Petitioners Brief — Grady v. Corbin

Supreme Court of the United States

October Term, 1989

WILLIAM V. GRADY, DISTRICT ATTORNEY OF

DUTCHESS COUNTY,

Petitioner,

vs.

THOMAS J. CORBIN,

Respondent

On Writ oF CERTIORARI TO THE New York Stare Court

OF APPEALS

BRIEF FOR PETITIONER

WILLIAM V. Grapy

District Attorney of Dutchess County

Petitioner, Pro Se (Counsel! of Record)

Courthouse

10 Market Street

. NY 12601

(914) 431-1940

‘Tue Reronren Company, Inc. Wahon, NY | 5856—800 252-718) — 1989

(3616)

Whether, within the constraints of the double jeopardy

clause of the Fifth Amendment, a motorist who causes the

death of another person as the result of an automobile

collision can be subject to prosecution for homicide, not-

withstanding the fact that at the scene of the collision, and

Thomas J. Corbin and Judith A. Hillery, as Judge of the

and William V. Grady, as

iii.

TABLE OF AUTHORITIES

Pages

TABLE OF CASES:

Benton v. Maryland, 395 U.S. 784 (1969).......... 11

Blockburger v. United States, 284 U.S. 299 (1932) passim

Brown v. Ohio, 432 U.S. 161 (1977)............ 17, 18

Corbin v. Hillery, 74 N.Y.2d 279, 543 N.E.2d 714, 545

SEEN TO CIID .......<2...200002000-. 2

Garrett v. United States, 471 U.S. 773 (1985).... 11, 18

Gavieres v. United States, 220 U.S. 338 (1911) ..... 11

Harris v. Oklahoma, 433 U.S. 682 (1977).......... 17

lannelli v. United States, 420 U.S. 770 (1975).... 11, 12

Illinois v. Vitale, 447 U.S. 410 (1980).......... passim

Morey v. Commonwealth, 108 Mass. 433 (1871).... 18

In Re Nielsen, 131 U.S. 176 (1889)............ 17, 18

North Carolina v. Pearce, 395 U.S. 711 (1969) ..... 11

People v. Cruz, 48 N.Y.2d 419, 399 N.E.2d 513, 423

NYS2d

a

Tye

onto v. De uca, 108 NJ. 98, 527 A2d 1355, Cert

: ‘484 US. 944 (1987)............... 18

a .

ee aie

,

-

el

ii

iv.

Page

State v. Padilla, 101 N.M. 58, 678 P:2d 686 (1984),

(1985) ....cocccccccccecsuneeeneneeneneen 18

Thigpen v. Roberts, 468 U.S. 27 (1984)............ 16

United States v. — oo

Nos. 89-3070, 89-3071, 89-3072 11/3/88 .

CONSTITUTIONAL PROVISIONS:

U.S. Const. Amendment Five............... 6, 7,9, 19

U.S. Const. Amendment Fourteen ...............+- 16

STATUTES:

28 U.S.C. Section 1257(3) .... 2.6... eee eee eeewees 2

N.Y.C.P.L. Section 30.30. ... 2... 2c cece cnn eneeee a

N.Y.C.P.L. Section 40.30. .... 2.2... ecceeeeeee 6, 7, 10

N.Y.C.PLL. Section 100.25 ........scceseveceesiee 4

N.Y.C.P.L. Section 710.30 ........-.+++4+- csdesen

N.Y. Penal Law Section OGD . 0 cdccctetécnteeedd as

«

N.Y. Penal Law Section 15.05.....-ceceecereee hee

a

« . VAs

+~ ‘ie Sh

“ .

N.Y. Penal Law Section eoeetty preted annee

N.Y. Penal Law Section haentions

a! * all p4

Pees

4 » &. 4

= yom a :

‘-

v.

Page

N.Y. Penal Law Section 125.12................... 5

N.Y. Penal Law Section 125.15................. 5,13

N.Y.S. V & T Law Section 125................... 13

N.YS. V & T Law Section 1120................ 3,13

N.Y.S. V & T Law Section 1192(2)............. passim

N.Y.S. V & T Law Section 1192(3)............. passim

N.Y.S. V & T Law Section 1800(d)............ 6, 7, 12

=—— =”

1 a

No. 89-474

IN THE

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM, 1989.

WiILuLiaM V. Grapy, District Attorney of Dutchess

County,

Petitioner,

against

THOMAS J. CORBIN,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE NEW

York StTaTE COURT OF APPEALS

The District Attorney of Dutchess County, on behalf of

of the State of New York, seeks reversal of a

+ ‘3%

2

Opinions Below

The opinion of the New York State Court of Appeals

which was entered on July 13, 1989, is reported at 74 N_Y.

