This appeal presents two questions for our review. The
threshold question is whether Supreme Court's withdrawal of the
intentional murder counts from the jury's consideration on the
ground that there was insufficient evidence to support those
charges constituted an acquittal for purposes of the Double
Jeopardy Clauses of both the Federal and New York State
Constitutions (US Const, 5th Amend; NY Const, art I, § 6). If
so, we turn to whether first degree manslaughter is the same
offense as intentional murder for constitutional double jeopardy
purposes such that an acquittal of the greater offense precludes
further prosecution for the lesser offense. We conclude that
defendant was acquitted of the intentional murder charges, and
that his subsequent prosecution for manslaughter in the first
degree violated the Double Jeopardy Clauses of the Federal and
State Constitutions.
In February 1999, defendant shot and killed two people,
an adult male and a 14-year-old female. The original indictment
charged defendant with two counts of murder in the first degree
(Penal Law § 125.27[1][a][viii]), four counts of murder in the
second degree -- consisting of two counts of intentional murder
and two counts of depraved indifference murder -- (Penal Law §
125.25[1], [2]), and one count of criminal possession of a weapon
in the second and third degrees (Penal Law §§ 265.03[2],
265.02[4]). Before the case was submitted to the jury, the court
repeatedly advised the parties that there was insufficient
evidence of intentional murder. For example, at a preliminary
charge conference before the close of the People's proof, the
Judge informed the parties that he did not intend to submit the
counts of intentional murder to the jury, stating “[t]here's no
evidence for me [to] submit to the jury that the defendant
intended to kill these two people * * * [s]o I don't believe
there is evidence to support intentional murder in a case where
two individuals were randomly shot and killed.” When the People
attempted to argue at a later charge conference that the jury
should be permitted to consider intentional murder, the Judge
indicated that he had previously ruled on the matter, that there
was insufficient evidence to support intentional murder and that
the evidence was consistent with a depraved act. The only
charges submitted to the jury were two counts of second degree
depraved indifference murder (Penal Law § 125.25[2]) and two
counts of second degree manslaughter (Penal Law § 125.15[1]) as a
lesser included offense. The defendant did not move to dismiss
the intentional murder charges at any point.
After two and a half days' deliberation, the jury found
the defendant not guilty of the murder charges, but was unable to
reach a verdict on the manslaughter charges. While the jury
deliberated, the judge discussed the options with counsel,
including the possibility that defendant enter into a plea
agreement. The court advised defendant that he could never be
retried for murder, but that he could be retried for the
manslaughter charges and face sentence exposure consistent with
the maximum for a second violent felony offender guilty of second
degree manslaughter. Defendant did not accept the plea, and at
defense counsel's request the Judge gave the jury an Allen
charge. After further deliberation, the jury was still unable to
reach a verdict on the second degree manslaughter charges and the
Judge declared a mistrial.
Defendant was subsequently indicted for two counts of
manslaughter in the first degree (Penal Law § 125.20[1]) and two
counts of manslaughter in the second degree. He moved to dismiss
the second indictment arguing that it was unauthorized under CPL
310.70 and that double jeopardy precluded his retrial for first
degree manslaughter as a lesser included offense of intentional
second degree murder. Supreme Court denied defendant's motion to
dismiss, finding that the evidence was legally sufficient to
support the charges in the second indictment and, specifically,
that the indictment for manslaughter in the first degree was
proper, as that charge was not considered by the first jury or
contained in the original indictment.
After a second jury trial, defendant was convicted of
two counts of manslaughter in the first degree. The jury had
been advised not to consider manslaughter in the second degree if
they returned a guilty verdict of manslaughter in the first
degree. The Appellate Division affirmed, finding that double
jeopardy did not prevent defendant from being tried for first
degree manslaughter (298 2 398 [2002]). We now reverse.
Analysis
The Double Jeopardy Clause consists of three separate
guarantees: (1) “[i]t protects against a second prosecution for
the same offense after acquittal. [(2)] It protects against a
second prosecution for the same offense after conviction. [(3)]
And it protects against multiple punishments for the same
offense” (
North Carolina v Pearce,
395 US 711, 717 1969]
[footnotes omitted]
overruled in part on other grounds Alabama v
Smith,
490 US 794 [1989]). The case before us falls within the
first category as defendant alleges it involves an acquittal and
a second prosecution for the same offense.
First, we need to examine whether the defendant was
acquitted of the intentional murder charges. It is settled that
dismissal of a count due to insufficient evidence is tantamount
to an acquittal for purposes of double jeopardy and protects a
defendant against additional prosecution for such count (
see
Smalis v Pennsylvania,
476 US 140, 142 [1986],
Burks v United
States,
437 US 1 [1978];
People v Mayo, ,
48 NY2d 245, 249 1979]).
Here, defendant never sought a trial order of dismissal. Nor did
the Judge specifically state that he was dismissing the counts.
