New York Law Review

Tag: Double Jeopardy

  • Rivera v. Firetog, 11 N.Y.3d 501 (2008): Double Jeopardy and Mistrials Based on Jury Deadlock

    Rivera v. Firetog, 11 N.Y.3d 501 (2008)

    A trial court’s decision to declare a mistrial based on jury deadlock is entitled to great deference and will not bar retrial on double jeopardy grounds unless the court abused its discretion by failing to explore appropriate alternatives or if the jury clearly indicated it had reached a partial verdict.

    Summary

    Rivera was tried for second-degree murder and criminal possession of a weapon, with lesser included manslaughter offenses submitted to the jury. After nearly six days of deliberation and multiple deadlock notes, the trial court declared a mistrial without inquiring whether the jury had reached a partial verdict, despite a request from defense counsel. Rivera sought to bar retrial on double jeopardy grounds. The New York Court of Appeals held that the trial court did not abuse its discretion in declaring a mistrial because the jury never declared it had reached a partial verdict and the trial court reasonably determined further deliberation would be futile.

    Facts

    Rivera was indicted for second-degree murder and weapon possession for a fatal stabbing. The trial court instructed the jury to consider first-degree manslaughter only if it acquitted Rivera of murder, and second-degree manslaughter only if it acquitted him of first-degree manslaughter. The jury sent multiple notes indicating deadlock. After the jury requested clarification of the manslaughter charges, it repeatedly asked for copies of all three charges. Defense counsel requested the court ask about a partial verdict before adjourning for the weekend. Ultimately, the jury sent another deadlock note stating they could not reach a unanimous decision after extensive deliberations.

    Procedural History

    The Supreme Court declared a mistrial after the jury indicated they were deadlocked. Rivera moved to dismiss the indictment on double jeopardy grounds, which the Supreme Court denied. Rivera then commenced an Article 78 proceeding to prevent retrial. The Appellate Division granted the petition, holding that the trial court abused its discretion in declaring a mistrial. The Court of Appeals reversed the Appellate Division, dismissing the petition and allowing retrial.

    Issue(s)

    Whether the trial court abused its discretion in declaring a mistrial based on jury deadlock without first inquiring whether the jury had reached a partial verdict, thereby barring retrial on double jeopardy grounds.

    Holding

    No, because the trial court reasonably determined that there was a manifest necessity to declare a mistrial and the jury never clearly declared that it had reached a partial verdict.

    Court’s Reasoning

    The Court of Appeals emphasized that double jeopardy protects a defendant’s right to have their trial completed by a particular tribunal. However, this right is subordinate to the public interest in seeing a criminal prosecution proceed to verdict. A mistrial may be declared when there is a manifest necessity, such as a genuinely deadlocked jury. The determination of jury deadlock is within the trial court’s discretion, which is entitled to great deference. The court must consider factors such as the length of trial and deliberations, communications between court and jury, and potential effects of further deliberation. Here, the jury deliberated longer than the trial lasted, sent three deadlock notes, and requested reinstruction on all three charges multiple times, suggesting it had not reached a verdict on any count. The court distinguished Matter of Robles v. Bamberger, where there was “overwhelming evidence” the jury had reached agreement on at least one count. The Court also rejected the argument that Matter of Oliver v. Justices of N.Y. Supreme Ct. of N.Y. County compelled a different result because, unlike in Oliver, the jury here never explicitly declared it had reached a partial verdict. The Court declined to create a per se rule requiring inquiry into a partial verdict whenever requested, stating, “no per se rules or mechanical formulas apply to mistrial determinations.” The Court concluded that the trial court reasonably determined there was a manifest necessity to declare a mistrial, and retrial does not violate double jeopardy principles.

  • Suarez v. Byrne, 10 N.Y.3d 523 (2008): Double Jeopardy and Retrial After Reversal of Depraved Indifference Murder

    10 N.Y.3d 523 (2008)

    A defendant can be retried for intentional manslaughter after the reversal of a conviction for depraved indifference murder, even if the jury in the first trial was instructed on intentional manslaughter but did not reach a verdict on that charge due to an “acquit-first” instruction and a guilty verdict on the depraved indifference murder charge.

