double jeopardy clause in New York

2009Defendant argues resentencing at this juncture would be violative of the Double Jeopardy Clause which “protects against multiple punishments for the same offense.” (North Carolina v Pearce, 395 US 711, 717 [1969].) However, sentences are not af forded the same constitutional finality that attaches to an acquittal (id.), and a double jeopardy claim “would be colorable only if the defendant’s sentence had been increased beyond his legitimate expectations of what the final sentence should be.” (People v Williams, 87 NY2d 1014, 1015 [1996].) Defendant states that when he was paroled in 2005 he had

2008In keeping with these "underlying idea[s]," the United States Supreme Court has interpreted the Double Jeopardy Clause to bar the government from prosecuting a person for the same offense after an acquittal or a conviction; or from imposing multiple punishments for the same offense in successive proceedings ( North Carolina v Pearce, 395 US 711, 717 [1969], overruled in part on other grounds by Alabama v Smith, 490 US 794 [1989]).

2012Indeed, the double jeopardy doctrine specifically distinguishes between cases terminated in the defendant’s favor prior to any determination of guilt or innocence and those based on insufficient evidence (Burks v United States, 437 US 1, 14-18 [1978]; United States v Scott, 437 US 82, 94-99 [1978]).

1995Thus, we expressly recognized in Michael that "a double jeopardy objection may be waivable * * * in certain unusual cases, as where a defendant explicitly consents to retrial despite a double jeopardy defense” (id., at 7; see also, United States v Scott, 437 US 82, 93 [the Double Jeopardy Clause does not ordinarily bar a second trial when the defendant requests or consents to a mistrial]).

1997The applicable rule * * * to determine whether there are two offenses or only one, is whether each provision requires proof of a[n additional] fact which the other does not.” (Blockburger v United States, 284 US 299, 304 , citing Gavieres v United States, 220 US 338, 342 ; see also, Note, The Double Jeopardy Dilemma in Combating Domestic Violence: A Solution in United States v. Dixon, 33 J Fam L 911 [1995]; Fischel-Wolovick, Double Jeopardy and Domestic Violence Law, NYLJ, June 22, 1995, at 1, col 1.) "In both the multiple punishment and multiple prosecution contexts, [the Supreme Court] has c

1985Thus, the factors to be considered by the Bullington and Rumsey fact finders in imposing the penalty of death were not unlike those typical, additional elements of a crime which elevate it to a higher class of offense and in such cases the protections afforded by the double jeopardy clause must be provided (cf. Brown v Ohio, 432 US 161 ).

2011Thus, CPL 40.40 “prohibits a separate prosecution of joinable offenses that arise out of the same transaction and involve different and distinct elements ‘under circumstances wherein no violation of the double jeopardy principle can validly be maintained but the equities nevertheless seem to preclude separate prosecutions’ ” (People v Lindsly, 99 AD2d 99, 101-102 , quoting People v Dean, 56 AD2d 242, 246 , affd 45 NY2d 651 , rearg denied 46 NY2d 940 ).

2011Thus, CPL 40.40 “prohibits a separate prosecution of join-able offenses that arise out of the same transaction and involve different and distinct elements ‘under circumstances wherein no violation of the double jeopardy principle can validly be maintained but the equities nevertheless seem to preclude separate prosecutions’ ” (People v Lindsly, 99 AD2d 99, 101-102 [1984], quoting People v Dean, 56 AD2d 242, 246 [1977], affd 45 NY2d 651 [1978], rearg denied 46 NY2d 940 [1979]).

2026A. CPL 40.40 was a "legislative response to 'a problem that has proved highly perplexing to the United States Supreme Court and other tribunals' " whereby " 'repeated prosecutions for different and factually distinct offenses arising out of the same criminal transaction under circumstances wherein no violation of the double jeopardy principle [could] validly be maintained but the equities nevertheless seem to preclude separate prosecutions' " ( People v Ruzas , 54 AD2d 1083, 1083 [4th Dept 1976] [quoting Denzer, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A [1971 ed], CPL 40.40,

2026A. CPL 40.40 was a "legislative response to 'a problem that has proved highly perplexing to the United States Supreme Court and other tribunals' " whereby " 'repeated prosecutions for different and factually distinct offenses arising out of the same criminal transaction under circumstances wherein no violation of the double jeopardy principle [could] validly be maintained but the equities nevertheless seem to preclude separate prosecutions' " ( People v Ruzas , 54 AD2d 1083, 1083 [4th Dept 1976] [quoting Denzer, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A [1971 ed], CPL 40.40,

2011Thus, CPL 40.40 “prohibits a separate prosecution of joinable offenses that arise out of the same transaction and involve different and distinct elements ‘under circumstances wherein no violation of the double jeopardy principle can validly be maintained but the equities nevertheless seem to preclude separate prosecutions’ ” (People v Lindsly, 99 AD2d 99, 101-102 , quoting People v Dean, 56 AD2d 242, 246 , affd 45 NY2d 651 , rearg denied 46 NY2d 940 ).