2d 279, 543 N.E.2d 714, 545 N.Y.S.2d 71 and appears at

page la et seq. of the Petition for Certiorari. The Order of

missing an application to prohibit prosecution is unreported

and is set forth at page 1b et seg. of the Petition for Cer-

tiorari. The opinion of the County Court denying respond-

ent’s motion to dismiss the indictment is also unreported

and appears at page Ic et seq. of the Petition for Certiorari.

Jurisdiction

The judgment of the New York Court of Appeals was

entered on July 13, 1989. The Petition for a Writ of Cer-

tiorari was filed on September 11, 1989, and this Court

granted the Petition on November 6, 1989. The jurisdiction

of this Court is invoked under 28 U.S.C. Section 1257 (3).

Constitutional and Statutory Provisions Involved

Statutory provisions involved are set forth in the Appen-

dix to this brief.

Statement Of The Case

At ' 6:35 p.m. on October 3, 1987, while

_ ot syemimanty 006 oss <n amma aaa

lane on a state highway, he drove his vehicle into the

eastbound lane of traffic and struck the rear view mirror of

a vehicts, He chen continnsd tute GaSe

ing a second vehicle operated by Brenda Dirago and occu-

pied by Daniel Dirago. At the time of the impact there was

a moderate to heavy rainfall; the respondent was travelling

3

at forty-five (45) miles per hour and respondent's vehicle

was nine (9) feet into the eastbound lane and there was an

overlap of approximately two (2) feet between the left front

of the Dirago vehicle and the left front of respondent's

vehicle. J.A. 19.'

While Intoxicated (New York State Vehicle and Traffic

Law Section 1192(3), and one traffic infraction, Failure to

Keep Right (New York State Vehicle and Traffic Law Sec-

tion 1120(a). J.A. 3-4.

After the respondent's arrest, an Assistant District Attor-

ney was called to the scéne by the police to prepare a

search warrant for the seizure of a sample of respondent's

blood, if necessary. No search warrant was prepared

because the respondent consented to taking a blood test to

determine the level of alcohol in his blood. Pet. 4c. The

Assistant District Attorney then left the scene. Later that

evening Mrs. Dirago died as a result of injuries sustained in

the automobile collision. J.A. 19.

The uniform traffic tickets issued on the night of October

3, 1987, were returnable in the local criminal court on

October 29, 1987. J.A. 3-4. However, that Court later

advanced the return date to October 27, 1987. In doing so,

the Court notified the respondent, but not the prosecutor.

App. All.

'A refers to the Joint Appendix Pet refers to the Petivon for a

Writ of Certioran. refers to the Appendix which was

filed in the New York Court of T. refers to the transcnpt

whuch 1s included in the

Appelt Append fled wit he

State Cour of Appeals.

4

On October 14, 1918, an Assistant District A*torney who

had received the District Attorney's file on the misde-

meanor and traffic infraction charges, but who had no

knowledge of Mrs. Dirago’s death, mailed to the defendant

copies of a statement of readiness for trial, (N.Y.C.P.L.

710.30) a supporting deposition for the Driving While

Intoxicated charge (N.Y.C.P.L. Section 100.25) and a DWI

foundation report. J.A. 5-10. Those documents, however,

were never filed with the local criminal court. T. 114-16,

143.

On October 27th the respondent and counsel appeared

pleas of guilty to the two offenses charged in the uniform

tickets. J.A. 11. At the beginning of the plea inquiry the

Court asked the following question and received the fol-

lowing response:

Judge: Have you contacted ADA's office?

Attorney: Yes. We have received papers. We have

(A. 11) At the time the court accepted the pleas the Judge

was not aware that the case involved an automobile acci-

-

5

twenty (20) day conditional license. J.A. 32. At the time of

sentencing neither the Assistant District Attorney who was

present nor the Court knew that the case involved a fatal

automobile collision. T. 114, 121-22, 153.

In the meantime, on October 30, 1987, the District

Attorney had received the results of respondent's October

3rd blood test which indicated that respondent had a blood

alcohol level of .19 percent. T. 54-55; J.A. 20. Also, the

prosecutor assigned to investigate the f tality sent a letter

to defendant's attorney dated November 12, 1988, indicat

ing that the vehicles involved in the collision had been

inspected “in preparation for the Grand Jury proceeding”

and were available for inspection by the defense. App. A16.

In early January 1988 the District Attorney received the

report of an accident reconstructionist, which had been

commissioned in early October 1987. T. 83-84. A Grand

Jury was then impanelled and an Indictment dated January

19, 1988, was returned accusing respondent Corbin of one

count of Manslaughter in the Second Degree (in violation

of New York State Penal Law Section 125.15), two counts

of Vehicular Manslaughter in the Second Degree (in viola-

tion of New York State Penal Law Section 125.12, Subdivi-

sions | and 2), one count of Crin.inally Negligent Homicide

(in violation of New York State Penal Law Section 125.10).

one count of Assault in the Third Degree (in violation of

New York State Penal Law Section | 20.00, Subdivision 2).

one count of Operating a Motor Vehicle While Under the

Influence of Alcohol (in violation of New York State Vehi-

cle and Traffic Law Section 1192, Subdivision 2) and one

count of Operating a Motor Vehicle While Under the Influ-

ence of Alcohol (in violation of New York State Vehicle and

Traffic Law Section | 192, Subdivision 3). J.A. 13-17

In County Court the respondent sought dismissal of the

Indictment in part on the ground that prosecution under the

a conviction of violation of any provision of this

chapter shall not be a bar to a prosecution for an

assault or for a homicide committed by any person

in operating a motor vehicle or a motor cycle.

without opinion. Pet. 1b ef seq.

