People v. Ressler, 17 N.Y.2d 174, 216 N.E.2d 582, 269 N.Y.S.2d 414 (1966)

Sellers, Jeffrey

English

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Buffalo Law Review Volume 16 Number 2 Article 11 1-1-1967 Criminal Procedure—Double Jeopardy—Retrial for Greater Degree of Offense Charged After Reversal of Conviction for Lesser Degree of Same Offense Constitutes Double Jeopardy Jeffrey Sellers Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Constitutional Law Commons, and the Criminal Procedure Commons Recommended Citation Jeffrey Sellers, Criminal Procedure—Double Jeopardy—Retrial for Greater Degree of Offense Charged After Reversal of Conviction for Lesser Degree of Same Offense Constitutes Double Jeopardy, 16 Buff. L. Rev. 435 (1967). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol16/iss2/11 This Recent Case is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. RECENT CASESCRIMINAL PROCEDURE-DouBLE JEOPARDY-RETRIAL FOR GREATERDEGREE OF OFFENSE CHARGED AFTER REVERSAL OF CONVICTION FOR LESSERDEGREE OF SAME OFFENSE CONSTITUTES DOUBLE JEOPARDY 'In a second degree murder trial, the jury was charged as to second degreemurder, and first and second degree manslaughter. The jury found defendantRessler guilty of first degree manslaughter. Defendant appealed this convictionto the Appellate Division, which remanded for a Huntley-type hearing.' Atthe hearing Ressler's confession was found voluntary 2 Ressler appealed fromthis finding, obtained a reversal on the law, and a new trial.3 From the orderof retrial both parties appealed. In affirming and setting guidelines for the newtrial, the Court of Appeals held, "Inasmuch as defendant was tried on anindictment for murder in the second degree, but was convicted of first degreemanslaughter . . . he cannot again be tried on a more serious charge thanmanslaughter in the first degree based on the same indictment." People v.Ressler, 17 N.Y.2d 174, 216 N.E.2d 582, 269 N.Y.S.2d 414 (1966).Prior to 1888 the general rule in New York was, "[I] f the jury finds theprisoner guilty on one count and says nothing in their verdict concerning theother counts [in the indictment], it will be equivalent to a verdict of not guiltyon such counts."4 If the defendant appealed, "the reversal of the convictiondid not disturb the verdict of acquittal" with regard to the charges upon whichthe jury remained silent.5 However, the defendant was considered to havewaived his constitutional protection against double jeopardy, 6 as to thosecharges which he had been deemed acquitted.7 This rule was changed in 1888when the Code of Criminal Procedure8 was interpreted by the New York Courtof Appeals in People v. Palmer.9 The question presented by Palmer was,whether ... the defendant, having been found guilty ... of a lowerdegree of the crime than charged in the indictment [and having] suc-ceeded in reversing the judgment . . . can be tried again under theindictment without regard to -the former trial and conviction. 101. People v. Ressler, 23 A!).2d 514, 256 N.Y.S.2d 95 (3d Dep't 1965) (Hearing todetermine voluntariness of confession, by county court without a jury, in accord with pro-cedure prescribed in People v. Huntley, 15 N.Y.2d 72, 204 N.E.2d 179, 255 N.Y.S.2d 838(1965); also called Jackson-Denno hearing).2. People v. Ressler, 45 Misc. 2d 995, 258 N.Y.S.2d 532 (Rennesalear County Ct. 1965).3. People v. Ressler, 24 A.D.2d 7, 261 N.Y.S.2d 823, modified, 24 A.D.2d 727, 262N.Y.S.2d 1022 (3d Dep't 1965).4. Guenther v. People, 24 N.Y. 100, at 101 (1861).5. People v. Dowling, 84 N.Y. 478, at 483 (1881).6. N.Y. Const. art. I, § 6: "No person shall be subject to be twice put in jeopardyfor the same offence. . ."7. People v. Dowling, 84 N.Y. 478, at 484 (1881).8. N.Y. Code Crim. Proc.§ 464. The granting of a new trial places the parties in the same position asif no trial bad been had. All the testimony must be produced anew; and the formerverdict cannot be used or referred to, either in evidence or in argument.§ 544. When a new trial is ordered it shall proceed in all respects as if no trialbad been had.9. 