# Petitioners Brief — Grady v. Corbin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0675%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1990 - **Citation:** 495 U.S. 508 ## Text 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 .......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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0675%3A5. Public record. Not legal advice.