The respondent then to the New York State

Court of Appeals. That reversed the order of the

Appellate Division. The majority of the Judges, relying on

7

this Court's dicta in Illinois v. Vitale, 447 U.S. 410 (1980),

concluded that the double jeopardy principles of the Fed-

eral Constitution precluded prosecution under this Indict-

In reaching its conclusion, the Court resolved a number

of state law issues. The Court held that N.Y.C.P.L. Section

40.30(2Xb) was inapplicable because the traffic-ticket

guilty pleas were not “procured without the knowledge of

the prosecution.” Pet. 6a-9a. In addition, the Court found

that the two misdemeanor counts included in the seven

count indictment were barred by the general New York

statutory double jeopardy provision, which prohibits suc-

cessive prosecutions arising out of the “same transaction.”?

Pet. 13a.

Prosecution of the remaining five counts appeared to be

permitted by state law, since Section 1800(d) provided

express authority to prosecute “homicide” or “assault”

even after a conviction for a traffic offense. Pet.

10a. Therefore, the Court had to determine whether Section

1800(d) was constitutional as applied to this case.

To decide whether the Double Jeopardy Clause would

thus bar this prosecution, the Court turned to the familiar

rule of Blockburger v. United States, 284 U.S. 299, 304

(1932), that two offenses are not “the same” if “each

provision requires proof of fact which the other does not”

Quoting Mlinois v. Vitale, 447 U.S. 410, 416 (1980), the

|

:

|

|

offenses —those charging

even under

. discussion

s not altogether clear to this result on

the basis of a conclusion that while intoxicated, in violavon of

Section 1192(3), to which respondent pled guilty, and Section | 192(2).

with which he was not charged, were “the same offense” as each other

was wo ene, Go ln OS ee

driving while intoxicated in violanon of and Traffic Law Sec

thon 119202) or (3) as an aggravating factor.” id In addition, the “proof

to establish the ‘driving while intoxicated’ elements” of a

ment— which charged vehicular homicide with Section 1192(2) and

Section 1192(3) as factors,

— mam which respondent had pleaded

traffic-neket to

119203) tself—was e lesser included offense of both two and

(hree under (hat same test. counts two and three were both barred in

a condance with thes “tradiwonal” Blockburger anatyus

9

on what it termed a “pointed dictum” from

Mlinois v. Vitale, 447 U.S. 410, 421 (1980), see Pet. | La, the

Court nonetheless found that the prosecution on the homi-

cide and assault charges was barred by the Double Jeop-

ardy Clause. The majority held that Vitale required, in

addition to the customary Blockburger test focusing on the

statutory elements of the two crimes, a further inquiry inte

the actual proof to be presented at trial. In this case, the

prosecution had “affirmatively stated in its bill of particu-

lars that it intends to use the acts underlying [the traffic

offenses to which respondent had pleaded guilty) as the

major part of its proof on the reckless and negligence

elements of the former crimes.” Pet. 12a. Therefore,

because, according to the Court, “the prosecution will rely

on the prior traffic offenses as the acts necessary to prove

the homicide and assault charges,” prosecution of the latter

i is “constitutionally prohibited.” Pet. | 2a.

a apcahing for the two dimenting Setigns, Chic Dadge

Wachtler stated

It devalues the double-jeopardy clause of the Fifth

Amendment of the Federal Constitution when a

defendant, unquestionably intoucated at the ume

his auto struck and killed a person, avoids a homi-

cide prosecution by actively m veading a justice of

the peace into believing that no accident occurred,

and no one was killed.

Pet. i4a.

The dissenters did not reach the constitutional double

jeopardy issue, finding that the respondent had procured his

for the traffic offenses by misleading the local

criminal court judge Since the respondent had engaged in a

“fraudulent scheme” to avoid prosecution for the greater

offense, prosecution for the homicide was permitted pur-

suant to N_Y.C_P.L. 40.30(2Xb). Pet. App. I4a-15a.

Summary of Argument

in Blockburger v. United States, 284 U.S. 299, 304 (1932)

this Court held that

|W Jhere 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 an additional fact which the other

does not

This “same offense” Blockburger statutory analysis

should not now be abandoned or expanded.