    Summary

    Santos Suarez was convicted of depraved indifference murder, but acquitted of intentional murder. The Court of Appeals reversed the depraved indifference murder conviction for legal insufficiency. The key issue was whether Suarez could be retried for first-degree (intentional) manslaughter, a charge presented to, but not decided by, the jury in the first trial. The Court of Appeals held that retrial was permissible. Because the jury did not have a full opportunity to consider the intentional manslaughter charge due to an erroneous “acquit first” instruction, double jeopardy did not bar retrial on that charge.

    Facts

    Suarez stabbed his girlfriend, Jovanna Gonzalez, resulting in her death. He was charged with second-degree murder (intentional and depraved indifference), first-degree manslaughter (intentional), and weapon possession. At trial, he claimed self-defense and extreme emotional disturbance, denying intent. The judge instructed the jury to consider intentional murder first, then depraved indifference murder. He told them not to consider intentional manslaughter unless they acquitted Suarez of depraved indifference murder.

    Procedural History

    The jury acquitted Suarez of intentional murder but convicted him of depraved indifference murder. The trial court did not record a verdict on the manslaughter charge. The Appellate Division affirmed the conviction. The Court of Appeals reversed, holding that Suarez’s actions did not constitute depraved indifference murder as a matter of law, and remitted the case to the Appellate Division to address the appropriate remedy. On remittitur, the Appellate Division held that double jeopardy did not bar retrial for intentional manslaughter. Suarez appealed to the Court of Appeals.

    Issue(s)

    1. Whether the Double Jeopardy Clauses of the Federal and State Constitutions bar Suarez from being retried for intentional manslaughter after his acquittal of intentional murder and the reversal of his conviction for depraved indifference murder on legal insufficiency grounds.

    Holding

    1. No, because the jury did not have a full opportunity to consider the intentional manslaughter charge in the first trial due to the trial court’s instructions and the jury’s verdict on the depraved indifference murder charge.

    Court’s Reasoning

    The Court reasoned that the Double Jeopardy Clauses prevent a second prosecution for the same offense after acquittal or conviction. However, retrial is permissible after a successful appeal, except when the reversal is based on legal insufficiency of the evidence for that specific charge. The Court distinguished this case from People v. Biggs, where retrial was barred because the jury was never given an opportunity to consider the charge in question. Here, the jury was instructed on intentional manslaughter, but because of the trial court’s “acquit-first” instruction regarding the depraved indifference murder charge, the jury never reached it. The Court analogized the situation to a mistrial, where retrial is typically permissible. The Court also emphasized that its reversal was based on legal insufficiency of the evidence for depraved indifference murder, but not for intentional manslaughter. Therefore, retrial for intentional manslaughter did not violate double jeopardy principles. The Court also determined that depraved indifference murder and intentional manslaughter are not inconsistent counts, as a defendant can recklessly cause a grave risk of death while intentionally inflicting serious physical injury, citing People v. Trappier. The court stated, “While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice.”

  • Matter of Bruno v. Cerasulo, 6 N.Y.3d 684 (2006): Double Jeopardy and Dual Sovereignty in New York

    Matter of Bruno v. Cerasulo, 6 N.Y.3d 684 (2006)

    New York’s statutory double jeopardy protection under CPL 40.20(1) does not provide greater protection than the constitutional double jeopardy clauses; it prohibits only prosecuting the same person twice under the same statute for the same act.

    Summary

    Petitioners, previously acquitted in federal court on a charge of murder in aid of racketeering (VCAR) due to insufficient evidence of the “aid of racketeering” element, sought to prohibit a subsequent state prosecution for murder based on New York’s double jeopardy statute, CPL 40.20(1). The New York Court of Appeals held that CPL 40.20(1) does not bar the state prosecution because the federal VCAR prosecution and the state murder prosecution are not “for the same offense” within the meaning of the statute. The Court clarified that CPL 40.20(1) provides, at most, the same double jeopardy protection as the federal and state constitutions, and New York’s broader protections are found in CPL 40.20(2).

    Facts

    Petitioners were federally indicted for murder in aid of racketeering (VCAR) under 18 U.S.C. § 1959(a), alleging they murdered Sabatino Lombardi to gain position in the Genovese family. They were convicted in federal district court, but the Second Circuit reversed, finding insufficient evidence that the murder was intended to enhance their position in the Genovese family. Subsequently, a New York grand jury indicted petitioners for Lombardi’s murder.

