People v. Biggs, 2003 N.Y. Int. 0149 (Dec. 2, 2003).

CRIMINAL LAW - CRIMINAL PROCEDURE - DOUBLE JEOPARDY - FIFTH AMENDMENT - NEW YORK CONSTITUTION, ART. 1, § 6 - INSUFFICIENT EVIDENCE - ACQUITTAL - BLOCKBURGER TEST - SECOND DEGREE MURDER - FIRST DEGREE MANSLAUGHTER

ISSUE & DISPOSITION

Issue(s)

1. Whether, for double jeopardy purposes, a judge’s decision to not submit intentional murder charges to the jury because of insufficient evidence was equivalent to an acquittal where the defendant did not seek dismissal of the murder charge.

2. Whether, for double jeopardy purposes, first degree manslaughter and second degree murder are the same offense.

Disposition

1. Yes. So long as it is clear that the charges were due to insufficient evidence, defense counsel’s failure to move for a trial order of dismissal will not preclude the judge’s decision from acting as an acquittal for purposes of double jeopardy.

2. Yes. There is no element of first degree manslaughter left unproven if all the elements of second degree murder have been shown; therefore, they are the same offense for double jeopardy purposes.

SUMMARY

Defendant was indicted and charged with various crimes in connection with a double murder in February 1999. The trial judge repeatedly advised the parties that there was insufficient evidence to present a charge of intentional murder to the jury. Defendant never moved to dismiss the intentional murder charges, but the only charges submitted to the jury were two counts of second degree depraved indifference murder and two counts of second degree manslaughter. The jury returned a verdict for Defendant on the murder charges, but it could not reach a verdict on the manslaughter charges. The court declared a mistrial after the jury was unable to reach a verdict, and no plea agreement was reached. Defendant was subsequently indicted for two counts each of first and second degree manslaughter. Defendant moved to dismiss the indictment arguing that it was unauthorized under Criminal Procedure Law § 310.70 and that a retrial for first degree manslaughter violated the Double Jeopardy Clauses contained in the Fifth Amendment and Article 1 § 6 of the New York Constitution. Supreme Court denied Defendant’s motion and a jury found Defendant guilty of two counts of first degree manslaughter. The Appellate Division affirmed Defendant’s conviction. The Court of Appeals reversed and ordered a retrial on the second degree manslaughter charge.

The Court noted that double jeopardy applies when there is a subsequent prosecution for an offense of which the defendant has already been acquitted. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969). The Court stated that the question of whether the trial judge’s decision to not submit the intentional murder charge to the jury constituted an acquittal rested on whether the trial court’s ruling represented a resolution of some or all of the factual elements of the offense charged. See United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). The Court found that the trial court’s decision not to submit the intentional murder charge to the jury in light of the determination that there was insufficient evidence was effectively a dismissal and therefore could be treated as an acquittal for double jeopardy purposes.

The Court then applied the Blockburger test to determine whether the second degree murder and first degree manslaughter charges are the same offense for double jeopardy purposes. Under Blockburger, for two offenses to be considered distinct offenses, each offense must "require[] proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). The Court noted that when comparing a greater and a lesser included offense, the two are the same for the purposes of double jeopardy when the lesser offense does not require any proof beyond that necessary to prove the greater offense. See Brown v. Ohio, 432 U.S. 161, 168 (1977).

The Court stated that the only difference between first degree manslaughter and second degree murder is whether the defendant intended to cause serious physical injury, Penal Law § 125.20(1), or death, Penal Law § 125.25(1). The Court reasoned that "it is impossible to intend to kill a person without simultaneously intending to seriously physically injure that person." Therefore no additional facts were necessary to prove first degree manslaughter if second degree intentional murder had already been proven, and thus the two offenses were the same. Because first degree manslaughter was the same offense as the second degree intentional murder offense which the trial court acquitted, Defendant could not be indicted and prosecuted for first degree manslaughter. Finally, the Court declined to review Defendant’s statutory double jeopardy claim under Criminal Procedure Law § 40.20(2) because it was not adequately preserved for the Court’s review. Thus, the Court reversed the order of the Appellate Division, dismissed the counts of the indictment charging first degree manslaughter and ordered a new trial for the second degree manslaughter counts.

Prepared by the liibulletin-ny editorial board.