Under New York Law Manslaughter in the Second

Degree and Crmunally Neghgent Homicide necessarily

involve death as an element of the crime. Sumilarty, Assault

of the crume Nerther of these homecide charges nor the

assault charge requires proof of a parucalar instrumentality

ot the crume or that the defendant was intoxicated On the

other hand, Driving Whale Intoxicated and Failure to Keep

Right cam only be committed by the operator of a motor

vehicle and do not necessarily involve death or physical

injury Thus there is a lack of mutuality in the elements of

the various crumes and they are not the “same offense” for

purposes of comsttutonal double jeopardy analysis.

Consequently. the peutoner submits that the New York

State Court of Appeals erred in prohibiting prosecuton on

the indictment and the case should be reversed and

remanded

11

Argument

The New York State Court of Appeals Erred In Its Inter-

pretation of This Court's Rulings and Respondent's Pros-

ecution for Manslaughter, Criminally Negligent Homicide

and Assault Should Continue.

The majority of the New York Court of Appeals, relying

on this Court’s statements in Illinois v. Vitale, 447 U.S. 410,

421 (1980) clearly ruled that prosecution for Manslaughter

which are made applicable to the states through the Four-

teenth Amendment. Benton v. Maryland, 395 U.S. 784, 796

(1969). The petitioner contends that this expansive inter-

pretation of double jeopardy protections 1s inconsistent

with this Court's prior rulings. See /annelli v. United States,

420 U.S. 770, 785 N.17 (1975); Gavieres v. United States,

220 U.S. 338, 343-44 (1911).

Twenty ago this Court specifically recognized that

the Fifth Amendment double jeopardy guarantee involved

three separate protections:

It protects agai a second prosecution for the same

offense after acquittal. It protects against a second

prosecution for the same offense after conviction.

And it protects against multiple punishments for the

same offense.

North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (foot-

note omitted). Accord Garrett v. United States, 471 U.S.

773, 777 (1985), Mlinois v. Vitale, 447 U.S. 410, 415

(1980).

12

The issue in the instant case is whether the homicide and

assault counts, which could be prosecuted pursuant to New

York State Vehicle and Traffic Law Section 1 800(d) are the

“same offense” as Driving While Intoxicated and Failure to

Keep Right, the vehicle and traffic offenses to which

respondent entered guilty pleas. The respondent submits

that they are different offenses.

In Blockburger v. United States, sup-a, 284 U.S. at 304

this Court stated:

... [Whhere 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 an additional fact which the other

does not. Gavieres v. United States, 220 U.S. 338,

342 (1911) and authorities cited. In that case this

Court quoted from and adopted the language of the

Court of Massachusetts in Morey v. Com-

monwealth, 108 Mass. 433 (1871); “a single act

may be an offense against two statutes, and if each

statute requires proof of an additional fact which the

other does not, an acquittal or conviction under

either statute does not exempt the defendant from

prosecution and punishment under the other.”

This is a technical test focusing on the statutory ele-

ments; it is not concerned with an overlap, even a substan-

tial overlap, in the proof on which the prosecution relies to

establish the elements of the offenses. lannelli v. United

States, supra, 420 U.S. at 785 N.17.

Here, on October 27, 1987, respondent entered pleas of

guilty to the misdemeanor of Driving While Intoxicated

(New York State Vehicle and Traffic Law Section 1192,

Subdivision 3) and the traffic infraction of Failure to Keep

13

Right. New York State Vehicle and Traffic Law Section

1120, Subdivision a. In order to establish respondent's guilt

of Driving While Intoxicated in violation of Section 1192,

Subdivision 3, the prosecution would have to establish that

the respondent operated a motor vehicle, (ie, a vehicle

operated on a public highway which is propelled by power

other than muscular power (New York State Vehicle and

Traffic Law Section 125)), while in an intoxicated condi-

tion. The New York State Court of Appeals has ruled that a

driver is intoxicated when

he has voluntarily consumed alcohol to the extent

that he is incapable of employing the physical and

mental abilities which he is expected to possess in

order to operate a vehicle as a reasonable and pru-

dent driver.

People v. Cruz, 48 N.Y.2d 419, 428, 399 N.E.2d 513, 423

N.Y.S.2d 625, 629 (1979), appeal uismissed 446 U.S. 901

(1980). In order to establish a defendant's guilt of Failure to

Keep Right, the prosecution would have to establish that

the defendant was operating a motor vehicle on a road of

sufficient width and failed to keep his vehicle on the nght

half of the roadway. Therefore, both offenses to which

appellant entered pleas of guilty required the prosecution to

establish as an element of the offense that the appellant was

operating a motor vehicle

On the other hand, neither the homicide nor the assault

counts in the indictment require the prosecution to establish

a Oona cog

Specifically, in order to establish Mansiaughter in ‘he

Second Degree in violation of New York Penal Law Secvon

125.15, the prosecution would have to estableh that the

respondent recklessly caused the death of another .¢ tha!

the defendant was aware of and consciously disregarded »

14

substantial and unjustifiable risk that a death would occur

(New York Penal Law Section 15.05, Subdivision 3) and

that another person died as a result of the respondent's

conduct. Under the Blockburger test Manslaughter in the

Second Degree, as charged in the first count of the indict-

ment, is not the same offense as Driving While Intoxicated

or Failure to Keep Right. The Driving While Intoxicated

and Failure to Keep Right statutes require proof that the

defendant was operating a motor vehicle; that is not a

statutory element of the crime of Manslaughter in the Sec-

ond Degree. On the other hand, Manslaughter in the Sec-

ond Degree requires proof of a death, Driving While Intoxi-

cated and Failure to Keep Right do not. Therefore, under

traditional double jeopardy analysis, the prosecution for

Manslaughter in the Second Degree should be permitted.