    Procedural History

    1. Federal District Court: Petitioners convicted of murder in aid of racketeering.
    2. Second Circuit Court of Appeals: Reversed the conviction and dismissed the VCAR charge due to insufficient evidence.
    3. New York State Grand Jury: Indicted petitioners for Lombardi’s murder.
    4. Appellate Division: Denied petitioners’ request for a writ of prohibition against the state prosecution.
    5. New York Court of Appeals: Affirmed the Appellate Division’s decision.

    Issue(s)

    Whether CPL 40.20(1) bars a state prosecution for murder after the defendant was previously prosecuted in federal court for murder in aid of racketeering (VCAR) based on the same conduct, but acquitted due to insufficient evidence on the “aid of racketeering” element.

    Holding

    No, because CPL 40.20(1) provides, at most, the same double jeopardy protection as the federal and state constitutions, and New York’s broader statutory protections against double jeopardy, which might bar the prosecution, are found in CPL 40.20(2), which contains an exception applicable to these facts.

    Court’s Reasoning

    The Court reasoned that CPL 40.20(1), which states “A person may not be twice prosecuted for the same offense,” must be read in conjunction with CPL 40.10(1), which defines “offense” narrowly. According to CPL 40.10(1), “An ‘offense’ is committed whenever any conduct is performed which violates a statutory provision defining an offense; and when the same conduct or criminal transaction violates two or more such statutory provisions each such violation constitutes a separate and distinct offense.” Thus, the Court interpreted CPL 40.20(1) as prohibiting only prosecuting the same person twice under the same statute for the same act. The Court distinguished its prior holding in Matter of Klein v. Murtagh, which held that CPL 40.10(1)’s narrow definition of “offense” applies to CPL 40.20(1)’s double jeopardy provision. The Court acknowledged arguments that CPL 40.20(1) should incorporate the constitutional definition of “same offense” as reflected in Blockburger v. United States. However, it ultimately concluded that CPL 40.20(1) provides, at most, no more double jeopardy protection than the Constitutions do, and that New York’s broader protections are to be found in CPL 40.20(2), not CPL 40.20(1). The Court clarified prior comments in cases like Matter of Abraham v. Justices of N.Y. Supreme Ct. of Bronx County and Matter of Booth v. Clary, stating that those remarks required “clarification, if not correction.”

  • People v. Gorghan, 9 N.Y.3d 470 (2007): Double Jeopardy and Prosecutorial Misconduct

    People v. Gorghan, 9 N.Y.3d 470 (2007)

    When a prosecutor engages in misconduct during trial, double jeopardy will only bar retrial if the misconduct was deliberately intended to provoke the defendant into moving for a mistrial.

    Summary

    Defendant was convicted of rape and related charges. The Appellate Division reversed the conviction due to prosecutorial misconduct. Upon remittal, the defendant sought to bar retrial on double jeopardy grounds, arguing the misconduct warranted dismissal of the charges. The Court of Appeals held that while the prosecutor’s conduct was deplorable, it did not bar retrial because the intent was to secure a conviction, not to provoke a mistrial. The court clarified that double jeopardy bars retrial only when the prosecutorial misconduct is specifically intended to cause a mistrial, depriving the defendant of their right to a verdict from the initial jury.

    Facts

    The defendant was accused of raping his live-in girlfriend’s daughter in 1997. The victim reported the abuse to the police in 1999, including allegations of childhood abuse. The defendant was subsequently charged with rape, sodomy, sexual abuse, and criminal possession of a weapon, all allegedly occurring in 1997 or later. Prior to trial, the court ruled much of the evidence of defendant’s prior uncharged criminal and immoral acts inadmissible. The prosecutor repeatedly attempted to introduce the excluded evidence, referenced matters not in evidence, made unsupportable assertions, and urged the jury to draw improper inferences, despite the court’s rulings. The defendant objected and moved for a mistrial three times, but the motions were denied.

    Procedural History

    The defendant was convicted on all charges. The Appellate Division reversed the conviction and ordered a new trial, citing a pervasive pattern of prosecutorial misconduct prejudicial to a fair trial. Upon remittal to the County Court, the defendant moved to bar retrial on double jeopardy grounds, which was denied. The defendant then commenced an Article 78 proceeding in the Appellate Division to prohibit a second trial. The Appellate Division dismissed the petition, finding the misconduct was intended to secure a conviction, not to provoke a mistrial. The New York Court of Appeals affirmed this decision.

    Issue(s)

    Whether double jeopardy principles bar retrial of a defendant when the conviction was reversed on appeal due to prosecutorial misconduct, but the misconduct was intended to secure a conviction rather than to provoke a mistrial motion?

