People v. Prescott, 66 A.D.2d 61 (1978)
A statutory double jeopardy claim under state law must be raised before or during a guilty plea to be preserved for appellate review; a constitutional double jeopardy claim, however, can be raised for the first time on appeal.
Summary
Prescott pleaded guilty in federal court to fraud and subsequently pleaded guilty in state court to attempted grand larceny based on similar conduct. She argued on appeal that the state prosecution was barred by New York’s statutory double jeopardy protections (CPL 40.20), claiming it was based on the same criminal transaction as the federal case. The New York Court of Appeals held that because Prescott did not raise this statutory claim before or during her guilty plea in state court, it was waived and could not be raised for the first time on appeal. However, the Court noted a constitutional double jeopardy claim could be raised for the first time on appeal. The court also found the restitution order exceeded the permissible probationary period and remitted the case for modification of the sentence.
Facts
Prescott engaged in fraudulent activity between August and September 1974.
In November 1976, she pleaded guilty in federal court to fraudulently demanding money using a false instrument.
Prior to the federal plea, in April 1976, Prescott was indicted in Kings County, New York, for possessing stolen property and altering forged instruments with intent to defraud, stemming from the same period in 1974.
On January 3, 1977, she pleaded guilty in state court to attempted grand larceny in the second degree in satisfaction of the state indictment.
She received a sentence of five years’ probation conditioned on making restitution of over $22,000 at $25 per week, which would extend beyond the probationary period.
Procedural History
Prescott pleaded guilty to a federal charge in the Eastern District of New York.
She was subsequently indicted and pleaded guilty in Kings County Supreme Court.
Prescott appealed the state court conviction, raising a statutory double jeopardy claim for the first time.
The Appellate Division affirmed her conviction.
The case was appealed to the New York Court of Appeals.
Issue(s)
Whether a statutory claim under CPL 40.20 that one may not be separately prosecuted for two offenses based on the same act or criminal transaction is preserved for appellate review when it is not raised prior to or at the time of a guilty plea.
Whether a restitution order that extends beyond the lawful period of probation is permissible under New York Penal Law article 65.
Holding
No, because the statutory previous prosecution claim was waived by appellant’s plea of guilty and therefore has not been preserved for appellate review.
No, because under article 65 of the Penal Law, restitution may not be ordered beyond the lawful period of probation.
Court’s Reasoning
The Court of Appeals distinguished between statutory and constitutional double jeopardy claims. It stated that statutory claims, such as those under CPL 40.20, are subject to the usual rules of preservation, meaning they must be raised at the trial level to be considered on appeal. By pleading guilty without raising the statutory double jeopardy issue, Prescott waived her right to assert it later. The court explicitly contrasted this with constitutional double jeopardy claims, which can be raised for the first time on appeal, citing People v. Michael, 48 NY2d 1.
Regarding the restitution order, the court found that the sentencing court erred by ordering restitution that would extend beyond the five-year probationary period. The court noted that the People conceded this point, acknowledging that article 65 of the Penal Law limits restitution to the duration of probation. Therefore, the case was remitted for modification of the sentence to comply with the law.
The court provided a clear procedural rule: a statutory double jeopardy claim must be raised before or during the guilty plea to preserve it for appeal. A failure to raise it constitutes a waiver. This case emphasizes the importance of raising all potential legal challenges early in the proceedings to preserve them for appellate review. It also highlights the distinction between statutory and constitutional claims in terms of preservation requirements.