15 N.Y.2d 240 | NY | 1965
Lead Opinion
This is an appeal by permission of the Appellate Division, First Department, from a unanimous order of that court granted in an article 78 proceeding prohibiting respondents-appellants from trying the petitioner on an indictment charging him with vehicular homicide on the ground that such a trial would subject him to double jeopardy (Matter of Martinis v. Supreme Ct. of State of N. Y., 20 A D 2d 79).
By way of background, it appears that on the evening of May 19, 1963, while petitioner Martinis was operating his automobile on the Henry Hudson Parkway, a public highway in the County of Bronx, he collided with another automobile in which five people were riding and all of whom were killed; the death car was thrown against a third automobile and its driver sustained severe personal injuries. Martinis was arrested. Am information was thereafter filed containing four counts charging Martinis with violation of the Vehicle and Traffic Law (1) driving while in an intoxicated condition (Vehicle and Traffic Law, § 1192); (2) reckless driving (Vehicle and Traffic Law, § 1190); (3) leaving the scene of an accident without reporting damage to property, and (4) without reporting injury to a person (Vehicle and Traffic Law, § 600). A prompt trial was sought and had in the Criminal Court of the City of New York before a panel of three Judges who found defendant “ not guilty ” (July 1, 1963) and dismissed the information.
Thereafter, on August 2, 1963, the G-rand Jury of Bronx County returned an indictment (No. 1005-63) charging Martinis with violation of section 1053-a of the Penal Law in five counts separately based on the death of each of the five people killed . in the accident of May 19 and one count of assault in the third degree, based on the injury to the driver of the third car (Penal Law, § 244). In granting the within writ of prohibition, the court below accepted the petitioner’s contention that in order
We discern no such danger. There is a distinct and separable operative difference in the definition of “ reckless driving ”, as used in section 1190 of the Vehicle and Traffic Law and section' 1053-a of the Penal Law. The purpose of the one is to regulate and control the use and operation of vehicles on the public highway (Vehicle and Traffic Law, § 300). It defines a variety of acts or omissions either as “ infractions ” or misdemeanors, which were unknown to the common law and are not presently included in the Penal Law. The Vehicle and Traffic Law has its roots deeply embedded in our legislative history. The present statute entitled “ Vehicle and Traffic Law ” was enacted as chapters 775 and 776 of the Laws of 1959, effective October 1, 1960. Section 1190 of the Vehicle and Traffic Law prohibits “ reckless driving ” which, under the definition enunciated, may be committed by the driving or use of a motor vehicle in either of two ways: in a manner which (1) “ unreasonably interferes with the free and proper use of the public highway ” or (2) “ unreasonably endangers users of the public highway In contrast to the violaion of the rules and regulations controlling the use of the highways, the killing of a human being at common law and now by statute has always been regarded and treated as serious crime. Section 1053-a of the Penal Law is a homicide statute. It provides that a person is guilty of criminal negligence “ who operates or drives any vehicle of any kind in a reckless or culpably negligent manner, whereby a
The Legislature was also justified in drawing the distinction it did between driving in a manner that unreasonably “ interferes ” or “ endangers ” as a reasonable exercise of the police power in the interests of public safety (Vehicle and Traffic Law, § 1190) and the manner of driving whereby a human being is killed as a crime (Penal Law, § 1053-a). In the enactment of those sections, the Legislature was careful to classify each under appropriate chapter headings and to employ language that would fully inform an accused of the nature and quality of the offense charged. A defendant charged with a traffic offense in an inferior local court of limited jurisdiction thus rests secure in the fact that he can only be prosecuted for a misdemeanor. He knows too that when charged with homicide (Penal Law, § 1053-a) he is being accused of serious crime, a felony, which can be prosecuted only in a court of general criminal jurisdiction. Notwithstanding these clear and explicit enactments, the Legislature, in an abundance of caution, and as a part of its major reorganization of the Vehicle and Traffic Law (L. 1959,
While we apply State law in a given case, it is always interesting to note what the courts of our sister States and the Federal courts do in like situations. Where, as here, there has been a prosecution in an inferior court on a minor traffic count, the courts of New Jersey hold that such prosecution, whatever the result, does not preclude subsequent prosecution for the more serious crime of homicide arising out of the same event, since, as they said, “ reckless driving ” and “ death by reckless driving ” are not the same offense (State v. Shoopman, 11 N. J. 333).
