People v. Bryant, 1998 N.Y. Int. 0100 (July 9, 1998).
CRIMINAL PROCEDURE - EXCEPTIONS TO DOUBLE JEOPARDY
ISSUE & DISPOSITION
Issues
1. Whether the prosecution of certain offenses in a State indictment, following the prior prosecution of a Federal indictment, falls within the exception to double jeopardy set forth in CPL 40.20(2)(b), where both prosecutions are based upon a single criminal transaction.
2. Whether concurrent sentences must be imposed under Section 70.25(2) of the Penal Law when two or more offenses are committed through a single act, or through an act which itself constituted one of the offenses and also was a material element of the other.
Disposition
1. Yes. The exception to the double jeopardy provision in CPL 40.20(2)(b) allows for sequential prosecutions for offenses arising from the same criminal transaction if (1) each of the offenses contains an element that is not an element of the other and (2) the statutory provisions are designed to prevent very different kinds of harm or evil.
2. No. The trial court retains its discretionary consecutive sentencing authority when the actus reus elements in the crimes are different, and the actus reus for one of the offenses is not a material element of the other offense.
SUMMARY
On June 18, 1993, co-defendants Jones, Sims and Bryant committed an armed robbery at a bank. A police officer pursued, and gunfire was exchanged during a confrontation at a nearby school parking lot. More gunfire was exchanged during a subsequent high speed chase before they were apprehended.
A Federal indictment charged defendants with (1) bank robbery, (2) assaulting and placing in jeopardy the lives of persons by the use of a dangerous weapon during the course of that robbery, (3) using and possessing certain firearms during the commission of a crime of violence punishable under federal law, and (4) conspiracy against the United States. Sims pleaded guilty to all four counts, and Jones pleaded guilty to count two and to a lesser included offense of count four. Following trial, Bryant was found guilty of all four counts.
Thereafter, a State grand jury handed up an eighteen count indictment against defendants stemming from the same occurrence. The court dismissed counts two through sixteen based on defendants' motion that prosecution was barred by statutory double jeopardy. Count one charged the defendants with attempted murder of a police officer during the course of performing his official duties. Counts seventeen and eighteen charged defendants with the knowing possession of certain firearms which had been defaced for the purpose of concealment, prevention of the detection of a crime, or misrepresentation of the identity of the weapon. Following trial on these three counts, Jones and Sims were acquitted of the attempted murder charge, but were found guilty of the two weapons charges. Bryant was found guilty of attempted assault in the second degree, as well as the two weapons charges. On appeal, the Appellate Division affirmed the convictions and the sentences imposed.
CPL 40.20(2)(b) contains an exception to its double jeopardy standard that provides that a subsequent action will not be barred if each action contains an element which is not an element of the other. In the instant case, the statutory elements of the three counts in the State indictment are different from those of the Federal indictment because the Federal indictment did not include (1) the intent to cause the death of a police officer and (2) the provision against weapons that had been defaced for the purpose of concealment. CPL 40.20(2)(b) also provides that subsequent prosecution is permitted if the charges are designed to regulate different harms or evils. The Federal criminal statutes at issue are intended to protect financial institutions in which the government has an interest, and to prevent the use of weapons in connection with crimes against such institutions. The State criminal statutes at issue are intended to prevent the killing of police officers, and to curtail the availability of defaced firearms which individuals may use in the course of criminal acts to prevent detection.
The Court of Appeals rejected the defendants' argument that because the offenses were committed through a single act, the sentences for the State and Federal convictions must run concurrently. Section 70.25(2) of the Penal Law states that the trial court must impose concurrent sentences when two or more offenses are committed through a single act, or through an act which constituted one of the offenses and also was a material element of the other. Case law indicates that in determining whether concurrent sentences are required, the trial court must determine whether the actus reus elements in both of the committed offenses are the same, or if the actus reus element for one offense is by definition a material element of the other. The two weapons charges are physical possession of a defaced weapon and aiding and abetting the possession of a defaced weapon. The actus reus elements are entirely separate and distinct, and neither offense contains actus reus elements that constitute a material element of the other. Therefore, the Court of Appeals found that the trial court retained its discretionary power regarding whether to impose consecutive sentences.
Prepared by the liibulletin-ny Editorial Board.