People v. Di Lapo, 14 N.Y.2d 170 (1964)
Under New York Penal Law § 1938, multiple punishments are permissible for separate and distinct acts that violate different penal law sections, even if they arise from a single transaction.
Summary
Di Lapo was initially convicted of assault with intent to kill following a murder trial. Subsequently, he pleaded guilty to attempted robbery first degree stemming from the same incident. The court sentenced him to consecutive terms for both offenses. Di Lapo argued that Penal Law § 1938 barred the second punishment because the assault and attempted robbery constituted a single act. The Court of Appeals affirmed the consecutive sentences, holding that the acts of attempted robbery and assault, while related, contained distinct elements that justified separate punishments.
Facts
Di Lapo and others went to the victim’s house with the intent to rob him. Two accomplices broke into the house, followed by Di Lapo. The victim shouted a warning and fired a gun. Di Lapo returned fire, wounding the victim. The group fled without stealing anything. Di Lapo was later charged with murder, burglary, and attempted robbery. He was acquitted of murder but convicted of assault with intent to kill. He later pleaded guilty to attempted robbery first degree related to the same incident.
Procedural History
Di Lapo was initially indicted for murder and several counts of burglary and attempted robbery. He was convicted of assault with intent to kill in the murder trial. Subsequently, he pleaded guilty to one count of attempted robbery first degree. The Erie County Court sentenced him to a consecutive term for the attempted robbery. The Appellate Division, Fourth Department, affirmed the judgment. Di Lapo appealed to the New York Court of Appeals.
Issue(s)
Whether, under Penal Law § 1938, the elements of attempted robbery first degree and assault with intent to kill were so identical that double punishment was impermissible despite the propriety of prosecuting them as separate crimes.
Holding
No, because there were separate acts or elements that constituted assault with intent to kill and attempted robbery independently; therefore, double punishment was permissible.
Court’s Reasoning
The court analyzed Penal Law § 1938, which prohibits multiple punishments for the same act or omission when it is made criminal and punishable in different ways by different provisions of law. The court relied on People ex rel. Maurer v. Jackson, 2 N.Y.2d 259 (1957), which held that “if separate and distinct acts were committed, and that they violated more than one section of the Penal Law, punishment for each of them would be proper although they arose out of a single transaction.” The court distinguished the attempted robbery, which involved breaking into the house with the intent to steal and putting the victim in fear, from the subsequent act of shooting the victim, which constituted a separate act with a separate intent to kill. The court found it “not impossible to say that there were separate acts or elements making out, separately, assault with intent to kill and attempted robbery, and that double punishment was, therefore, permissible.” Although the two crimes were closely related in time and arose from the same series of events, the court concluded that they were sufficiently distinct to justify separate punishments. The court also noted that a previous denial of habeas corpus relief for Di Lapo did not affect the current question of double punishment because the prior ruling addressed the validity of the indictment itself, not the permissibility of consecutive sentences.