    Holding

    No, because double jeopardy only bars retrial when the prosecutorial misconduct was deliberately intended to provoke a mistrial motion. Here, the prosecutor’s intent was to secure a conviction, not to cause a mistrial.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s decision, holding that while the prosecutor’s conduct was “deplorable,” double jeopardy did not bar retrial because the misconduct was motivated by an intent to secure a conviction, not to provoke a mistrial. The Court explained that the Double Jeopardy Clause protects defendants from multiple prosecutions for the same offense, including the right to have the case decided by the initial jury. However, this right is not absolute. An exception exists when a prosecutor engages in misconduct specifically intended to provoke a mistrial motion, thereby eviscerating the defendant’s right to a verdict from the first jury. The Court emphasized that this exception applies equally to reversals on appeal as to mistrials granted by the trial court. Citing Matter of Davis v. Brown, the court stated that when a prosecutor “fears the case is headed toward acquittal and intentionally causes a mistrial, the calculated result of this prosecutorial misconduct is to deprive the defendant of the right to have the case completed before the first jury.” However, because the Appellate Division found that the prosecutor’s intent was to obtain a conviction, the defendant was only entitled to a new, fair trial. As the court noted in People v. Adames, “The corrective action for prosecutorial trial misconduct should ordinarily not vary whether a verdict is nullified by a trial court or by an appellate court”.

  • People v. Suarez, 6 N.Y.3d 224 (2005): Double Jeopardy and Dismissal for Insufficient Evidence

    6 N.Y.3d 224 (2005)

    Dismissal of charges due to insufficient evidence is equivalent to an acquittal for double jeopardy purposes, barring subsequent prosecution for the same offense or a lesser included offense.

    Summary

    Suarez was indicted for murder but the trial court withdrew the intentional murder counts due to insufficient evidence, submitting only depraved indifference murder and manslaughter charges. The jury acquitted Suarez of murder but couldn’t reach a verdict on manslaughter. He was then indicted for first-degree manslaughter. The New York Court of Appeals held that withdrawing the intentional murder charges was an acquittal, and since first-degree manslaughter is a lesser included offense of intentional murder, retrying Suarez for manslaughter violated double jeopardy. This case clarifies that a dismissal for insufficient evidence acts as an acquittal.

    Facts

    In February 1999, Suarez fatally shot two individuals. He was indicted on multiple counts, including first-degree murder, second-degree murder (both intentional and depraved indifference), and weapons possession. The trial court repeatedly stated there was insufficient evidence of intentional murder. The court only submitted depraved indifference murder and second-degree manslaughter (as a lesser included offense) to the jury.

    Procedural History

    The jury acquitted Suarez of the murder charges but deadlocked on the manslaughter charges, resulting in a mistrial. Suarez was subsequently indicted for first-degree manslaughter and second-degree manslaughter. The trial court denied Suarez’s motion to dismiss the second indictment, arguing double jeopardy. A second jury convicted Suarez of two counts of first-degree manslaughter. The Appellate Division affirmed. The New York Court of Appeals reversed, holding that the second trial violated double jeopardy principles.

    Issue(s)

    1. Whether the trial court’s withdrawal of the intentional murder counts from the jury’s consideration due to insufficient evidence constituted an acquittal for double jeopardy purposes?
    2. Whether first-degree manslaughter is the same offense as intentional second-degree murder for double jeopardy purposes, such that acquittal of the greater offense precludes subsequent prosecution for the lesser offense?

    Holding

    1. Yes, because the trial court’s decision not to submit the intentional murder counts to the jury, based on a finding of insufficient evidence, amounted to a dismissal of those charges and thus the equivalent of an acquittal for double jeopardy purposes.
    2. Yes, because first-degree manslaughter is a lesser included offense of second-degree intentional murder, requiring no proof beyond that which is required for conviction of the greater offense.

    Court’s Reasoning

    The Court of Appeals relied on established double jeopardy principles, stating that double jeopardy protects against a second prosecution for the same offense after an acquittal. Citing United States v. Martin Linen Supply Co., the court emphasized that the label given to a judge’s action is not controlling; rather, the key is whether the ruling represents a resolution of some or all of the factual elements of the offense charged. Here, the trial judge’s repeated statements regarding the insufficiency of evidence for intentional murder, coupled with the decision to withhold those charges from the jury, constituted a dismissal amounting to an acquittal.

