        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

996
KA 10-00362
PRESENT: SCUDDER, P.J., LINDLEY, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                                OPINION AND ORDER

SEAN SANDERS, DEFENDANT-RESPONDENT.


MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Monroe County Court (Alex R. Renzi,
J.), entered December 24, 2009. The order dismissed the indictment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Opinion by LINDLEY, J.: The People appeal from an order granting
that part of defendant’s omnibus motion seeking to dismiss the
indictment on double jeopardy grounds. For the reasons that follow,
we conclude that County Court properly determined that prosecution of
the indictment is barred by the Double Jeopardy Clauses of the federal
and state constitutions.

                                  I

     By way of background, in August 2002 defendant was charged by
felony complaint with assault in the second degree (Penal Law § 120.05
[1]) in connection with an incident in which he struck a man multiple
times with a golf club. Defendant thereafter waived indictment and
pleaded guilty in County Court (Marks, J.) to a superior court
information (SCI) charging him with assault in the second degree
pursuant to section 120.05 (2), a different subdivision of the statute
than was charged in the felony complaint. The case had not been
presented to the grand jury. Pursuant to the plea agreement,
defendant was sentenced in February 2003 to a determinate term of
imprisonment of five years and to five years of postrelease
supervision (PRS). He was released from prison in March 2007 and
commenced his period of PRS.

     On June 29, 2008, while still subject to PRS, defendant killed a
man by punching him in the back of the head during a fight at a
softball game. Charged with assault in the third degree and
                                 -2-                           996
                                                         KA 10-00362

criminally negligent homicide, defendant was convicted of both charges
following a nonjury trial in County Court (Connell, J.). The People
sought persistent felony offender status for defendant based on the
2003 assault conviction and a 1998 burglary conviction. Defendant
opposed persistent felony offender status on grounds that his 2003
guilty plea was to a charge not contained in the felony complaint and
not a lesser included offense, and that his right to be indicted by a
grand jury had thus been violated (see NY Const, art I, § 6; CPL
195.10 [1] [a]; see generally People v Johnson, 187 AD2d 990). The
court agreed with defendant, finding “that the defendant’s conviction
. . . in 2003 was jurisdictionally defective and a nullity and cannot
be counted in determining that he is a persistent felony offender”
(People v Sanders, 24 Misc 3d 1232[A], 2009 NY Slip Op 51693[U], *2).
Notably, defendant never moved to vacate the 2003 judgment of
conviction (see CPL 440.10 [1] [a]).

     Shortly after defendant was sentenced on his assault and
criminally negligent homicide conviction in 2009, the People presented
evidence of the August 2002 assault to a grand jury and obtained the
indictment at issue in this case, charging defendant with assault in
the first degree based upon the same incident for which he had pleaded
guilty to assault in the second degree in 2003. Defendant moved to
dismiss the indictment on statutory and constitutional double jeopardy
grounds. In response, the People argued that the 2003 judgment of
conviction was a nullity and that the reprosecution of defendant for
the same offense was therefore not barred by principles of double
jeopardy. County Court agreed with defendant, concluding that,
although County Court (Connell, J.) determined that the 2003 judgment
of conviction could not be used to support a finding that defendant
was a persistent felony offender, it remained valid for double
jeopardy purposes because it had not been vacated. The court also
concluded that prosecution of the indictment was barred by CPL 40.40
because it charged an offense that was joinable with the offense to
which defendant had previously pleaded guilty. We conclude that the
order should be affirmed.

                                  II

     The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution provides that no person shall be “twice put in
jeopardy of life or limb” for the same offense. There are three
separate protections afforded by the Double Jeopardy Clause. First,
“[i]t protects against a second prosecution for the same offense after
acquittal. [Second, i]t protects against a second prosecution for the
same offense after conviction. [Third,] it protects against multiple
punishments for the same offense” (North Carolina v Pearce, 395 US
711, 717, overruled in part on other grounds Alabama v Smith, 490 US
794; see People v Biggs, 1 NY3d 225, 228-229; see also Muldoon,
Handling a Criminal Case in New York, § 15:158 [2011 ed.]). The
United States Supreme Court has “consistently interpreted [the Double
Jeopardy Clause] to protect an individual from being subjected to the
hazards of trial and possible conviction more than once for an alleged
offense” (Missouri v Hunter, 459 US 359, 365 [internal quotation marks
omitted]).
                                 -3-                           996
                                                         KA 10-00362

     The New York State Constitution also contains a Double Jeopardy
Clause (see NY Const, art 1, § 6), which provides the same protection
as its federal counterpart (see Preiser, Practice Commentaries,
McKinney’s Cons Laws of NY, Book 11A, CPL 40.20). Defendants are
afforded greater protection, however, under statutory law. While the
constitutional Double Jeopardy Clauses merely prohibit separate
prosecutions for the same offense, CPL 40.20 (2) provides that no
person may “be separately prosecuted for two offenses based upon the
same act or criminal transaction . . . .” Even broader is the
protection afforded by CPL 40.40, which prohibits separate prosecution
of “joinable offenses” (see People v Tabor, 87 AD3d 829).

