The defendant was previously convicted of burglary in the first degree, upon a jury verdict, under Indictment Number 1319/2011. On appeal, the Appellate Division reversed the defendant’s conviction and ordered a new trial (160 AD3d 654 [2018]). The People now seek to retry the defendant on all eighteen counts contained in the captioned indictment. The defendant opposes the motion, arguing that the People are precluded from seeking to prosecute him further on Counts 6-18 of the indictment. Upon review of the parties’ respective motion papers, the trial transcript, and the court file, the People’s motion is granted as to Counts 1-4 and 6-18 of the indictment. The People are barred from retrying the defendant on Count 5, which accuses the defendant of committing petit larceny on February 21, 2010.BACKGROUNDThe indictment charges the defendant with burglary in the first degree and other related offenses in connection with three discrete incidents, the first of which occurred on February 21, 2010. At approximately 11:00 a.m. that morning, complainant Mark Grey (“Grey”) entered his residential building at 462 East 46th Street in Kings County and headed towards his basement-level apartment. To access his unit, Grey had to walk past his parents’ residence on the first floor; as he approached their apartment, Grey observed that their front door was “off the hinges.” When he peered inside, Grey saw glass shards scattered about the floor and three men inside the apartment, one of whom was wearing a white hockey mask, while the other two covered the bottom halves of their faces with bandanas. Upon confronting the men, Grey kicked the one wearing the hockey mask, who brandished a firearm and pointed it in Grey’s direction. The men then dragged Grey further inside the apartment and fled the location. A bloody tissue which did not belong to any member of the Grey family was later discovered in his parents’ bedroom under a pile of clothing. The Office of the Chief Medical Examiner tested DNA evidence found on the tissue and isolated an individual DNA profile, which the lab matched to the defendant.For his conduct on February 21, 2010, a grand jury charged the defendant with burglary in the first degree (PL §40.30 [4]), burglary in the second degree (PL §140.25 [2]), burglary in the third degree (PL §140.20), criminal trespass in the second degree (PL §140.15) and petit larceny (PL §155.25), under Counts 1-5 of the indictment, respectively.According to the People’s theory of the facts, at approximately 9:55 a.m. on July 9, 2010, the defendant approached complainant Mohammed Ahmed (“Ahmed”) and his cousin inside of 255 E. 98th St. in Kings County, pointed a gun at the two men and took Ahmed’s backpack, which contained a Rolex watch and two thousand dollars in United States currency. When the defendant fled the location, Ahmed chased after him, at which time the defendant discharged his firearm four times in Ahmed’s direction. Law enforcement agents subsequently recovered a firearm from a nearby yard. Officers also collected a shirt bearing the defendant’s DNA near the scene of the crime, which the defendant allegedly removed while he was being pursued by Ahmed. Ahmed later identified the defendant in a police-conducted lineup procedure as the individual who perpetrated the robbery.The grand jury received evidence of the defendant’s actions against Ahmed and indicted the defendant on the charges of robbery in the first degree (PL §160.15 [4]), robbery in the third degree (PL §160.05), grand larceny in the fourth degree (PL §155.30 [5]), petit larceny (PL §155.25), attempted murder in the second degree (PL §§110 and 125.25 [1]), attempted assault in the first degree (PL §§110 and 120.10 [1]), attempted assault in the second degree (PL §§110 and 120.05 [2]), and attempted assault in the third degree (PL §§110 and 120.00 [1]), which are set forth in Counts 6-13 of the indictment.The third incident for which the defendant is charged under the indictment allegedly occurred on October 4, 2010. At approximately 9:45 that morning, complainant Byron Holmes (“Holmes”) was preparing to transport $32,000 of his employer’s money from his workplace to the bank so that the funds could be deposited. When Holmes entered his van, the defendant approached him, displayed a chrome firearm, and instructed Holmes to move to the passenger side of the van. The defendant drove the van around the corner and parked the vehicle. He forced Holmes to lay on the floor bed in the back of the van, and used duct tape to bind Holmes’ hands. The defendant then drove the vehicle to another area within the confines of King County. There he rummaged through Holmes’ pockets and removed Holmes’ identification card and personal cash from Holmes’ person. The defendant also took the $32,000 designated for deposit. Referencing