Under the fourth count of the indictment the respondent

is charged with Criminally Negligent Homicide. In order to

establish his guilt of that offense, the prosecution must

Failure to Keep Right. The Dri While

Failure to Keep Right statutes require

respondent operated a motor vehicle and was intoxicated.

These are not statutory elements of Criminally

cide requires proof of a death which Driving

cated and Failure to Keep Right do not. Therefore, under

the tracitional double jeopardy analysis, prosecution for

15

Criminally Negligent Homicide under the fourth count of

the indictment should be permitted.

Under the fifth count of the indictment the respondent

was accused of Assault in the Third Degree in violation of

New York Penal Law Section 120.00, Subdivision 2. In

and that other person suffered an “impairment of physical

condition or substantial pain” (New York Penal Law Sec-

tion 10.00, Subdivision 9) as a result of the defendant's acts.

offense as Driving While Intoxicated or Failure to “*ep

Right. The Driving While Intoxicated and Failure to Ke. »

statutes require proof that the defendant was operat-

icle; that is not a statutory element of the

TH

+

it

ig

Hi

u

i

iL

5

:

By

4

3

j analysis, the prosecution for Assault in the

under the fifth count of the indictment should

Ih

died shortly after the collision and the other died the fol-

lowing day. At the scene of the accident, on November 24,

1974, the respondent was issued a traffic citation charging

him with failure to reduce speed to avoid an accident. On

December 23, 1974, he entered a plea of not guilty to that

16

charge, was tried, convicted and sentenced to pay a fine of

Fifteen Dollars ($15.00). On December 24, 1974, an

instrument was filed accusing respondent of two counts of

Involuntary Manslaughter. Specifically, he was accused of

recklessly driving a motor vehicle and causing the death of

two children. /ilinois v. Vitale, supra, 447 U.S. at 411-12. In

evaluating the respondent's contention that his manslaugh-

ter prosecution was barred by double jeopardy principles,

this Court held: .

... [If manslaughter by automobile does not always

entail proof of a failure to slow, then the two

offenses are not the “same” under the Blockburger

test. The mere possibility that the state will rely on

all of the ingredients necessarily included in the

traffic offense to establish an element of its man-

slaughter case would not be sufficient to bar the

later prosecution.

Id. at 419. That holding should be controlling here.

In Vitale this Court also stated:

By analogy, if in the pending manslaughter pros-

ecution Illinois relies on and proves a failure to slow

to avoid an accident as the reckless act necessary to

prove manslaughter, Vitale would have a substantial

claim of double jeopardy under the Fifth and Four-

teenth Amendments of the United States Constivu-

non.

id. at 421. That statement did not transform this Court's

double jeopardy test to an actual evidence test. Thigpen v.

Nos. 89-3070, 89-3071 and 89-3072, 11/3/89)

Moreover, in considering the language used by this Court

in Vitale, it should be noted that immediately before mak-

ing the above quoted statement, this Court discussed its

rulings in Brown v. Ohio, 432 U.S. 161 (1977), Harris v.

Oklahoma, 433 U.S. 682 (1977) and In Re Nielsen, 131

U.S. 176 (1889). None of these holdings is applicable here.

tioner pled guilty to that and

quently he was indicted for the theft of the car. Brown v.

Ohio, supra, 432 U.S. at 162-63. This Court found that

under the Blockburger test joy riding and auto theft as

defined by the Ohio Court of Appeals were the “same

statutory offense” within the meaning of the Double Jeop-

no proof beyond that required to convict for the greater

:

1

i

|

—_—- —_— ~~

18

The Court reached this conclusion because:

(Flor the purposes of the Double Jeopardy Clause,

we did not consider the crime generally described as

felony murder as a separate offense distinct from its

various elements. Rather, we treated a killing in the

course of a robbery as itself a separate statutory

offense and the robbery as a species of lesser

included offense.

