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

970
KA 13-01050
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ERIC J. GARDNER, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY LEIGH HALLENBECK OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered August 12, 2013. The judgment convicted
defendant, upon a jury verdict, of reckless endangerment in the first
degree and criminal possession of a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of criminal possession of a weapon in the second degree, and
dismissing the third count of the indictment, and as modified the
judgment is affirmed.

     Memorandum: Defendant was convicted, following a jury trial, of
reckless endangerment in the first degree (Penal Law § 120.25) and
criminal possession of a weapon in the second degree (§ 265.03 [3]).
The charges arose from an incident in which defendant discharged a
firearm into the bedroom window of an occupied, residential home in
Oswego County during the early morning hours of March 5, 2012.
Defendant was apprehended by the police later that day at a motel in
Onondaga County, where a handgun was found in his vehicle. Prior to
his trial in Oswego County Court, defendant was charged with and
pleaded guilty to, in Onondaga County Court, criminal possession of a
weapon in the second degree for the handgun recovered from his
vehicle. Defendant contends that his prosecution for criminal
possession of a weapon in Oswego County was barred by the protection
against double jeopardy set forth in the United States Constitution
and CPL 40.20. We agree, in part, and we therefore modify the
judgment accordingly.

     As a preliminary matter, we note that, despite defendant’s
invocation of both federal constitutional and state statutory grounds,
his double jeopardy contention on appeal is based solely on the
Federal Constitution inasmuch as he alleges only that he was punished
twice for the same offense, rather than that he was “prosecuted for
                                 -2-                           970
                                                         KA 13-01050

two offenses based upon the same act or criminal transaction” (CPL
40.20 [2]). We therefore address only the federal constitutional
ground. Moreover, although defendant failed to preserve that ground
for our review, we further note that a constitutional double jeopardy
claim may be raised for the first time on appeal (see People v Biggs,
1 NY3d 225, 231; People v Buffin, 244 AD2d 925, 925, lv denied 91 NY2d
924).

     It is well settled that a defendant has “the right not to be
punished more than once for the same crime” (People v Williams, 14
NY3d 198, 214, cert denied 562 US 947, citing United States v
DiFrancesco, 449 US 117, 129). “When successive prosecutions are
involved, the guarantee serves a constitutional policy of finality for
the defendant’s benefit . . . and protects the accused from attempts
to secure additional punishment after a prior conviction and sentence”
(Matter of Johnson v Morgenthau, 69 NY2d 148, 150 [internal quotation
marks omitted]). This case presents a prototypical instance of a
constitutional double jeopardy violation inasmuch as defendant was
prosecuted and convicted of a crime in Oswego County to which he had
pleaded guilty in Onondaga County. In both instances, the charge was
the same: criminal possession of a weapon in the second degree
pursuant to Penal Law § 265.03 (3).

     We reject the People’s contention that double jeopardy did not
attach because defendant was convicted in Oswego County before he was
sentenced on his guilty plea in Onondaga County. “[T]ermination of a
criminal action by entry of a guilty plea constitutes a previous
prosecution for double jeopardy purposes” (People v Searcy, 2 AD3d
1395, 1397 [internal quotation marks omitted]; see Morgenthau, 69 NY2d
at 150-151). We have examined the People’s remaining contention in
support of affirming the judgment, and we conclude that it is without
merit.

     Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that his conviction of reckless
endangerment is against the weight of the evidence with respect to the
element of intent (see generally People v Bleakley, 69 NY2d 490, 495).
We reject defendant’s further contention that the court erred in
denying his speedy trial motion. As part of his request for a preplea
investigation, defendant agreed that the resulting accrual of time
would not be charged to the People for speedy trial purposes (see
People v Wilcox, 295 AD2d 914, 915, lv denied 98 NY2d 703). The time
period not encompassed by that waiver totaled less than the six months
permitted by CPL 30.30 (1) (a). Finally, contrary to defendant’s
remaining contention, his sentence is not unduly harsh and severe.




Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