the confiscated identification card, the defendant threatened to kill Holmes and his family if Holmes reported the incident to the authorities.With respect to the October 4, 2010 incident, the grand jury charged the defendant with robbery in the first degree (PL §160.15 [4]), robbery in the third degree (PL §160.05), grand larceny in the third degree (PL §155.35), grand larceny in the fourth degree (PL §155.30 [5]), and petit larceny (PL §155.25), under Counts 14-18 of the indictment, respectively.A justice of this court reviewed the grand jury minutes in camera and found that the evidence presented was legally sufficient to establish every offense charged and to sustain the indictment. The defendant subsequently filed a motion to sever the trial of the first incident from that of the second and third incidents. Although the three criminal matters were properly joined in a single indictment pursuant to CPL §200.20 (2) (c), on May 9, 2013, the trial judge concluded that the defendant made the requisite showing that he had important testimony to give concerning the first incident and a genuine need to refrain from testifying on the other two matters and granted the defendant’s motion (CPL §200.20 [3] [b]). The judge directed that the defendant be tried for the February 21, 2010 incident (Counts1-5) before he was tried for the two later incidents.The defendant’s first trial commenced on May 13, 2013. On May 20, 2013, the trial judge apprised the parties that the court would charge the jury on the offense of burglary in the first degree (Count 1) and, in the alternative, burglary in the second degree (Count 2) as a lesser included offense. The court stated that it would not submit Count 3 (burglary in the third degree) or Count 4 (criminal trespass in the second degree) for the jury’s consideration, and it dismissed Count 5 of the indictment (petit larceny). On May 22, 2013, the jury found the defendant guilty of burglary in the first degree.At the defendant’s sentencing proceeding on September 9, 2013, the court adjudicated the defendant a second violent felony offender, pursuant to PL §70.04, and sentenced the defendant to twenty-two years’ incarceration and five years’ post-release supervision, to run consecutive to the sentences imposed upon the defendant in unrelated federal and Nassau County matters. The court also addressed the July 9, 2010 and October 4, 2010 incidents at the proceeding, both of which charged the defendant with a top count of robbery in the first degree. The court informed the defendant that, if he pleaded guilty to both counts of robbery in the first degree, the court would sentence him to one eight-year-term of incarceration on each count, both of which would run concurrent to the defendant’s sentence on the Nassau County matter.The defendant ultimately declined the court’s offer. At that time, the trial judge surmised that a trial on the remaining counts would require a significant amount of time and money, at the public’s expense. Based on his belief that the unserved sentences already imposed upon the defendant, in the aggregate, exposed the defendant to a sufficiently extensive period of incarceration to ensure public safety, the trial judge opined that another trial would serve no benefit. Consequently, the court dismissed Counts 6-18 of the indictment on interests of justice grounds, over the People’s objection.The defendant appealed from his judgment of conviction to the Appellate Division, Second Department, claiming that 1) the trial court deprived him of Due Process by disallowing one of the defense’s peremptory challenges on Batson grounds; 2) that the court’s Sandoval ruling deprived the defendant of a fair trial and violated his Fifth Amendment right against self-incrimination; and 3) that trial counsel was ineffective for acquiescing to the defendant’s demand that counsel call Rachel Grey, Mark Grey’s sister, as a witness for the defense, despite counsel’s prior knowledge that the witness’ testimony would pointedly contradict the defendant’s testimony and undermine his asserted defense of permission and authority.On appeal, the Appellate Division found the trial court’s Sandoval ruling to be erroneous because it allowed the People to cross-examine the defendant about the underlying facts of his robbery conviction in Nassau County, which was still pending on direct appeal (People v. Wahaab, 160 AD3d 654 [2d Dept 2018] [internal citations omitted]). The court concluded that the error could not be considered harmless. Accordingly, by decision and order dated January 23, 2018, the Appellate Division reversed the defendant’s conviction and ordered a new trial (id.).Present MotionThe People now seek to prosecute the defendant on all eighteen counts contained in the indictment at the defendant’s new trial. The defendant