People v. Lo Cicero , 230 N.Y.S.2d 384 ( 1962 )

Christ, J. (dissenting).

I concur for reversal and denial of defendant’s motion to dismiss the indictment as to him, insofar as the kidnapping count is concerned; but I dissent and vote to aErm the dismissal of the other counts of the indictment upon which the defendant was tried and acquitted in the United States District Court.

It is true that no constitutional prohibition exists against the State of New York indicting and trying one for the very same acts or offenses upon which the Federal courts or the courts of another State found him not guilty (Bartkus v. Illinois, 359 U. S. 121; Abbate v. United States, 359 U. S. 187). Nevertheless, New York has chosen to grant immunity by statute (Code Crim. Pro., § 139; Penal Law, § 33). These two sections, when read together, show an intention to abide by the basic tenet in American jurisprudence that a man should not be tried twice for the same offense (U. S. Const., 5th Amdt.; N. Y. Const., art. I, § 6).

It requires a very narrow construction of the statutes to sustain the first three counts of the indictment. It is conceded that, if an acquittal or conviction is had in a sister State, or in a foreign country, the defendant has immunity from retrial in New York. However, it is argued that, if the acquittal or conviction is had in our own Federal court system, no effect shall be given to this by our New York State courts and the defendant may be tried again for the very acts and offenses involved in the Federal prosecution, upon the ground that the sovereignty of our State has been offended. No difference in reason is pointed out as to why a trial in a foreign country or a sister State should be given greater effect, as to double jeopardy, than one in a United States court.

It is said that the word “ another ” in these statutes, modifies . the word ‘ ‘ country. ’ ’ I agree that it may be read in this narrow context, but to do so does violence to the reason and intent of the statutes. A sensible instead of a literal interpretation of the Criminal Code and Penal Law provisions would avoid giving greater force and validity to a judgment of a foreign country than to a judgment of a Federal court of our own country. And even more important, such an interpretation would avoid the unseemly spectacle of violating our basic policy of not trying a man twice for the same crime.

In certain narcotics cases the State has employed clearer verbiage in barring prosecution of an offender if he has been acquitted or convicted in a Federal prosecution (Public Health Law, § 3354, subd. 3, formerly § 445; see People ex rel. Liss v. Superintendent of Women’s Prison, 282 N. Y. 115). Although the verbiage in the statutes we are presently construing is not as unmistakable as that in the Public Health Law, we should, in the absense of sharp meaning to the contrary, presume that in these statutes, no less than in the Public Health Law, the Legislature was honoring the traditional aversion to double jeopardy found in our system of government. Should we read the Criminal Code and Penal Law sections as the majority does, not only may a person who has been acquitted in the Federal court be tried again by the State, but so may a person who was convicted and sentenced in the Federal court be tried, convicted and sentenced again in the State court for the same acts. I read no such intention in the statutes.

People v. Mangano (269 App. Div. 954, affd. 296 N. Y. 1011); People v. Eklof (179 Misc. 536); People v. Parker (175 Misc. 776) and People v. Spitzer (148 Misc. 97), determined adversely to the People the very question here under consideration. Further, the Supreme Court of the United States has expressly interpreted the holdings of the Liss, Mangano, Eklof, Parker and Spitser cases (supra) as being adverse to the People (Bartkus v. Illinois, 359 U. S. 121, 138, supra). In Bartkus, those cases are cited in a footnote at the end of the following portion of the majority opinion (p. 138): “ The entire history of litigation and contention over the question of the imposition of a bar to a second prosecution by a government other than the one first prosecuting is a manifestation of the evolutionary unfolding of law. Today, a number of States have statutes which bar a second prosecution if the defendant has been once tried by another government for a similar offense. A study of the cases under the New York statute, which is typical of these laws, demonstrates that the task of determining when the federal and state statutes are so much alike that a prosecution under the former bars a prosecution under the latter is a difficult one.”

The order under review should be modified so as to limit the dismissal to the counts other than the one for kidnapping, and, as so modified, it should be affirmed.

Ughetta and Hill, JJ., concur with Beldóck, P. J.; Chbist, J., dissents in opinion in which Kleineeld, J., concurs.

Order, insofar as appealed from, reversed on the law; defendant’s motion to dismiss the indictment as to him denied; and indictment reinstated as to him. The findings of fact below are affirmed.