2011Thus, CPL 40.40 “prohibits a separate prosecution of join-able offenses that arise out of the same transaction and involve different and distinct elements ‘under circumstances wherein no violation of the double jeopardy principle can validly be maintained but the equities nevertheless seem to preclude separate prosecutions’ ” (People v Lindsly, 99 AD2d 99, 101-102 [1984], quoting People v Dean, 56 AD2d 242, 246 [1977], affd 45 NY2d 651 [1978], rearg denied 46 NY2d 940 [1979]).

2009The applicable rule set out in Blockburger (at 304) is, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” In United States v Dixon (supra), the Supreme Court has restated the Blockburger test, as follows: “In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the ‘same

2000“The test for determining whether two offenses are the same within the meaning of the double jeopardy clause is whether two distinct statutory provisions each requires proof of a fact that the other does not” (People v Prescott, 66 NY2d 216, 221 , cert denied 475 US 1150 [citations omitted]; see, United States v Dixon, 509 US 688, 696 ; Blockburger v United States, 284 US 299, 304 ).

2006Indeed, the United States Supreme Court has noted that where the greater offense does not always entail proof of the alleged lesser offense, then the two offenses are not the “same” under the double jeopardy standard delineated in Blockburger v United States ( 284 US 299 [1932]) (see Illinois v Vitale, 447 US 410, 419 [1980]; cf. United States v Boylan, 620 F2d 359, 361 [1980] [no indication that predicate acts of a RICO offense were intended to be lesser included offenses barring state prosecution for those acts on the ground of double jeopardy]).

2000“The test for determining whether two offenses are the same within the meaning of the double jeopardy clause is whether two distinct statutory provisions each requires proof of a fact that the other does not” (People v Prescott, 66 NY2d 216, 221 , cert denied 475 US 1150 [citations omitted]; see, United States v Dixon, 509 US 688, 696 ; Blockburger v United States, 284 US 299, 304 ).

2018Stating that "the evil to which the double jeopardy clause is addressed occurs when a defendant is brought into court to defend against a criminal charge for the second time and is again subjected to the attendant expense, personal anxiety and social opprobrium," we determined that "[t]he effect of such a burden simply cannot be rectified by the defendant's subsequent exoneration" ( id. at 250 ).

2018Any less exacting standard would contravene the clear purpose of the double jeopardy clause, to deprive the State of the power to subject a citizen to the risk of trial after [the citizen] has been exonerated of the charges" ( Mayo , 48 NY2d at 252-253 ).

1988(Green v United States, 355 US 184, 187 [1957].) Indeed, New York statutory law presents a "generous version” of the double jeopardy defense.

1980The doctrine of double jeopardy has been in a state of constant re-examination during recent years by the United States Supreme Court (cf. Green v United States, 355 US 184 ; United States v Wilson, 420 US 332 ; United States v Jenkins, 420 US 358 ; Lee v United States, 432 US 23 ; United States v Scott, 437 US 82 ).

2008(People v Michael, 48 NY2d 1 [1979].) Respondent cites People v Allen ( 86 NY2d 599 [1995]) for the proposition that a double jeopardy claim can be waived.

2002As we stated in Michael , the “obvious jurisdictional overtones” attendant to a double jeopardy claim presented the Court with a question of law so fundamental that it rendered preservation of the issue unnecessary (see Michael, 48 NY2d at 7 ).

2000“The test for determining whether two offenses are the same within the meaning of the double jeopardy clause is whether two distinct statutory provisions each requires proof of a fact that the other does not” (People v Prescott, 66 NY2d 216, 221 , cert denied 475 US 1150 [citations omitted]; see, United States v Dixon, 509 US 688, 696 ; Blockburger v United States, 284 US 299, 304 ).

1989In People v Prescott ( 66 NY2d 216, 221 ), the court held, "[t]he test for determining whether two offenses are the same within the meaning of the double jeopardy clause is whether two distinct statutory provisions each requires proof of a fact that the other does not”.

2012Although Williams was grounded in double jeopardy concerns, a double jeopardy violation that renders a sentence unlawful is distinguishable from the kind of double jeopardy violation that may be expressly waived, because different societal interests are involved (see People v Allen, 86 NY2d 599, 602-603 [1995]).