    The court then applied the Blockburger v. United States test to determine whether first-degree manslaughter and second-degree murder are the “same” offense for double jeopardy purposes. The Blockburger test asks whether each provision requires proof of an additional fact that the other does not. Second-degree murder requires intent to cause death, while first-degree manslaughter requires intent to cause serious physical injury. The court reasoned that it is impossible to intend to kill someone without simultaneously intending to cause serious physical injury. Therefore, first-degree manslaughter is a lesser included offense of second-degree murder. As stated in Brown v. Ohio, “the lesser offense…requires no proof beyond that which is required for conviction of the greater.”

    Because Suarez was acquitted of intentional murder, and first-degree manslaughter is the same offense as second-degree murder under Blockburger, the Double Jeopardy Clauses of both the Federal and State Constitutions barred his subsequent indictment and prosecution for first-degree manslaughter. The court clarified that unpreserved statutory double jeopardy claims are not reviewable.

  • People v. Gonzalez, 99 N.Y.2d 76 (2002): Double Jeopardy and Multiple Punishments for a Single Act

    99 N.Y.2d 76 (2002)

    A double jeopardy claim based on multiple punishments for a single act requires preservation for appellate review; the permissibility of multiple punishments arising from a single act is a question of statutory interpretation dependent on legislative intent.

    Summary

    Defendants Gonzalez and Lopez were convicted of drug sale offenses based on single transactions, leading to concurrent sentences. They argued that these convictions violated double jeopardy protections against multiple punishments for the same offense. The New York Court of Appeals held that such double jeopardy claims require preservation at trial because they turn on statutory interpretation and legislative intent, unlike claims of successive prosecutions which implicate the court’s jurisdiction. Since neither defendant preserved their claim, the court declined to review it. The court affirmed Gonzalez’s conviction and Lopez’s conviction (though Smith, J., dissented on evidentiary grounds in Lopez’s case).

    Facts

    In People v. Gonzalez, an undercover officer asked Gonzalez where to buy drugs. Gonzalez directed the officer to another individual, Sepulveda, near a school. Sepulveda sold heroin to the officer. Gonzalez was arrested, but no drugs were found on him.

    In People v. Lopez, an undercover officer asked Lopez for heroin. Lopez directed the officer to Rennock, who sold the heroin inside a nearby building 420 feet from a school. Lopez was arrested 20 minutes later, but no drugs or buy money were recovered from him.

    Procedural History

    Gonzalez was convicted of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds. The Appellate Division affirmed.

    Lopez was convicted of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third degree. The Appellate Division modified by vacating one possession conviction and affirmed.

    Issue(s)

    Whether a defendant’s claim that convictions for multiple offenses arising from a single act violate double jeopardy by resulting in multiple punishments, requires preservation for appellate review.

    Holding

    No, because a double jeopardy claim alleging multiple punishments arising from a single act implicates a question of statutory interpretation and legislative intent, which must be preserved for appellate review.

    Court’s Reasoning

    The Court of Appeals distinguished between double jeopardy claims involving successive prosecutions (which affect the court’s jurisdiction and need not be preserved) and those involving multiple punishments for a single act. The Court reasoned that the latter type of claim turns on whether the legislature intended to authorize multiple punishments, a matter of statutory interpretation. Quoting Missouri v. Hunter, the court stated, “As long as the Legislature intended to impose cumulative punishments for a single offense, `a court’s task of statutory construction is at an end’ and no constitutional double jeopardy claim is implicated.” The Court emphasized that a determination of legislative intent requires a defendant to preserve the issue for appeal. Since neither Gonzalez nor Lopez raised their double jeopardy claims at trial, the Court declined to address them.

    Judge Smith concurred in Gonzalez’s case but dissented in Lopez’s. Smith argued that all double jeopardy claims, including those related to multiple punishments, are fundamental and do not require preservation. Smith would have reached the merits of the double jeopardy claims, ultimately rejecting them based on the legislature’s intent to permit convictions for both offenses. However, Smith dissented in Lopez’s case because the introduction of expert testimony was unnecessary and prejudicial.

  • People v. Yates, 98 N.Y.2d 462 (2002): Mandatory “Acquit-First” Jury Instruction in New York Criminal Cases

    People v. Yates, 98 N.Y.2d 462 (2002)

    In New York, when a court submits multiple offenses in the alternative to a jury, it must instruct the jury to acquit the defendant of the greater offense before considering any lesser-included offense; failure to provide this “acquit-first” instruction constitutes reversible error, barring retrial on the greater offense due to double jeopardy principles.

