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PEOPLE STATE NEW YORK v. BARNEY WOLFSON (06/16/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


June 16, 1969

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
BARNEY WOLFSON, APPELLANT

Order of the Supreme Court, Kings County, dated June 14, 1967, affirmed.

Christ, Acting P. J., Brennan, Rabin, Hopkins and Kleinfeld, JJ., concur.

Defendant was indicted on October 15, 1931 for murder in the first degree. During the trial he entered a plea of guilty to murder in the second degree and was sentenced on March 21, 1932, to a term of 25 years to life. About 30 years later he obtained a vacatur of the judgment on the ground that the guilty plea had been induced by a promise of a sentence of 20 years to life. He was rearraigned under the charge of murder in the first degree and a plea of guilty to murder in the second degree was again accepted. On May 9, 1961 he was resentenced to a term of 20 years to life; and in the present coram nobis proceeding he sought to vacate the judgment of May 9, 1961 on the ground that his rearraignment under the charge of murder in the first degree constituted double jeopardy. In our opinion, the application was properly denied. Under the circumstances herein defendant was not subjected to double jeopardy (United States v. Tateo, 377 U.S. 463). The holdings in United States ex rel. Hetenyi v. Wilkins (348 F. 2d 844, cert. den. sub nom. Mancusi v. Hetenyi, 383 U.S. 913) and People v. Ressler (17 N.Y.2d 174), both of which involved convictions after trial of a lesser degree of the crime charged, are not in point. In those cases a jury had been given the opportunity to find the defendant guilty of the higher degree of crime and the defendant had thereby been placed in jeopardy (see People v. Jackson, 20 N.Y.2d 440, 448). Defendant's other contentions have been considered and rejected.

19690616

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