2012Although Williams was grounded in double jeopardy concerns, a double jeopardy violation that renders a sentence unlawful is distinguishable from the kind of double jeopardy violation that may be expressly waived, because different societal interests are involved (see People v Allen, 86 NY2d 599, 602-603 [1995]).

1995In Menna v New York ( 423 US 61, 62 ), the United States Supreme Court held that a counseled guilty plea does not waive a double jeopardy defense.

1995It is well settled, of course, that a plea of guilty does not foreclose a double jeopardy challenge (see, Menna v New York, 423 US 61 ).

2012(See Burks v United States, 437 US 1 [1978] [where a defendant appeals seeking a new trial based on trial error and the reviewing court finds legally insufficient evidence to support the conviction, the double jeopardy clause bars a retrial, even though the defendant sought a retrial as a remedy on appeal].) Because in this case the defendant was successful on his CPL 440 motion in vacating the murder conviction on grounds of ineffective assistance of counsel and the People chose not to take an appeal from that decision, it is the People’s position that the defendant now must face retrial on t

2012Indeed, the double jeopardy doctrine specifically distinguishes between cases terminated in the defendant’s favor prior to any determination of guilt or innocence and those based on insufficient evidence (Burks v United States, 437 US 1, 14-18 [1978]; United States v Scott, 437 US 82, 94-99 [1978]).

2004Duplicitous indictments are disallowed because of the danger that a jury may vote to convict on a count without having reached a unanimous verdict on the charge pleaded therein, and because it may undermine a subsequent double jeopardy defense (see, People v Keindl, 68 NY2d 410, 418 [1986]).

1995Duplicitous indictments are disallowed because of the danger that a jury may vote to convict on a count without having reached a unanimous verdict on the charges pleaded therein, and because it may undermine a subsequent double jeopardy defense (see, People v Keindl, 68 NY2d 410, 418 ).

1991The termination of a trial without a defendant’s request or consent triggers the double jeopardy bar against reprosecution except in those exceptional cases where "manifest necessity” compelled the termination (Oregon v Kennedy, 456 US, at 672 , supra; Arizona v Washington, 434 US 497, 509 ; Illinois v Somerville, 410 US 458, 463 ; United States v Jorn, 400 US, at 481, supra; Gori v United States, 367 US 364 ; United States v Perez, 9 Wheat [22 US] 579).

1983Retrial of the defendant did not violate the double jeopardy clause when the court declared a mistrial of the first trial on the basis of the jury’s deadlock after two days of deliberation (see Arizona v Washington, 434 US 497, 509-510 ; People v Michael, 48 NY2d 1, 9 ).

2003This provision acts to bar separate prosecutions where “ ‘no violation of the double jeopardy principle can validly be maintained but the equities nevertheless seem to preclude separate prosecutions’ ” (People v Lindsly, 99 AD2d 99, 101-102 [1984], quoting People v Dean, 56 AD2d 242, 246 [1977], affd 45 NY2d 651 [1978]; see Matter of Auer v Smith, 77 AD2d 172,189-190 [1980], appeal dismissed 52 NY2d 1070 [1981] [citing a Practice Commentary written by the drafter of CPL 40.40, Justice Denzer, for the same proposition]; People v Ruzas, 54 AD2d 1083, 1083-1084 [1976] [same]; see generally Preise

1999There are three separate protections which are embodied in the doctrine of double jeopardy (North Carolina v Pearce, 395 US 711 ; United States v Benz, 282 US 304 ; Ex Parte Lange, 85 US 163 ; Matter of Auer v Smith, 77 AD2d 172 ).

2017Mayo and Price v Georgia ( 398 US 323 [1970]), on which Mayo relied, involved violations of the double jeopardy clause, where the defendants were unconstitutionally subjected to a second trial, an "ordeal not to be viewed lightly" ( Price at 331 ).

1983Automatic reversal is required where a coerced confession is introduced into evidence (Payne v Arkansas, 356 US 560 ), where there is bias on the part of the Judge (Tumey v Ohio, 273 US 510 ), where there is discrimination in the selection of the Grand Jury (Rose v Mitchell, 443 US 545 ), where there is prejudicial pretrial publicity (Sheppard v Maxwell, 384 US 333 ), where the prosecutor has failed to turn over to defense counsel prior statements made by prosecution witnesses (People v Consolazio, 40 NY2d 446 ), where assistance of counsel (Holloway v Arkansas, 435 US 475 ; Gideon v Wainwrigh

2012Regarding the doctrine of double jeopardy, the Court of Appeals stated, “as the doctrine of double jeopardy has developed in New York in relation to midtrial dismissals, ‘reprosecution is permitted whenever a dismissal has been granted on motion by defendant, so long as the dismissal does not constitute an adjudication on the facts going to guilt or innocence [even where] dismissal occurs after jeopardy has attached’ ” (Kurtz at 386 , quoting People v Key, 45 NY2d 111, 117 [1978]).

