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

822
KA 09-00154
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAN TABOR, DEFENDANT-APPELLANT.


FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (MARK C. CURLEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered July 11, 2008. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree (two
counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reversing that part convicting defendant of
assault in the second degree under indictment No. I 2008-104 and
dismissing that indictment and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts of assault in the second degree
(Penal Law § 120.05 [2]). The charges arose from an incident in 2004,
in which defendant struck a male victim and a female victim with a
chain, causing physical injury to both victims. In 2004, defendant
was indicted on one count of assault in the second degree for the
attack upon the female victim (indictment No. I 2004-483), and that
matter proceeded to trial in 2005. Both victims testified at trial,
and defendant was convicted as charged. We reversed that judgment of
conviction on the ground that County Court erred in summarily denying
defendant’s request to proceed pro se, and we granted defendant a new
trial (People v Tabor, 48 AD3d 1096).

     Prior to commencing the second trial, the People obtained a
second indictment in 2008 charging defendant with assault in the
second degree with respect to the male victim in the 2004 attack
(indictment No. I 2008-104), and the two indictments were joined for
trial based on the People’s contention that “[b]oth indictments
alleged defendant committed the same crime during the same criminal
transaction.” Defendant now appeals from the judgment of conviction
upon the consolidated indictment.
                                 -2-                           822
                                                         KA 09-00154

     Defendant failed to preserve for our review his contention that
the People were barred by CPL 40.40 from prosecuting him in the second
trial for the assault upon the male victim because the two assaults
were joinable offenses and, when the trial commenced on the first
indictment, the People had sufficient evidence to support a conviction
of that assault (see People v Prescott, 104 AD2d 610, 611, affd 66
NY2d 216, cert denied 475 US 1150; see generally People v Biggs, 1
NY3d 225). We exercise our power to review that contention as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]), and we conclude that defendant’s contention has merit.

     “When (a) one of two or more joinable offenses [that are joinable
in a single accusatory instrument against a person by reason of being
based upon the same criminal transaction] is charged in an accusatory
instrument, and (b) another is not charged therein, or in any other
accusatory instrument filed in the same court, despite possession by
the [P]eople of evidence legally sufficient to support a conviction of
the defendant for such uncharged offense, and (c) . . . a trial of the
existing accusatory instrument is commenced . . ., any subsequent
prosecution for the uncharged offense is thereby barred” (CPL 40.40
[2]). Thus, CPL 40.40 “prohibits a separate prosecution of joinable
offenses that arise out of the same transaction and involve different
and distinct elements ‘under circumstances wherein no violation of the
double jeopardy principle can validly be maintained but the equities
nevertheless seem to preclude separate prosecutions’ ” (People v
Lindsly, 99 AD2d 99, 101-102, quoting People v Dean, 56 AD2d 242, 246,
affd 45 NY2d 651, rearg denied 46 NY2d 940). Here, in their motion to
consolidate the two indictments, made after the judgment convicting
defendant upon the 2004 indictment was reversed, the People correctly
conceded that both assault charges were part of the same criminal
transaction. As noted, the male victim also testified at the first
trial. “Inasmuch as the [assault] charges were joinable and the
People possessed sufficient evidence to sustain those charges at the
time of commencement of the prior trial, prosecution of the [assault
charge against the male victim] is barred by CPL 40.40” (People v
Cole, 306 AD2d 558, 560, lv denied 100 NY2d 515). We agree with
defendant that, “[w]here the evidence against a person is in the
prosecutor’s hands, he [or she] may not--as a player in a game of
chance--deal out indictments one at a time” (Lindsly, 99 AD2d at 102).
We therefore modify the judgment with respect to indictment No. I
2008-104 accordingly.

     We need not address defendant’s remaining contention in light of
our determination.




Entered:   August 19, 2011                      Patricia L. Morgan
                                                Clerk of the Court