Illinois v. Vitale, supra, 447 U.S. at 420. Finally, in In Re

Nielsen this Court was concerned with prosecutions for

unlawful cohabitation and adultery. This Court determined

that the elements of unlawful cohabitation were necessary

to establish the adultery. In Re Nielsen, supra, 131 U.S. at

187. Thus this Court’s Nielsen ruling which referred to

Morey v. Commonwealth, 108 Mass. 433, 435 (1871) (the

same decision to which the Blockburger court —

appears to stand for the proposition that a lesser-inc

offense is the “same offens-” as the greater. Therefore,

Nielsen applied the same traditional double jeopardy prin-

ciples as Brown v. Ohio, supra, 432 U.S. 161; Nielsen did

not establish a “same evidence” test. United States v. Rosen-

berg, supra, ___. F.2d —_ (D.C. Cir. Nos. 89-3070,

89-3071 and 89-3072 11/3/89). In sum, in light of these

three cases, this Court's use of the phrase “substantial claim

of double jeopardy” in Vitale, should not be equated with

the phrase dispositive claim of double jeopardy.

More recently, in Garrett v. United States, supra, 471 U.S.

at 790, this Court stated that it has “steadfastly” refused to

adopt the “single transaction” view of the Double Jeopardy

Clause.‘ A “single transaction” view should not be adopted

<The ime waiend in Os lone oe GE

which to in the state courts. eg. ¥

DeLuca, 108 NJ 98, 527 A.2d 1355, cart denied 484 U.S. 944 (1987),

State v. Padilla, 101 N.M. 58, 678 P.2d 686 (1984), an

divided Court sub nom. Fugate v. New Mexico, 470 aye

19

in this case either. Rather, the statutory analysis of Block-

burger should be applied.5 Since Manslaughter in the Sec-

ond Degree, Criminally Negligent Homicide and Assault in

the Third Degree coniain different statutory elements than

Driving While Intoxicated and Failure to Keep Right, the

offenses to which the defendant entered guilty pleas, the

homicide and assault prosecutions which would be permit-

ted under New York State Vehicle and Traffic Law Section

1800(d) should be permitted to go forward.

Conclusion

The decision of the New York State Court of Appeals in

the case at bar is an erroneous application of the Fifth

Amendment Double Jeopardy Clause. Manslaughter in the

Second Degree, Criminally Negligent Homicide and

Assault in the Third Degree are different offenses than

Driving While Intoxicated (in violation of New York State

>The Blockburger test is generally adequate to determine when two

offenses are not “the same offense” for purposes of the Double Jeop-

ardy Clause. However, as Blockburger itself stated, the test applies only

“where the same act or transaction constitutes a violation of two distinct

statutory provisions.” Blockburger v. United States, supra, 284 U.S. at

304 (emphasis added). Thus, there are cases involving compound-

predicate criminal offenses in which simple application of the Block-

burger test would find one offense to be a greater or lesser included

offense of another, i 1 1

‘.

20

Vehicle and Traffic Law Section 1192, Subdivision 3) and

Failure to Keep Right. It devalues the double jeopardy

clause to permit a defendant to plead guilty at arraignment

to vehicle and traffic offenses and thereby preclude pros-

ecution for homicide and assault when the latter contain

different elements than the offenses admitted by the

respondent. Moreover, the New York State Court of

Appeals’ expansive ruling grants the respondent enhanced

protection which is not warranted by this Court’s previous

rulings.

For all the foregoing reasons we ask this Court to reverse

the decision of the New York State court of Appeals and

remand this case for further appropriate proceedings.

Respectfully submitted,

WILLIAM V. GRADY

Dutchess County District Attorney

Petitioner (pro se)

Courthouse

10 Market Street

Poughkeepsie, New York 12601

(914) 431-1940

By: BRIDGET RAHILLY STELLER

Assistant District Attorney

Of Counsel

la

PETITIONER’S APPENDIX.

Constitutional and Statutory Provisions Involved

Constitutional Provisions:

The Fifth Amendment of the United States Constitution

provides:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases aris-

ing in the land or naval forces, or in the Militia,

when in actual service in time of War or public

danger, nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a

States Constitution provides:

—

2a 3a

2. When overtaking or passing pedestrians, ani-

mals or obstructions on the right half of the

roadway;

Statutory Provisions:

New York State Vehicle and Traffic Law Section 125

provides:

Motor Vehicles. Every vehicle operated or driven

upon a public highway which is propelled by any

power other than muscular power, except (a) electri-

cally-driven mobility assistance devices operated or

driven by a person with a disability, (b) vehicles

which run only upon rails or tracks, (c) snowmobiles

as defined in article forty-seven of this chapter, and

(d) all terrain vehicles as defined in article forty-

eight-B of this chapter. For the purposes of title four,

the term motor vehicle shall exclude fire and police

vehicles. For the purposes of titles four and five the

term motor vehicles shall exclude farm type tractors

and all terrain type vehicles used exclusively for

agricultural purposes, or for snow plowing, other

than for hire, farm equipment, including self-pro-

pelled machines used exclusively in growing, har-

vesting or handling farm produce, and self-propelled

caterpillar or crawler-type equipment while being

operated on the contract site.