109 N.Y. 413, 17 N.. 213 (1888).10. Id. at 416, 17 N.E. at 213.BUFFALO LAW REVIEWThe Court answered this question in the affirmative, reasoning that section 36of the Penal Code, 1 which provided that "where a prisoner is ... convicted...for a crime consisting of different degrees, he cannot thereafter be indictedor tried for the same crime, in any other degree," applies only where judg-ment of conviction remains unreversed,'1 2 and that sections 464 and 544 of theCode of Criminal Procedure dictate that:The effect of defendant's appeal is merely to continue the trial underthe indictment in the appellate court; and if reversal of the ... con-viction follows ... the record of the former trial, has been annulledand expunged... and [the proceedings] are as though they never hadbeen; while the indictment is left to stand as to the crime ... charged... as -though there had been no trial.18The United States Supreme Court in Kring v. Missouri4 was confrontedwith a Missouri constitutional provision similar to the New York Code lrelied on in Palmer.'6 The Court held this provision unconstitutional as anex post facto law, but in its dicta indicated that it would not so hold under thedouble jeopardy clause of the fifth amendment, as applied to the states throughthe due process clause of the fourteenth amendment.' 7 After Palmer,'8 takingan appeal from a criminal conviction became a "gamble" for the defendant. Inorder to correct a legal error at trial, the defendant had to subject himself to anew trial for the greater degree of the crime for which he had previously beenacquitted, in order to gain a reversal of the lesser charge upon which he hadbeen convicted. 19 This rule differs from the federal rule, applied in similarsituations, as set forth in Green v. United States.20 In Green the SupremeCourt2l held that,the law should not . . .place the defendant in such an incredibledilemma; [for] conditioning an appeal of one offence on a coercedsurrender of a valid plea of former jeopardy on another offenceexacts a forfeiture in plain conflict with the constitutional bar againstdouble jeopardy.22Of the thirty-five states, other than New York, which have passed on thisquestion, seventeen hold in accord with the federal rule and eighteen hold11. Now N.Y. Pen. Law § 32.12. People v. Palmer, 109 N.Y. at 419, 17 N.E. at 215 (1888).13. Id. at 419-20, 17 N.E. at 215.14. 107 U.S. 221 (1882).15. N.Y. Code Crim. Proc. §§ 464, 544, quoted supra note 8.16. 109 N.Y. 413, 17 N.E. 213 (1888).17. Kring v. Missouri, 107 U.S. 221 (1882).18. 109 N.Y. 413, 17 N.E. 213 (1888).19. See, e.g., People v. Erode, 4 N.Y.2d 617, 152 NE.2d 77, 176 N.Y.S.2d 649 (1958);People v. McGrath, 202 N.Y. 445, 96 N.E. 92 (1911); People v. McCarthy, 110 N.Y. 309, 18N.E. 128 (1888); People v. Palmer, 109 N.Y. 413, 17 N.E. 213 (1888).20. 355 U.S. 184 (1957).21. Mr. Justice Black delivered the opinion for the majority of five, Mr. JusticeFrankfurter for the four dissenters.22. 355 U.S. at 193-94.RECENT CASESin accord with New York,28 i.e., that on a reversal of a conviction for a lesserdegree of the crime than charged in the indictment, a new trial on the originalindictment is permitted.2 4 The United States Supreme Court has said in thepast that this type of reprosecution by a state is not prohibited by the doublejeopardy clause of the fifth amendment as applied to the states by the four-teenth amendment25 However,the Court has not hesitated to re-examine past decisions accordingthe Fourteenth Amendment a less central role in the preservation ofbasic liberties than that which was contemplated by its Framers whenthey added the Amendment to our constitutional scheme 26In the instant case, the majority of the Court reasoned that the federal rulehad been made mandatory upon the states. The Court was led to -this conclusionby the trend of the recent United States Supreme Court decisions. Thesedecisions indicate that an increasing number of the guarantees of the Bill ofRights are being selectively incorporated into the due process clause of thefourteenth amendment and thus are made applicable to the states.2 7 The Courtalso relied heavily on the decision of the Second Circuit Court of Appeals inUnited States ex rel. Hetenyi v. Wilkins. 