, convictions, and potentially consecutive sentences, allowing retrial on unresolved counts after a partial verdict.
Summary
Rossi was indicted on perjury charges related to a meeting with a Waterfront Commission Assistant Counsel. After a trial, the jury acquitted Rossi on two counts but couldn’t reach a verdict on five others, leading to a mistrial on those counts. Rossi sought to prevent retrial on the unresolved counts, arguing double jeopardy. The New York Court of Appeals held that retrial was permissible because the perjury charges involved separate and distinct factual inquiries, not a single act, and thus consecutive sentences could be imposed if convicted on all counts.
Facts
Rossi met with Anthony Piazza, an Assistant Counsel of the New York-New Jersey Waterfront Commission. Rossi later gave sworn testimony about the meeting in two Appellate Division proceedings related to a complaint by Piazza. Rossi was indicted on eight counts of perjury and one count of obstructing governmental administration. Counts 1 & 2: Rossi falsely swore the sole purpose of the meeting was to screen memberships for the American-Italian Anti-Defamation League. Counts 3 & 4: Rossi falsely swore he and Piazza discussed the League at the meeting. Counts 5 & 6: Rossi falsely swore he had no knowledge of any Waterfront Commission investigation of Thomas Masotto and American Stevedores when arranging the meeting. Count 8: Rossi gave irreconcilable testimony as to when he knew Masotto worked for American Stevedores.
Procedural History
The trial court dismissed the obstructing governmental administration charge before trial. After 20 hours of deliberation, the jury found Rossi not guilty on counts 3 and 4 but couldn’t reach a verdict on counts 1, 2, 5, 6, 7, and 8, resulting in a mistrial on those counts. Rossi initiated an Article 78 proceeding for prohibition, arguing double jeopardy barred retrial on the unresolved counts. The Appellate Division granted the petition, prohibiting retrial and dismissing counts 1, 2, 5, 6, and 8. The Court of Appeals granted permission to appeal.
Issue(s)
Whether retrial on the perjury counts (1, 2, 5, 6, and 8), after a partial acquittal on other counts (3 and 4) and a hung jury on the remaining counts, is barred by double jeopardy principles and CPL 310.70(2), where the perjuries charged relate to a single event but involve separate factual inquiries.
Holding
No, because the perjury charges related to separate and distinct factual inquiries; therefore, consecutive sentences could be imposed if Rossi were convicted on all counts, and retrial is permissible.
Court’s Reasoning
The court reasoned that although the perjury charges related to a single event (the meeting), each alleged perjury involved a separate act. Counts 1 and 2 concerned the ‘sole purpose’ of the meeting, addressing a condition existing prior to the meeting. Counts 3 and 4 related to what was discussed at the meeting. Counts 5 and 6 related to Rossi’s knowledge of a Waterfront Commission investigation at the time he arranged the meeting, dealing with Rossi’s subjective knowledge. Count 8 related to when Rossi first knew Masotto worked for American Stevedores, independent of the meeting’s purpose or content. The Court distinguished this case from contempt charges, where a single refusal to testify may constitute one continuous act. The Court emphasized that the jury’s disagreement on the five unresolved counts indicates they recognized the distinct ‘acts’ involved. However, the court cautioned against prosecutors attempting to fracture a single, integral inquiry into multiple aspects through carefully phrased questions, where the distinctions are merely linguistic and not substantive. CPL 310.70(2) allows retrial on an unresolved count of an indictment when it is consecutive, as defined in CPL 300.30(2), to every count upon which the jury rendered a verdict. Penal Law § 70.25(2) states that sentences must run concurrently when offenses are committed through a single act.