People ex rel. Zakrzewski v. Fay, 18 N.Y.2d 403 (1966)
A trial on an indictment that alleges all the elements of a lesser-included offense places the defendant in jeopardy, and a subsequent indictment for the same conduct, even with an added element to charge a higher offense, violates double jeopardy protections.
Summary
Zakrzewski sought habeas corpus relief, arguing his sentence as a multiple felony offender was based on a prior conviction obtained in violation of double jeopardy. He was initially tried for first-degree burglary under an indictment that was later dismissed due to a perceived defect. A new indictment, alleging the same conduct with a minor addition, led to a conviction for second-degree burglary. The New York Court of Appeals held that the initial indictment, even if defective for first-degree burglary, was sufficient for second-degree burglary, thus the first trial placed him in jeopardy. The subsequent indictment and conviction were deemed unconstitutional, warranting his release.
Facts
In 1924, Zakrzewski was indicted for first-degree burglary, accused of breaking into an occupied dwelling at night with another person, Jaruszewski. The jury found him guilty as charged. The district attorney moved to dismiss the indictment before sentencing, claiming it lacked the essential allegation that Zakrzewski was “assisted by a confederate actually present,” a requirement for first-degree burglary under the applicable penal law. The court dismissed the indictment and resubmitted the case to the grand jury.
Procedural History
The grand jury issued a second indictment, adding the clause that each defendant had been “aided by the other actually present.” Zakrzewski pleaded guilty to second-degree burglary under this second indictment, which later served as the basis for his treatment as a second felony offender. In 1955, he was convicted of third-degree burglary and sentenced as a multiple felony offender. He then sought a writ of habeas corpus, arguing the second indictment and conviction were void due to double jeopardy. The lower courts denied the writ, but the Court of Appeals reversed.
Issue(s)
Whether a trial on an indictment, which may be defective in alleging all elements of the highest crime charged but does allege all elements of a lesser included offense, places a defendant in jeopardy, thus barring a subsequent trial on a new indictment alleging the same conduct with a slightly different element.
Holding
Yes, because the original indictment contained all the elements of second-degree burglary, the crime for which Zakrzewski was ultimately convicted, and the trial had progressed to a verdict. Therefore, double jeopardy applied, and the second indictment was unconstitutional.
Court’s Reasoning
The court emphasized that the constitutional protection against double jeopardy prevents a person from being twice put in jeopardy for the same offense. Jeopardy attaches when a defendant is put on trial before a competent court with a sufficient indictment. However, if the initial indictment is so defective that it couldn’t support a conviction, a retrial is permissible. Here, the court reasoned that the original indictment contained all essential elements of second-degree burglary, even if it lacked a critical element of first-degree burglary. The court cited People v. Oliver, 3 N.Y.2d 684, where an indictment for first-degree burglary lacking the element of “nighttime” was deemed sufficient for second-degree burglary. The court stated, “The misnomer in describing the offense as in the first instead of the second degree is of no moment”. Since the initial trial progressed to a verdict on an indictment sufficient for second-degree burglary, Zakrzewski was in danger of a valid judgment. Permitting the district attorney to terminate proceedings after a verdict and procure a new indictment violated double jeopardy. The court concluded that the second indictment was unconstitutional, and the conviction based on it could not serve as a predicate for multiple felony offender status, entitling Zakrzewski to release.