New York State Vehicle and Traffic Law Section 1 120(a)

provides:

(a) Upon all roadways of sufficient width a vehi-

cle shall be driven upon the right half of the road-

way, except as follows:

1. When overtaking and passing another vehicle

proceeding in the same direction under the rules

governing such movement, |

3. When an obstruction exists making it necessary

to drive to the left of the center of the highway;

provided, any person so doing shall yield the right of

way to all vehicles traveling in the proper direction

upon the unobstructed portion of the highway within

such distance as to constitute an immediate hazard;

4. Upon a roadway divided into three marked

lanes for traffic under the rules applicable thereon;

or

5. Upon a roadway restricted to one-way traffic.

New York State Vehicle and Traffic Law Section 1192

(which was in effect on October 3, 1987) provided:

1. No person shall operate a motor vehicle while

his ability to operate such motor vehicle is impaired

by the consumption of alcohol. Except as provided

in subdivision five-a of this section, a violation of

this subdivision shall be a traffic infraction and shall

be punishable by a fine of two hundred fifty dollars,

or by imprisonment in a penitentiary or county jail

for not more than fifteen days, or by both such fine

and imprisonment. A person who operates a vehicle

in violation of this subdivision after having been

convicted of a violation of any subdivision of this

section within the preceding five years shall be pun-

ished by a fine of not less than three hundred fifty

dollars nor more than five hundred dollars, or by

of not more than thirty days in a

II ation wes cperces 0 vebicis

A person who operates a vehicle in

4a

violation of this subdivision after having been con-

victed two or more times of a violation of any subdi-

vision of this section within the preceding ten years

shall be punished by a fine of not less than five

hundred dollars nor more than fifteen hundred dol-

lars, or by imprisonment of not more than ninety

days in a penitentiary or county jail or by both such

fine and imprisonment.

2. No person shall operate a motor vehicle while

he has .10 of one per centum or more by weight of

alcohol in his blood as shown by chemical analysis

of his blood, breath, urine or saliva, made pursuant

to the provisions of section eleven hundred ninety-

four of this chapter.

3. No person shall operate a motor vehicle while

he is in an intoxicated condition.

4. No person shall operate a motor vehicle while

his ability to operate such a motor vehicle is

impaired by the use of a drug as defined in this

chapter.

5. Except as provided in subdivision five-a of this

section, a violation of subdivision two, three or four

of this section shall be a misdemeanor and shall be

county jail for not more than one year, or by a fine

Sa

preceding ten years, shall be guiity of a felony, and

shall be punished by a fine of not less than five

hundred dollars and such other penalties as are pro-

vided in the penal law.

5-a. (a) A violation of subdivision one, two, three

or four of this section wherein the violator is operat-

ing an omnibus as defined in section one hundred

twenty-six of this chapter, taxicab as defined in

section one hundred forty-eight-a of this chapter, or

livery as defined in section one hundred twenty-

one-e of this chapter, and such omnibus, taxicab or

livery is carrying a passenger for compensation, or a

school bus as defined in section one hundred forty-

two of this chapter, carrying a passenger shall be a

misdemeanor punishable by a fine of not less than

five hundred dollars nor more than fifteen hundred

Jollars and such other penalties as are provided in

the penal law.

(b) A violation of subdivision one, two, three or

four of this section wherein the violator is operating

a truck over eighteen thousand pounds, a motor

vehicle carrying hazardous materials, as defined in

section three hundred eight of this chapter, for com-

mercial purposes, or any motor vehicle registered or

registrable under schedule F of subdivision seven of

section four hundred one of this chapter shall be a

misdemeanor punishable by a fine of not less than

five hundred dollars nor more than fifteen hundred

dollars and such other penalties as are provided in

the penal law.

(c) A person who operates a vehicle in violation of

any provision of this section which is punishable as

provided in paragraph (a) or (b) of this subdivision

after having been convicted of a violation of this

6a

section and penalized under paragraph (a) or (b) of

this subdivision within the preceding ten years, shall

be guilty of a felony, and shall be punishable by a

fine of not less than one thousand dollars nor more

than five thousand dollars and such other penalties

as are provided in the penal law.

(d) Nothing contained in this subdivision shall

prohibit the imposition of a charge of any other

felony set forth in this or any other provision of the

law for any acts arising out of the same incident.

(e) The sentences required to be imposed by para-

graph (a), (b) or (c) of this subdivision. shall be

imposed notwithstanding any contrary provision of

this chapter or the penal law; provided, however,

that if the district attorney upon reviewing the avail-

able evidence determines that the sentence which

would be mandated by paragraph (a), (b) or (c) of

this subdivision is not warranted, he may set forth

upon the record the basis for such determination and

consent to a disposition by plea of guilty to another

charge in satisfaction of such charge, and the court

may accept such plea.

6. Notwithstanding any moe of the penal

law, no judge or magistrate impose a sentence

of unconditional discharge for a violation of any

subdivision of this section nor shall he impose a

or

unless such conditional discharge or probation

is

accompanied by a sentence of a fine as provided in

this section.

