Meldish v. BraatzMeldish v. Braatz
OPINION OF THE COURT
Pursuаnt to Putnam County indictment No. 92/1982, petitioner and four codefendants were charged jointly with the crime of assault in the second degree committed in the following manner: “The defendants, in the Town of Putnam Valley, County of Putnam and State of New York, on or about the 24th day of October, 1982, acting in concert and each aiding and abetting the othеr, with intent to cause serious physical injury to another person, to wit, John Joseph Mazzei, did cause such injury to John Joseph Mazzei by striking him around the head and body.” Concomitantly, and as a result of the same Grand Jury presentation, the petitioner was separately indicted under Put
count no. 1
“The defendant, in the Town of Putnam Valley, County of Putnam and State of New York, on or about the 24th day of October, 1982, with intent to cause serious physical injury to another person, to wit, John Joseph Mazzei, did cause such injury to John Joseph Mazzei by means of а deadly weapon or dangerous instrument, to wit, a shotgun.”
count no. 2
“The defendant in the Town of Putnam Valley, County of Putnam and State of New York, on or about the 24th day of October, 1982 * * * under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of death to other persons, to wit, the defendant did fire a shotgun in the direction of Diane Janeck, Richard Stumbo and John Joseph Mazzei.”
Although it is clear from the bill of particulars served by the Peoplе that the incident giving rise to both indictments occurred at approximately the same time and place (i.e., “at approximately 6:45 P.M. at Perry’s Farm * * * in the vicinity of a barn located thereon”), the theory of the prosecution as revealed elsewhere in its bill of particulars and in the Grand Jury minutes is that the group assault underlying indictment No. 92/1982 was perpetrated in a corral adjacent to the Perry barn, while the acts underlying indictment No. 88/1982 were perpetrated subsequently inside the barn by the petitioner alone.
In October of 1983, the petitioner and his four codefendants were placed on trial under indictment No. 92/1982, and following a motion made at the close of the People’s case were successful in obtaining a trial order of dismissal (CPL 290.10, subd 1) dismissing its only count on the ground that there was a “total failure [of proof] to show [that] the parties were aiding and abetting eaсh other and acting in concert” in committing the alleged assault. No appeal from this order could be taken by the People (see People v Brown,
In our view, the petition must be granted to the extent of barring the petitioner’s prosecution under the first count of the pending indictment, but otherwise denied.
That prohibition will lie to bar a prosеcution which is about to proceed in violation of the statutory preclusion against double jeopardy set forth in CPL 40.20 (subd 2) is no longer open to serious question (see Matter of Abraham v Justices of N. Y. Supreme Ct.,
With this dеfinition in mind and from our review of the record (which includes, inter alia, a copy of the Grand Jury minutes), we have reached the conclusion that the charges sub judice and the charge еmbodied in the dismissed indictment (No. 92/1982) are, in fact, based upon a lone “criminal transaction”. It clearly appears that the events giving rise to both indictments had their origin in аn
Although the foregoing scenario compels the conclusion that the events underlying both indictments were sufficiently related in time and circumstance to constitute integral parts of “a single criminal incident” (CPL 40.10, subd 2, par [a]), our inquiry is not ended, as the opеrative statute (CPL 40.20, subd 2) pertinently provides that “[a] person may not be separately prosecuted for two offenses based upon the same act or criminаl transaction unless: (a) [t]he offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other” (emphasis supplied). In this regard, we have reached the conclusion that the substantive crime charged in the sole count of the dismissed indictment (assault in the second degree) is sufficiently dissimilar from that charged in the second count of the pending indictment to fall within the first half of the cited exception, as there exists no definitional similarity between the crimes of assault in the second degree committed pursuant to subdivision 1 of section 120.05 of the Penal Law and reckless endangerment in the first degree (Penal Law, § 120.25). Thus, the Penal Law provides, inter alia, that a person is guilty of assault in the second degree when, “[w]ith [the] intent to cause serious physical injury to another pеrson, he causes such injury to such person or to a third person” (Penal Law, § 120.05, subd 1), while it further provides that a person is
Accordingly, while none of the statutory exceptions set forth in CPL 40.20 (subd 2) may be deemed applicable to the first count of the pending indictment (аssault in the first degree), and the petitioner’s continued prosecution thereon is therefore precluded, there exists no impediment to his continued proseсution on the remaining count of indictment No. 88/1982, i.e., reckless endangerment in the first degree. For this reason, the petition is granted only to the extent that he may not be prоsecuted on the first count of the indictment.
Mollen, P. J., Mangano, Weinstein, Brown and Rubin, JJ., concur.
Petition granted, on the law, without costs or disbursements, to the extent that the petitioner may not be prosecuted on the first count of indictment No. 88/1982; proceeding otherwise dismissed on the merits. The stay granted by this court on January 9, 1984 is vacated.