8 In Hetenyi,29 the defendant wasconvicted in a New York court and placed in a situation similar to that ofRessler in the instant case. The United States Court of Appeals in reachingits decision as to whether this type of reprosecution by a state violates thedue process clause of the fourteenth amendment considered three alternativestandards, in applying the concept of selective incorporation:3 0 the Federal, theBasic Core and that of Fundamental Fairness. 31 It held that "under any ofthe three alternative standards the conclusion is unavoidable that New Yorktransgressed the federal constitutional limitations on its power to reprosecutean individual for the same crime."132The concurring opinion in the instant case reasons that this change, fromthe state to the federal rule, should be based upon the double jeopardy pro-vision of the New York State Constitution83 rather than the due process clauseof the fourteenth amendment of the United States Constitution. This opinionfails to take into account the approval of the state rule on constitutional grounds,prior to the instant case, by the New York Court of Appeals in a longline of decisions.3 4 The dissenting opinion contends that it is for the legislature23. Id. at 216 n.4.24. People v. Palmer, 109 N.Y. 413, 17 N.E. 213 (1888).25. Brantley v. Georgia, 217 U.S. 284, at 285 (1910).26. Malloy v. Hogan, 378 U.S. 1, at 5 (1964).27. See cases cited in Malloy v. Hogan, 378 U.S. 1, at 4-6 (1964); accord, Pointer v.Texas, 380 U.S. 400 (1965); Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964).28. 348 F.2d 844 (2d Cir. 1965).29. Ibid.30. Cf. Twining v. New Jersey, 211 U.S. 78 (1908).31. United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844, at 855 (2d Cir. 1965).32. Id. at 856. But see Comment, 41 N.Y.U.L. Rev. 821 (1966).33. N.Y. Const art. I, § 6.34. See People v. Erode, 4 N.Y.2d 617, 176 N.Y.S.2d 649 (1958); People v. Bellows,437BUFFALO LAW REVIEWto change this law, if any change is to be made, and not the Court. However, ifthe United States Supreme Court holds that this form of reprosecution by thestates is prohibited by the United States Constitution,85 as the majority inthe instant case reasoned it eventually would, the New York rule as to the ap-plicability of the defense of double jeopardy in this form of reprosecution willbe supplanted by the federal rule. In this event, neither the New York Court ofAppeals nor its legislature will be the lawmaking body.The Supreme Court has not, to this day, invalidated any convictions ob-tained in the state courts on the ground that the state has transgressed the fed-eral constitutional limitations on its power to reprosecute an individual for thesame crime.3 6 The Court has dealt with these situations on a case by case basis,ruling that there was no violation of double jeopardy when a retrial was hadafter: (1) discharge of a hung jury;8 7 (2) reversal of a conviction althoughpart of the sentence had been served; 38 (3) an appeal by the state from aconviction for second-degree murder;30 (4) a grant of mistrial after an unex-pected refusal of co-defendant to testify for the prosecution; 40 (5) defendantwas convicted of one of the two offences charged which were statutorily treatedas one offence with two different penalties, and retrial was had on both charges; 41and (6) different offences occurring on the same occasion were prosecutedat different trials.42 Although the Court has refused to accept the contention ofa person in a state court, that he has been subjected to treatment in violationof the double jeopardy provision of the fifth amendment, it has not precludedthe existence of a situation in which such allegation would be accepted.43 justsuch a situation was present in the instant case. Ressler was forced to abandonhis constitutional protection against double jeopardy (to a charge of which hehad already been acquitted) in order to obtain a new trial on the charge uponwhich he was convicted. The trend of the United States Supreme Court deci-sions, referred to above, the treatment by that Court of these double jeopardy281 N.Y. 67, 22 N.E.2d 238 (1939); People v. McGrath, 202 N.Y. 445, 96 N.E. 92 (1911);People v. Palmer, 109 N.Y. 413, 17 N.E. 213 (1888); People v. Fiorillo, 20 A.D.2d 899,248 N.Y.S.2d 958 (2d Dep't 1964); People v. Wheeler, 79 App. Div. 396 (4th Dep't 1903).35. U.S. Const. amend. V: "nor shall any person be subject for the same offence tobe twice put in jeopardy of life or limb . .. ."U.S. Const. amend. XIV: "No state