opposes the People’s application with respect to Counts 6-18 on the basis of the trial judge’s order dismissing those counts at the defendant’s sentencing proceeding on September 9, 2013.As an initial matter, where — as is the case here — an appellate court order reverses a judgment of conviction and orders a new trial on the accusatory instrument, “such accusatory instrument is deemed to contain all the counts and to charge all the offenses which it contained and charged at the time the previous trial was commenced, regardless of whether any count was dismissed by the court in the course of such trial, except (a) those upon or of which the defendant was acquitted or deemed to have been acquitted, and (b) those dismissed upon appeal or upon some other post-judgment order” (CPL §470.55 [1]).The exceptions enumerated in CPL §470.55 [1] implicate double jeopardy concerns. The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb” — language which is substantially mirrored in New York’s Double Jeopardy Clause (NY Const, art I, §6). The prohibition against double jeopardy protects an individual from being prosecuted for the same offense for which he has been acquitted or convicted, and prevents the government from “imposing multiple punishments for the same offense in successive proceedings” (Matter of Suarez v. Byrne, 10 NY3d 523, 532 [2008], rearg denied 11 NY3d 753 [2008]).New York has also enacted statutory double jeopardy protections, which are codified in CPL §40.20. The Court of Appeals has indicated that, to the extent that the statutes provide greater protections than that afforded by the state or federal constitutions, “they are to be found in CPL 40.20 (2), not CPL 40.20 (1)” (Polito v. Walsh, 8 NY3d 683, 690 [2007]). CPL §40.20 (2) provides that a “person may not be separately prosecuted for two offenses based upon the same criminal transaction” unless one of the four exceptions enumerated in the statute applies. Here, the People only seek to try the defendant for offenses charged under the original indictment, the retrial of which does not constitute a “second prosecution.” It is therefore unnecessary for the court to examine the additional safeguards prescribed by New York’s statutory double jeopardy provisions.Counts 1-5The defense does not refute the People’s contention that the defendant may be retried on Counts 1-5 of the indictment. While the court concurs with the parties’ assessment as to Counts 1-4, for the following reasons, the court finds that the defendant may not be subjected to further prosecution on Count 5, which accuses the defendant of committing petit larceny on Feb. 21, 2010.At the defendant’s first trial, only Counts 1 and 2 were submitted to the jury, which convicted the defendant of burglary in the first degree under Count 1. Because a “defendant who succeeds in having a conviction reversed on appeal may be retried for the same offense without contravening double jeopardy principles,” there is no impediment to the retrial of the defendant on Count 1 (Matter of Suarez at 532-533 [internal citation omitted]).The jury did not return a verdict on Count 2, burglary in the second degree, which was submitted as a lesser included offense of Count 1. Under New York’s “mandatory ‘acquit-first’ instruction, a jury must deliberate on charges in decreasing order in culpability, unanimously acquitting on the more serious crime before considering any lesser included offense” (Matter of Suarez at 534 [internal citations omitted]). Where, as here, the jury convicted the defendant on the greater offense, “it was never given an opportunity to return a verdict on the [lesser offense], and retrial on the unreached counts does not violate double jeopardy” (People v. Hernandez, 41 AD3d 358, 360 [1st Dept 2007] [internal citations omitted]).Counts 3-5 are deemed to have been dismissed by the trial court since they were not submitted to the jury (CPL §300.40 [7]). However, under CPL §470.55, the determinative factor is not whether the count was ‘dismissed’ as a matter of procedure, but whether the non-submission of the charge constituted an acquittal thereof. The “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” (People v. Biggs, 1 NY3d 225, 229 [2003] [internal citations omitted]). Conversely, where the court’s decision was based on grounds unrelated to legal insufficiency, the defendant cannot be said to have been acquitted of the charge and double jeopardy will not bar reprosecution on the count (People ex rel Maula v. Freckleton, 176 AD2d 590, 591 [1st Dept 1991], lv denied 78 NY2d 862 [1991], citing Matter of Pastrana v. Baker, 55 NY2d 315 [1982]; see Matter of Lionel F., 152 AD2d 571 [2d Dept 1989], affd on other grounds 76 NY2d 747 [1990]). It is not the form of the judge’s action in dismissing a given count that determines whether the