In California, which has a statute similar to section 1938 of the Penal Law, it has been held that prior prosecution for reckless driving has no relationship to a subsequent indictment for homicide. ‘ ‘ They are not the same offenses nor is one, to use the language of ,the Penal Code, 1 necessarily included within the other ’. One provides' for a minor misdemeanor punishment for the violation of section 121 of an act regulating, the use
Section 1938 of the Penal Law may not be read as extending double jeopardy protection in situations such as this, since it relates to punishment rather than prosecution (People v. Di Lapo, supra; People ex rel. Maurer v. Jackson, 2 N Y 2d 259). If there was ever any conflict of meaning as to double jeopardy “ for the same offense ”, as used in the Constitution, and the “ same act or omission ”, as used in the statute (§ 1938) — and I think there is none — it has been laid to rest by subdivision (d) of section 1800. Under familiar rules of statutory construction, subdivision (d) of section 1800, as a subsequently enacted statute for a special purpose, must be deemed to take precedence over section 1938 which is general in scope and application (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 397, and cases cited). So viewed, subdivision (d) of section 1800 operates to harmonize section 1938 with rather than to extend the concept of “ twice put in jeopardy for the same offense ”, as envisioned by the framers of the Constitution and as enunciated by the Supreme Court. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense (see Gavieres v. United States, supra).
The charges against this defendant in the City Criminal Court for the misdemeanor violation of the indicated Vehicle and Traffic Law section and those charges for violation of the Penal Law embodied in the indictment triable only in the Supreme Court, Criminal Division, although arising out of the same transaction, are nonetheless clearly independent and unrelated violations of different statutes for which a conviction can be had only on proof involving different elements and triable only in courts possessing appropriate jurisdiction. The situation thus created falls within the purview of the statutory scheme for dealing separately with violations covered by the Vehicle and Traffic Law and those governed by the Penal Law.
Absent any statutory or decisional law supporting petitioner’s claim of double jeopardy, he may not find a substitute by invoking principles of collateral estoppel. Nor may any analogy to principles of “ res judicata ” in a civil suit be applied here.
The United States Supreme Court dealt with a claim of double jeopardy and collateral estoppel (or criminal “ res judicata ”) arising from a State prosecution in Hoag v. New Jersey (356 U. S. 464). Hoag had been arrested as the perpetrator of a holdup of a bar in which five different individuals were robbed. He was indicted with reference to the robbery of three of the five victims and, following trial, was acquitted. Subsequently, the State of New Jersey indicted and proceeded to try Hoag with reference to the robbery of one of the other victims. He interposed a plea of double jeopardy as a defense and also that the State was estopped since the issue of his presence at the scene of the crime had already been litigated and decided in his favor. The United States Supreme Court rejected these, claims and affirmed his conviction. It held that the charge on which he was tried and convicted, while relating to the earlier charge on which he was acquitted, involved the independent element of establishing a larceny from the new victim; that each case had an independent element and the State was entitled to its day in court on each charge. So it is here. The proof of the indictment which is now sought to be prohibited requires an independent, separate and distinct element: the killing of a person in five separate counts in violation of section 1053-a of the Penal
Prohibition is an extraordinary remedy which may not be used except in clear-cut situations. The burden rests with the petitioner to establish that he has been “ twice put in jeopardy for the same offense” (People v. Silverman, 281 N. Y. 457). This petitioner has not met his burden in this proceeding.
The order appealed from should be reversed and the petition dismissed.