However, “what constitutes an 'acquittal' is not to be controlled
by the form of the judge's action. * * * Rather, we must
determine whether the ruling of the judge, whatever its label,
actually represents a resolution, correct or not, of some or all
of the factual elements of the offense charged” (
United States v
Martin Linen Supply Co.,
430 US 564, 571 [1977] [citations
omitted]).
Under the facts of this case, Supreme Court clearly
dismissed the intentional murder counts due to insufficient
evidence. The Judge repeatedly stated that the intentional
murder count was unsupportable. It was also apparent from the
colloquy while the jury was deadlocked that the parties believed
the intentional murder charges had been dismissed and that
defendant could only be prosecuted for second degree manslaughter
in any subsequent indictment. It is unquestionably the better
practice for defense counsel to move for a trial order of
dismissal when the People have rested or at the close of proof
(
see CPL 290.10). However, under these facts and circumstances,
the Judge's decision not to submit the intentional murder counts
to the jury was a dismissal of the charges for insufficient
evidence constituting a resolution of those charges, and thus the
equivalent of an acquittal for double jeopardy purposes.
Since the defendant was acquitted of intentional
murder, we next must determine whether first degree manslaughter
is the same offense as second degree murder for double jeopardy
purposes,
[1]
so that his acquittal of the murder charges barred
subsequent prosecution for first degree manslaughter. The Double
Jeopardy Clause precludes consecutive prosecutions for greater
and lesser included offenses where, “the lesser offense * * *
requires no proof beyond that which is required for conviction of
the greater” (
see Brown v Ohio,
432 US 161, 168 [1977];
People v
Wood, ,
95 NY2d 509, 514 [2000]). “The applicable rule is that
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”
(
Blockburger v United States,
284 US 299, 304 [1932] [citations
omitted]).
A person is guilty of second degree murder when “[w]ith
intent to cause the death of another person, he causes the death
of such person or of a third person” (
Penal Law § 125.25[1]).
First degree manslaughter is established when “[w]ith intent to
cause serious physical injury to another person, he causes the
death of such person or of a third person” (Penal Law §
125.20[1]).
[2]
Under the
Blockburger test, these two crimes are the
“same” offense. If second degree intentional murder has been
proven, there is no additional fact that must be shown to
establish first degree manslaughter. There can be no doubt that
it is impossible to intend to kill a person without
simultaneously intending to seriously physically injure that
person. Thus, the lesser offense does not require any proof
beyond that required to sustain a conviction of the greater
offense. “The greater offense is therefore by definition the
'same' for purposes of double jeopardy as any lesser offense
included in it” (
Brown, 432 US at 168 [holding that joyriding and
auto theft were the “same” offense for double jeopardy purposes
where joyriding required no proof beyond that necessary to
establish auto theft]). For double jeopardy purposes,
intentional murder in the second degree and manslaughter in the
first degree should be considered the same offense as no
additional element of proof is required to sustain a conviction
of first degree manslaughter beyond that which is required for
second degree murder.
Consequently, since defendant was acquitted of the
intentional murder charges at his first trial, and manslaughter
in the first degree is the same offense as murder in the second
degree under
Blockburger, the Double Jeopardy Clauses of both the
Federal and State Constitutions precluded defendant's subsequent
indictment and prosecution for first degree manslaughter.
Although a defendant's state and federal constitutional
double jeopardy claims are reviewable even when they are not
properly preserved below (
see People v Michael, ,
48 NY2d 1, 7
[1979]), the same is not true of a statutory double jeopardy
claim under
Criminal Procedure Law § 40.20 (2). “A statutory
claim that one may not be separately prosecuted for two offenses
based on the same act or criminal transaction * * * must be duly
preserved if there is to be appellate review” (
People v Dodson,
,
48 NY2d 36, 38 [1979];
see also People v Gonzalez, ,
99 NY2d 76,
82-83 [2002] [holding that a constitutional double jeopardy claim
as to whether multiple punishments for the same offense were
appropriate was a statutory interpretation question that must be
preserved for review]). Here, contrary to defendant's
contention, the statutory double jeopardy claim under CPL
40.20(2) was not adequately preserved for our review.
The parties' remaining contentions are without merit.
Accordingly, the order of the Appellate Division should
be reversed, the counts of the indictment charging defendant with
manslaughter in the first degree dismissed and a new trial
ordered on the counts of the indictment charging defendant with
manslaughter in the second degree.