                                 III

     There can be no dispute that assault in the first degree under
Penal Law § 120.10 (1), as charged in the instant indictment, is the
same offense for double jeopardy purposes as assault in the second
degree under Penal Law § 120.05 (2), to which defendant pleaded guilty
in 2003 (see generally Blockburger v United States, 284 US 299).
Indeed, the People do not contend otherwise. The question presented
is whether the 2003 conviction bars further prosecution under
principles of double jeopardy, even though it was based on a
jurisdictionally defective SCI. We conclude that it does.

     Although the constitutional Double Jeopardy Clauses do not bar a
second prosecution where the prior judgment of conviction has been
vacated upon the defendant’s motion or appeal because of an error in
the proceedings (see Lockhart v Nelson, 488 US 33, 38; United States v
Tateo, 377 US 463, 465-467), the 2003 judgment of conviction has never
been vacated. The judgment of conviction is still on defendant’s
criminal record and would presumably remain on his record even if he
were convicted in the instant prosecution. We do not see how there
can be two separate convictions on defendant’s record for the same
offense without implicating the constitutional prohibition against
double jeopardy.

                                  IV

     Such a result is consistent with the general principles set forth
in Matter of Campbell v Pesce (60 NY2d 165). In Campbell, the
defendant was charged by felony complaint with robbery in the first
degree and criminal use of a firearm in the first degree and the
prosecutor moved to reduce the charges in local court to petit larceny
and criminal possession of a weapon in the fourth degree, both
misdemeanors (id. at 167). The defendant then pleaded guilty to petit
larceny in satisfaction of the charges (id.). That plea, however,
violated CPL 180.50 (2) (b), which prohibits reduction of an armed
felony offense to a misdemeanor unless the court determines that there
was no reasonable cause to believe that the defendant committed an
armed felony offense. After the misdemeanor plea was entered and
defendant had been sentenced to nine months in jail, the People moved
to vacate the conviction on the ground that the plea was entered in
violation of CPL 180.50 (Campbell, 60 NY2d at 168). The Court of
Appeals determined that the court erred in granting the motion and
                                 -4-                           996
                                                         KA 10-00362

reinstating the original charges, stating that, “[a]lthough acceptance
of the plea was illegal, there exists no statutory authority for the
court to vacate the plea and sentence at the prosecutor’s request and
reinstate the original charges” (id.). The Court thus concluded that
“the original plea and sentence must be reinstated, and further
criminal proceedings on the first felony charges are barred by double
jeopardy protection” (id. at 169 [emphasis added]; see also People v
Moquin, 77 NY2d 449, 452-453, rearg denied 78 NY2d 952; Matter of
Kisloff v Covington, 73 NY2d 445, 449).

     Here, we conclude that, inasmuch as the court lacked authority to
vacate defendant’s 2003 judgment of conviction even though it was
jurisdictionally defective, the People should not be permitted to
prosecute defendant again for the same offense. A second prosecution,
if allowed to proceed while the original conviction has not and cannot
be vacated except on defendant’s motion, would accomplish the same
result that was prohibited by the Court of Appeals in Campbell (60
NY2d at 168), where the defendant’s prior conviction was also
illegally entered (see also United States v McIntosh, 580 F3d 1222,
1224).

     Finally, we reject the People’s contention that the instant
prosecution is authorized by CPL 40.30 (2) (a), which provides that “a
person is not deemed to have been prosecuted for an offense, within
the meaning of section 40.20, when . . . [s]uch prosecution occurred
in a court [that] lacked jurisdiction over the defendant or the
offense.” Although that provision may be relevant to whether the
prosecution is barred by CPL 40.40, it is not a defense to defendant’s
constitutional double jeopardy claims, inasmuch as there can be no
statutory exception to a constitutional prohibition.

                                  V

     Accordingly, we conclude that the order should be affirmed.




Entered:   October 7, 2011                      Patricia L. Morgan
                                                Clerk of the Court