1985If defendant were to be acquitted, that would be the end of the matter; if convicted, appeal of the ruling, and, if appropriate, retrial or reinstatement of the verdict or decision would be permissible on any view of the double jeopardy doctrine” {People v Key, 45 NY2d 111, 120 ; see also, People v Leach, 46 NY2d 821 ; People v Brown, 40 NY2d 381 ). .

2000The petitioner alleges that the prosecutor deliberately provoked his trial counsel into moving for a mistrial at the trial of Indictment No. 57/1999, and therefore a retrial is barred by the doctrine of double jeopardy (see, CPL 210.20 [1] [3]; Oregon v Kennedy, 456 US 667 ).

1993Were we to review defendant’s contention that a retrial would have been barred by the doctrine of double jeopardy, we would find it meritless as there is no indication of prosecutorial bad faith (see, Oregon v Kennedy, 456 US 667, 679 ).

1985He does not contest the validity of these convictions; rather, he insists that the sentence imposed upon him as a second felony offender violates the double jeopardy clause of both the United States Constitution (US Const 5th amend), made applicable to the States through the 14th Amendment (US Const 14th amend; see, Benton v Maryland, 395 US 784 ), and the New York State Constitution (NY Const, art I, § 6).

1982(Cf. Preston v Blackledge, 332 F Supp 681 .) The double jeopardy clause of the Fifth Amendment to the United States Constitution, which is fully applicable to the States through the due process clause of the Fourteenth Amendment {Benton v Maryland, 395 US 784 ) does, in certain instances, prohibit reprosecution even though the initial prosecution did not result in a verdict and no punishment has been imposed.

1980The doctrine of double jeopardy has been in a state of constant re-examination during recent years by the United States Supreme Court (cf. Green v United States, 355 US 184 ; United States v Wilson, 420 US 332 ; United States v Jenkins, 420 US 358 ; Lee v United States, 432 US 23 ; United States v Scott, 437 US 82 ).

1980"The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.” In a similar vein, but more recently, the Supreme Court has stated that under the double jeopardy clause: "When a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense” (United States v Wilson, 420 US 332, 343

1991The termination of a trial without a defendant’s request or consent triggers the double jeopardy bar against reprosecution except in those exceptional cases where "manifest necessity” compelled the termination (Oregon v Kennedy, 456 US, at 672 , supra; Arizona v Washington, 434 US 497, 509 ; Illinois v Somerville, 410 US 458, 463 ; United States v Jorn, 400 US, at 481, supra; Gori v United States, 367 US 364 ; United States v Perez, 9 Wheat [22 US] 579).

1981Needless to say, when a defendant requests that the trial be terminated, his request ordinarily removes the constitutional barrier and he may not claim that the double jeopardy clause prevents a second prosecution even though the mistrial is based upon prosecutorial or judicial error (United States v Dinitz, supra; United States v Jorn, supra; Drayton v Hayes, 589 F2d 117).

2002A double jeopardy claim is waived if it is not timely interposed at trial (see People v La Ruffa, 37 NY2d 58 , cert denied 423 US 917 ).

1979Although a double jeopardy objection may be waivable (see Menna v New York, 423 US 61, 63, n 2 ; People v La Ruffa, 37 NY2d 58 , cert den 423 US 917 ) in certain unusual cases, as where a defendant explicitly consents to retrial despite a double jeopardy defense, double jeopardy nonetheless has strong ties to the concept of jurisdiction, and that, taken together with the significance of the prohibition as a bulwark against governmental overbearing, compels us to hold that a double jeopardy defense based on the State and Federal Constitutions poses a question of law reviewable in this court des

1978(See Brown v Ohio, 432 US 161, 166-167, n 6 .) In Ashe v Swenson (supra, p 448 ), Mr. Justice Brennan’s concurring opinion urged that the court adopt an interpretation of the double jeopardy clause which would bar prosecution of a crime arising out of a single criminal episode where another event of that same episode had been the subject of a prior prosecution (a situation not constitutionally impermissible) (see Hoag v New Jersey, 356 US 464 ).

1971This would be an exception to the double jeopardy clause as noted by Mr. Justice Brennan in footnote 7 of his opinion in Ashe v. Swenson ( 397 U. S. 436, 453 ).