    Summary

    Defendant was indicted for second-degree murder and first-degree manslaughter for the strangulation death of his girlfriend. At trial, the judge also submitted second-degree manslaughter and criminally negligent homicide as lesser included offenses, but refused the prosecution’s request for an “acquit-first” instruction as mandated by People v. Boettcher. The jury convicted Defendant of criminally negligent homicide, implying acquittal on the higher charges. The People sought retrial on the manslaughter charge, arguing the jury instructions violated Boettcher. The Court of Appeals affirmed the Appellate Division’s decision that the trial court’s failure to provide the “acquit-first” instruction barred retrial on the manslaughter charge, emphasizing the mandatory nature of the Boettcher rule.

    Facts

    Defendant was indicted for the strangulation death of his girlfriend. Initially, he denied involvement, but later admitted to choking her, claiming it was an accident while he was drunk and trying to quiet her. At trial, the prosecution argued that Defendant intentionally caused serious injury and showed depraved indifference to her life. The defense maintained it was accidental.

    Procedural History

    The trial court submitted second-degree murder, first-degree manslaughter, second-degree manslaughter, and criminally negligent homicide to the jury. The prosecution requested a Boettcher “acquit-first” instruction, which the trial court denied. After the jury convicted Defendant of criminally negligent homicide, the People moved for retrial on the manslaughter charge, which was denied. The Appellate Division dismissed the People’s Article 78 proceeding but stated the trial court erred in refusing the Boettcher instruction. On direct appeal, the Appellate Division affirmed the dismissal, holding that double jeopardy barred retrial. The Court of Appeals affirmed.

    Issue(s)

    1. Whether the trial court erred in refusing to instruct the jury in accordance with the “acquit-first” format as required by People v. Boettcher when submitting multiple offenses in the alternative.

    2. Whether a conviction for criminally negligent homicide bars retrial on a greater charge of first-degree manslaughter when the “acquit-first” instruction was not given.

    Holding

    1. Yes, because the Boettcher “acquit-first” instruction is mandatory under New York law when submitting multiple offenses in the alternative.

    2. Yes, because under CPL 300.50(4), a conviction on a lesser-included offense is deemed an acquittal of every greater offense submitted, barring retrial on the greater offense due to double jeopardy principles.

    Court’s Reasoning

    The Court of Appeals emphasized the mandatory nature of the “acquit-first” instruction established in People v. Boettcher. The court explained that CPL 300.50(4) deems a conviction on a lesser-included offense as an acquittal on the greater offense. Therefore, the trial court’s failure to provide the Boettcher instruction had significant consequences, preventing a retrial on the first-degree manslaughter charge. The court rejected the argument that criminally negligent homicide was not a lesser-included offense of first-degree manslaughter, citing precedent. The Court stated, “[w]henever the court submits two or more offenses in the alternative pursuant to this section, it must instruct the jury that it may render a verdict of guilty with respect to any one of such offenses, depending upon its findings of fact, but that it may not render a verdict of guilty with respect to more than one. A verdict of guilty of any such offense is not deemed an acquittal of any lesser offense submitted, but is deemed an acquittal of every greater offense submitted.” The court declined to overrule prior case law to cure the trial court’s error, indicating that the failure to follow established precedent had resulted in a non-remediable situation. The decision underscores the importance of strictly adhering to the Boettcher rule to avoid jeopardizing the prosecution’s ability to retry a defendant on more serious charges.

  • People v. Fuller, 96 N.Y.2d 881 (2001): Double Jeopardy and Lesser Included Offenses

    People v. Fuller, 96 N.Y.2d 881 (2001)

    A guilty verdict on a lesser included offense operates as an acquittal on a greater offense for double jeopardy purposes, even if the jury deadlocked on the greater offense, barring retrial on the greater offense.

    Summary

    Defendant was charged with robbery and assault. The jury acquitted him on the robbery charges, convicted him of third-degree assault as a lesser included offense, but deadlocked on second-degree assault. He was then retried and convicted of second-degree assault. The New York Court of Appeals reversed the second-degree assault conviction, holding that the initial guilty verdict on the lesser included offense of third-degree assault acted as an acquittal on the greater offense of second-degree assault, thus barring retrial under double jeopardy principles, notwithstanding the jury’s initial inability to reach a verdict on the greater charge.