shall deprive any person of life, liberty, or property,without due process of law . . . '36. United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844, at 850 (2d Cir. 1965).37. Dreyer v. Illinois, 187 U.S. 71 (1902).38. Murphy v. Massachusetts, 177 U.S. 155 (1900).39. Palko v. Connecticut, 302 U.S. 319 (1937).40. Brock v. North Carolina, 344 U.S. 424 (1953).41. See Chichos v. Indiana, 35 U.SJ,. Week 4003 (U.S. Nov. 14, 1966). Mr. JusticeFortas, dissenting, noted, "This is a State case. But the Fourteenth Amendment's requirementof due process includes a prohibition of this kind of heads-you-lose, tails-you-lose trial andappellate process." Id. at 4005.42. Hoag v. New Jersey, 356 U.S. 464 (1958) (Warren, Ch.J., dissenting, consideredthe situation violative of double jeopardy protection. Id. at 473) ; see also Ciucci v. Illinois,356 U.S. 571 (1958) (dissenting opinion to same effect; id. at 573).43. United States Constitution Annotated, Doc. No. 758, 88th Cong., Ist Sess., at 1273(1963).RECENT CASESquestions on a case by case basis, the refusal of the Court to deny the applica-bility of the double jeopardy clause of the fifth amendment to the states, andthe dissents lodged in Williams v. Oklahoma,44 Ciucci v. Illinois,4 5 and Chichosv. State46 indicate that the United States Supreme Court, when confrontedwith this issue, will decide in *accord with the prediction made by the NewYork Court of Appeals in the instant case.JEFFREY SELLERSCRIMINAL PROCEDURE-MnRANnA: THE APPLICATION OF THE FIFTHAMENDMENT RIGHT AGAINST SELF-INCRIMINATION TO CONFESSIONS-ACHANGE IN APPROACH.Ernesto Miranda was arrested on suspicion of kidnapping and rapingan eighteen year old girl. After being identified by the victim, he was escortedto a special interrogation room to be questioned by police officers. Miranda wasnot advised of his right to have an attorney present, nor made aware of hisprivilege against self-incrimination. Though at first denying his guilt, withintwo hours Miranda gave a detailed confession, admitting and describing thecrime. At his trial before a jury, the confession was admitted into evidenceover the objection of defense counsel. Subsequently, Miranda was found guiltyas charged. On appeal, the Supreme Court of Arizona affirmed the conviction,holding that Miranda's constitutional rights were not violated in obtainingthe confession.' The United States Supreme Court, in a 5-4 decision, reversedthe conviction. Held, the prosecution may not use statements, whether exculpa-tory or inculpatory, stemming from custodial interrogation2 of the defendant,unless it demonstrates the use of procedural safeguards which effectively pro-tect the defendant's privilege against self-incrimination. Unless equally effectivesafeguards are adopted, the following procedures must be employed: prior to anyquestioning, thie person must be informed in clear and unequivocal termsthat he has the right to remain silent, and that anything said can and willbe used against him in court. He must be clearly informed that he has theright to consult with a lawyer and to have the lawyer present during the in-terrogation. Also, it is necessary to inform him that if he is indigent, a lawyerwill be appointed to represent him. If the individual indicates in any manner,at any time prior to or during questioning, that he wishes to remain silent,the interrogation must cease. Similarly, the opportunity to exercise his right44. 358 U.S. 576, 587 (1959).45. 356 U.S. 571, 573 (1958).46. 35 U.S.L. Week 4003, 4004 (Nov. 14, 1966).1. State v. Miranda, 98 Ariz. 18, 401 P.2d 721 (1965).2. Custodial interrogation is defined by the Court as "questioning initiated by lawenforcement officers after a person has been taken into custody or otherwise deprived ofhis freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966).

Criminal Procedure—Double Jeopardy—Retrial for Greater Degree of Offense Charged After Reversal of Conviction for Lesser Degree of Same Offense Constitutes Double Jeopardy

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Criminal Procedure—Double Jeopardy—Retrial for Greater Degree of Offense Charged After Reversal of Conviction for Lesser Degree of Same Offense Constitutes Double Jeopardy

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