7a

a violation of subdivision one of this section for

purposes of determining penalties imposed under

this section or for purposes of any administrative

action required to be taken pursuant to section five

hundred ten of this chapter; provided, however, that

such conduct, had it occurred in this state, would

have constituted a violation of any of the provisions

of this section.

8. The provisions of this section shall apply to the

places listed in subdivision (a) of section eleven

hundred of this chapter, except that for the purposes

of this section “parking lot” shall mean any area or

areas of private property, including a driveway, near

or contiguous to and provided in connection with

premises and used as a means of access to and

egress from a public highway to such premises and

having a capacity for the parking of four or more

motor vehicles. The provisions of this section shall

not apply to any area or areas of private property

comprising all or part of property on which is situ-

ated a one or two family residence.

New York State Vehicle and Traffic Law Section 1 800(d)

provides:

A conviction of violation of any provision of this

chapter shall not be a bar to a prosecution for an

assault or for a homicide committed by any person

in operating a motor vehicle or motorcycle.

New York State Penal Law Section 10.00 (9) provides:

“Physical injury” means impairment of physical

condition or substantial pain.

8a

New York State Penal Law Section 15.05 provides:

The following definitions are applicable to this

chapter:

1. “Intentionally.” A person acts intentionally

with respect to a result or to conduct described by a

statute defining an offense when his conscious

objective is to cause such result or to engage in such

conduct.

2. “Knowingly.” A person acts knowingly with

respect to conduct or to a circumstance described by

a statute defining an offense when he is aware that

his conduct is of such nature or that such circum-

stance exists.

3. “Recklessly.” A person acts recklessly with

respect to a result or to a circumstance by a statute

defining an offense when he is aware of and con-

sciously disregards a substantial and unjustifiable

risk that such result will occur or that such circum-

stance exists. The risk must be of such nature and

degree that disregard thereof constitutes a gross

deviation from the standard of conduct that a rea-

sonable person would observe in the situation. A

person who creates such a risk but is unaware

thereof solely by reason of voluntary intoxication

also acts recklessly with respect thereto.

4. “Criminal negligence.” A person acts with

criminal negligence with respect to a result or to a

circumstance described by a statute defining te

9a

constitutes a gross deviation from the standard of

care that a reasonable person would observe in the

situation.

New York State Penal Law Section 120.00 provides: A

person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another

person, he causes such injury to such person or to a

third person; or

2. He recklessly causes physical injury to another

person; or

3. With criminal negligence, he causes physical

injury to another person by means of a deadly

weapon or a dangerous instrument.

Assault in the third degree is a class A

misdemeanor.

New York State Penal Law Section 125.10 provides:

A person is guilty of criminally negligent homi-

cide when, with criminal negligence, he causes the

death of another person.

Criminally negligent homicide is a class E felony.

New York State Penal Law Section 125.12 provides:

A person is guilty of vehicular manslaughter in

the second degree when he:

(1) commits the crime of criminally negligent

homicide as defined in section 125.10, and

10a

(2) causes the death of such other person by oper-

ation of a vehicle in violation of subdivision two,

three or four of section eleven hundred ninety-two

of the vehicle and traffic law.

Vehicular manslaughter in the second degree is a

class D felony.

New York State Penal Law Section 125.15 provides:

A person is guilty of manslaughter in the second

degree when:

1. He recklessly causes the death of another per-

son; Or

2. He commits upon a female an abortional act

which causes her death, unless such abortional act is

justifiable pursuant to subdivision three of Section

125.05; or

3. He intentionally causes or aids another person

to commit suicide.

Manslaughter in the second degree is a Class C

felony.

New York State Criminal Procedure Law Section 40.30

provides:

1. Except as otherwise provided in this section, a

person “is prosecuted” for an offense, within the

lla

(a) Terminates in a conviction upon a plea of

guilty; or

(b) Proceeds to the trial state and a jury has been

impaneled and sworn, or, in the case of a trial

by the court without a jury, a witness is sworn.

2. Despite the occurrence of proceedings spec-

ified in subdivision one, a person is not deemed to

have been prosecuted for an offense, within the

meaning of section 40.20, when:

(a) Such prosecution occurred in a court which

lacked jurisdiction over the defendant or the

offense; or

(b) Such prosecution was for a lesser offense than

could have been charged under the facts of

the case, and the prosecution was procured by

the defendant, without the knowledge of the

appropriate prosecutor, for the purpose of

avoiding prosecution for a greater offense.

3. Despite the occurrence of proceedings spec-

ified in subdivision one, if such proceedings are

subsequently nullified by a court order which

restores the action to its prepleading status or which

12a

people to obtain a new accusatory instrument charg-

ing the same offense or an offense based upon the

same conduct, the nullified proceedings do not bar

further prosecution of such offense under any new

accusatory instrument obtained pursuant to such

court order or authorization.

te