    Facts

    The defendant was charged with attacking his girlfriend and indicted on charges including first-degree robbery, second-degree robbery, second-degree assault with a dangerous instrument, and second-degree assault with intent to cause serious physical injury.

    Procedural History

    At trial, the judge found insufficient evidence of serious physical injury for the second-degree assault charge (intent to cause serious physical injury) and submitted a lesser included charge of third-degree assault. The jury acquitted on both robbery counts, found the defendant guilty of third-degree assault, and deadlocked on second-degree assault (assault with a dangerous instrument). The defendant was then retried and convicted of second-degree assault, which the Appellate Division affirmed. The Court of Appeals reversed.

    Issue(s)

    1. Whether a guilty verdict on a lesser included offense operates as an acquittal on a greater offense when the jury deadlocks on the greater offense, thereby precluding retrial on the greater offense under double jeopardy principles.

    Holding

    1. Yes, because under CPL 300.40(3)(b) and 300.50(4), a guilty verdict on a lesser included offense is deemed an acquittal on every greater count submitted. Once acquitted, the defendant cannot “waive” double jeopardy protections.

    Court’s Reasoning

    The Court of Appeals relied on CPL 300.40 (3)(b), which states that regarding inclusory concurrent counts, a guilty verdict on a lesser count is deemed an acquittal on every greater count submitted. The court emphasized that the trial court instructed the jury that count four (submitted as third degree assault) was a lesser included offense of count three (second degree assault). The court stated, “By operation of law, defendant was deemed acquitted of second degree assault when the jury failed to reach a verdict as to that count, but found him guilty of the lesser included offense of third degree assault.” The Court further reasoned that once acquitted, the defendant could not waive the protections against multiple prosecutions. The court cited People v. Boettcher, referencing Green v. United States, stating settled principles of double jeopardy prohibit retrial after an acquittal. The Court explicitly disapproved of Matter of Morgenthau v Beal, which held otherwise.

  • People v. Gonzalez, 96 N.Y.2d 195 (2001): Retrial on Lesser Included Offense After Mistrial

    People v. Gonzalez, 96 N.Y.2d 195 (2001)

    When a jury acquits a defendant of a greater offense but fails to reach a verdict on a lesser-included offense, the defendant can be retried on the lesser-included offense using the original accusatory instrument, provided the retrial is limited to the lesser charge and the jury (if any) is not informed of the original, greater charge.

    Summary

    Gonzalez was charged with driving while intoxicated (DWI). At trial, the jury acquitted him of DWI but couldn’t agree on the lesser charge of driving while impaired (DWAI), resulting in a mistrial on that charge. The prosecution sought to retry him for DWAI using the original accusatory instrument. Gonzalez argued double jeopardy and that the original instrument was invalid. The court rejected these arguments, convicted him of DWAI, and the Appellate Term reversed. The New York Court of Appeals reversed the Appellate Term, holding that retrial on the original accusatory instrument was permissible because the Vehicle and Traffic Law and Criminal Procedure Law authorized it, and there was no double jeopardy concern since the retrial was limited to the DWAI charge.

    Facts

    Gonzalez was arrested and charged with DWI. At his first trial, the jury was also charged on the lesser-included offense of DWAI. The jury acquitted Gonzalez of DWI but could not reach a verdict on the DWAI charge, leading to a mistrial on that count.

    Procedural History

    The People sought to retry Gonzalez on the DWAI charge using the original information. The trial court denied Gonzalez’s double jeopardy claim and ruled the retrial would proceed on the original accusatory instrument. After a bench trial on the DWAI charge only, Gonzalez was convicted. The Appellate Term reversed, holding that a new accusatory instrument was required. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a new accusatory instrument is necessary to commence a retrial on a lesser-included charge (DWAI) after the jury in the first trial acquitted the defendant of the greater offense (DWI) but failed to reach a verdict on the lesser-included offense.

    Holding

    No, because both the Vehicle and Traffic Law and the Criminal Procedure Law provide statutory authority for the retrial on the original accusatory instrument, and there was no double jeopardy concern since the retrial was limited to the DWAI charge.