Concurrence Opinion
(concurring for reversal solely on the ground that on this record the petitioner has not shown the situation to be one of “ extreme necessity ”). Since prohibition is an extreme remedy reserved to those situations where a public official is to be restrained from the performance of an act which is clearly and unquestionably beyond his jurisdiction (Matter of Lyons v. Goldstein, 290 N. Y. 19, 22; Matter of Baltimore Mail S. S. Co. v. Fawcett, 269 N. Y. 379), the only basis for the restraint here would be that the trial of the indictment laid pursuant to section 1053-a of the Penal Law would conclusively and without doubt place petitioner in double jeopardy with reference to that crime because he had been prosecuted and acquitted on charges of violating section 1190 of the Vehicle and Traffic Law and other sectidns of the Vehicle and Traffic Law. This record does not support such a contention. The information and the indictment use only the language of the respective statutes. There are cases which recognize that it is possible to convict a defendant of a violation of section 1053-a of the Penal Law without the necessity of proving the crime defined in section 1190 of the Vehicle and Traffic Law. (People v. Decina, 2 N Y 2d 133; People v. Eckert, 2 N Y 2d 126.) Therefore, the extraordinary remedy of prohibition is not available to defendant. This is not to say, however, that the defendant is deprived of the defenses of double jeopardy and collateral estoppel. If it appears on the trial that the People in showing culpable negligence rely on proof of the same inseparable acts the People attempted to establish in the prosecution under the Vehicle and Traffic Law, it would be clear at that time that1 jeopardy had attached. (See People ex rel. Maurer v. Jackson, 2 N Y 2d 259, 264.) The test is whether the defendant has corikaitted inseparable acts made punishable by more than one statute or whether he had com
The problem is to be resolved on the basis of the defendant’s “ acts ”, not by any test based upon difference in proof necessary to convict under the statutory definition of each of the crimes arising out of the defendant’s conduct. Proof of a death is not proof of such a separate or distinct act or different kind of conduct. Criminal liability arises in connection with a death only when culpable negligence is proven beyond a reasonable doubt. Hence if it appears that the acts which wore alleged to violate section 1190 of the Vehicle and Traffic Law or the other sections of the Vehicle and Traffic Law are the same acts upon which the People’s case for culpable negligence rests at the trial of this indictment ‘ ‘ in view of the fundamental character of the rule that a man shall not be twice vexed for the same cause and the deep roots it throws into the history of the criminal law ” (People v. Lo Cicero, 14 N Y 2d 374, 378), the indictment must then fall. The considerations underlying this State’s policy of immunity on the ground of double jeopardy long antedate the decisions of the sister States referred to by the People and have never been repudiated in a case where there has been an acquittal.
Dissenting Opinion
As the Appellate Division held — and we agree with its opinion — to permit the petitioner to be tried for the vehicular homicide charged against him (Penal Law, § 1053-a), after he has been acquitted of reckless driving (Vehicle and Traffic Law, § 1190), would constitute double jeopardy under both our Federal and State Constitutions (U. S. Const., 5th Amdt.; N. Y. Const., art. I, § 6) since such reckless driving is an essential element of the homicide.
The circumstance that one who is convicted of reckless driving— in violation of section 1190 of the Vehicle and Traffic Law — may later, if death resulted from the reckless driving, be prosecuted for and convicted of vehicular homicide (Vehicle and Traffic Law, § 1800, subd. [d]) is, in our view, completely beside the point. Obviously, a person may be convicted of one crime and later of another crime if conviction of the latter requires proof of other and different elements or acts. However, where, as in the present case, the defendant was found not guilty of a
The order appealed from should be affirmed.
Opinion by Judge Dye in which Chief Judge Desmond and Judge Bergan concur, Judge Burke concurring for reversal in a separate opinion; Judge Fuld dissents and votes to affirm in an opinion in which Judges Van Voorhis and Scileppi concur, Judge Van Voorhis concurring for affirmance in the following memorandum in which Judge Scileppi concurs: The doctrine of collateral estoppel under New York State law is comprehended in the double jeopardy rule (People v. Lo Cicero, 14 N Y 2d 374). Therefore, petitioner cannot be tried on a vehicular homicide charge without being subject to double jeopardy, inasmuch as the fact of driving in a reckless or culpably negligent manner, which is essential to the vehicular homicide charge, has been resolved in his favor by his acquittal of reckless driving.
Order reversed, etc.