dismissal constitutes an acquittal; rather, the deciding factor is whether the judge’s ruling “represents a resolution, correct or not, of some or all of the factual elements of the offense charged” (Biggs at 229 [internal citation omitted]).According to the stenographic minutes for May 20, 2013, the court did not charge burglary in the third degree (Count 3) because it believed that there was no reasonable view of the evidence that would allow the fact-finder to determine that the location of occurrence was anything other than a dwelling. The court explained that Count 4, which charged the defendant with criminal trespass in the second degree, would not be submitted for the jury’s consideration because the proof adduced at trial compelled the conclusion that whoever entered the location did so with the intent to commit a crime therein. The record demonstrates that the trial judge found legally sufficient evidence to support Counts 3 and 4, so the defendant cannot be said to have been acquitted or deemed acquitted thereof. Thus, double jeopardy does not bar future prosecution of the defendant on either count.Notwithstanding the People’s contention to the contrary, double jeopardy insulates the defendant from being subjected to further prosecution on Count 5, which accuses the defendant of committing petit larceny on February 21, 2010. The minutes reveal that the trial judge dismissed Count 5 because the indictment charged the defendant with stealing property belonging to Mark Grey, whereas the trial evidence established that the stolen property belonged to his parents, Ulrin and Josephine Grey. The only permissible inference to be drawn from the record is that the court dismissed Count 5 due to insufficient evidence, which is equivalent to an acquittal. Consequently, Count 5 remains dismissed from the indictment and the People are barred from retrying the defendant thereon.Counts 6-18On May 8, 2013, the court opened a Wade/Dunaway hearing, which pertained to certain evidence related to the second and third incidents. After the People had concluded their case, the court paused the proceeding to entertain the defendant’s severance motion, which it granted. Because the issues to be addressed in the hearing were unrelated to the first incident, the court decided to hold the hearing in abeyance pending the outcome of the defendant’s trial on Counts 1-5. Although the defendant has never been tried on Counts 6-18 of the indictment, he claims that the People cannot seek to prosecute him for the offenses charged therein because the trial court dismissed those counts by means of a post-judgment order for purposes of CPL §470.55 (1) (b).1As a preliminary matter, both parties mistakenly perceive the judgment entered against the defendant following his conviction at the trial of Counts 1-5 to be a ‘judgment’ on Counts 6-18. “A judgment is comprised of a conviction and sentence imposed thereon and is completed by imposition and entry of the sentence” (CPL §1.20 [15]). Although Counts 1-5 and Counts 6-18 were charged in a single indictment, the two sets of counts were severed for purposes of trial. The defendant’s conviction at his trial on Counts 1-5 cannot be deemed to constitute a ‘conviction’ with respect to Counts 6-18, for which there has never been a trial, let alone a verdict. Consequently, a judgment on Counts 6-18 could not have existed at the time the trial judge dismissed them, rendering CPL §470.55 (1) (b) inapplicable.2Nor would the future prosecution of the defendant on Counts 6-18 offend double jeopardy principles, as the defendant has not suffered jeopardy as to those counts. When an individual is charged with the commission of a crime by an accusatory instrument filed in a state or federal court, jeopardy attaches when the action terminates in a conviction pursuant to a guilty plea or, “[p]roceeds to the trial stage 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” (CPL §§40.30 [1] [a], [b]).To the extent that the defendant seemingly claims that the trial court conditioned the People’s ability to try the defendant for the second and third incident upon a successful appeal from the court’s order of dismissal, he misconstrues the court’s language.3 In any event, CPL §470.55 (1) dictates which counts are deemed to be contained in the indictment upon an appellate court’s decision ordering a new trial on the accusatory instrument; a trial court may not impose additional conditions not prescribed in the statute.Accordingly, the People may seek to prosecute the defendant on Counts 1-4 and 6-18 of the indictment, but are barred from retrying the defendant on Count 5. Whether the trial of Counts 1-4 is to remain severed from the trial of Counts 6-18 is a matter respectfully referred to the trial judge for decision.This decision constitutes the order of the court.