    Court’s Reasoning

    The Court reasoned that Vehicle and Traffic Law § 1192(9) permits a conviction for DWAI even if the accusatory instrument charges only DWI. Also, Criminal Procedure Law § 310.70(2) authorizes a retrial on any count submitted to the jury at the first trial for which the jury failed to reach a verdict. The Court distinguished this case from People v. Mayo, 48 N.Y.2d 245, where the defendant was retried on the original indictment that included the greater offense of which he was effectively acquitted. In this case, Gonzalez was only retried on the lesser charge. The court emphasized that “the People here did not seek to retry defendant on the count (driving while intoxicated) of which he was acquitted at the first trial. Rather, the only count at issue in the retrial was the lesser driving while impaired charge for which the jury had failed to reach a verdict. At no point during the retrial was defendant in jeopardy of conviction of the greater offense.” The court also noted the distinction between felony and misdemeanor charges, highlighting that felony charges require a Grand Jury indictment, a concern not present in misdemeanor cases. Finally, the court cautioned that in retrials on lesser-included offenses using the original instrument, the jury should not be informed of the original, greater charge to avoid prejudice.

  • People v. Wood, 95 N.Y.2d 509 (2000): Double Jeopardy in Successive Contempt Prosecutions

    People v. Wood, 95 N.Y.2d 509 (2000)

    A criminal prosecution for first-degree criminal contempt is barred by double jeopardy when the defendant was previously prosecuted for contempt in Family Court based on the same underlying conduct of violating an order of protection.

    Summary

    Timothy Wood’s ex-wife obtained two orders of protection: one from City Court and another from Family Court, both ordering him to have no contact with her. Wood made a series of prank phone calls to his ex-wife, which were traced to his residence. He was then held in contempt in Family Court for violating the Family Court order and sentenced to incarceration. Subsequently, he was indicted on criminal contempt charges for violating the City Court order based on the same phone calls. The New York Court of Appeals held that the subsequent criminal prosecution was barred by the Double Jeopardy Clause because the Family Court contempt proceeding and the criminal contempt charges were based on the same conduct.

    Facts

    Timothy Wood’s ex-wife obtained two “no contact” orders of protection against him. One was issued by Rochester City Court, and the other was issued by Monroe County Family Court. On December 25, 1996, Wood’s ex-wife received eleven prank phone calls, which were traced to Wood’s residence. The ex-wife then initiated a contempt proceeding in Family Court. The criminal charges stemmed from the same phone calls that formed the basis of the Family Court action.

    Procedural History

    The Family Court found Wood guilty of willfully violating the Family Court order of protection and sentenced him to six months incarceration. Subsequently, Wood was indicted on multiple counts of criminal contempt and aggravated harassment based on the same phone calls that led to the Family Court contempt finding. The Supreme Court denied Wood’s motion to dismiss the indictment on double jeopardy grounds. Wood was convicted after a jury trial. The Appellate Division reversed the criminal contempt convictions, holding that the Double Jeopardy Clause barred the criminal prosecution. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether a criminal prosecution for first-degree criminal contempt is barred by the Double Jeopardy Clause when the defendant has already been prosecuted for contempt in Family Court based on the same conduct of violating an order of protection.

    Holding

    Yes, because the contempt provision of the Family Court Act is a lesser included offense of criminal contempt in the first degree, and the Double Jeopardy Clause bars successive prosecution and cumulative punishment for a greater offense after conviction for a lesser included offense.

    Court’s Reasoning

    The Court of Appeals applied the Blockburger test, which asks whether each offense requires proof of an element that the other does not. If each offense contains an element the other does not, they are not the “same offense” for double jeopardy purposes. The court found that the Family Court contempt provision did not contain an element different from Penal Law § 215.51(c) and that the statutory elements of the Family Court provision were subsumed by those of Penal Law § 215.51(c). Because the same acts violated both orders, Wood could not be guilty of first-degree criminal contempt for violating the City Court order without also being guilty of contempt for violating the Family Court order. The court emphasized that the Family Court contempt provision is a lesser included offense of criminal contempt in the first degree. The court stated, “Comparing the elements, we conclude that the contempt provision of the Family Court Act article 8 is clearly a lesser included offense of criminal contempt in the first degree. That the People sought to prove a violation of a City Court order and not a Family Court order does not, under these circumstances, alter the double jeopardy analysis under Blockburger.” The court further reasoned that allowing the People to circumvent the double jeopardy bar by prosecuting a criminal action for violation of another court order based on the same conduct would eviscerate the constitutional prohibition. The court recognized that although the Legislature allows parallel court proceedings in different venues in domestic violence cases, the orders of protection in this case had the same purpose.