Defendant Tony Canales by: David Cooper, Esq., Brooklyn.
The Office of Charles J. Hynes, District Attorney for Kings County by: ADA Catherine Dagonese.
JOEL M. GOLDBERG, J.
The defendant's motion, dated February 3, 2012, to preclude his retrial on charges of Murder in the Second Degree (the sole remaining charge in the indictment as will be discussed below) as well as the lesser included offenses of Manslaughter in the First and Second Degrees on grounds of double jeopardy, upon consideration of the People's response, dated March 12, 201, and the defendant's reply, dated April 2, 2012, is granted to the extent indicated herein.
The defendant was convicted after a jury trial before this Court of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree and sentenced on October 16, 2008 to concurrent prison terms of 25 years to life on the murder charge and 15 years plus 5 years post-release supervision on the weapons charge. Following a hearing on the defendant's motion pursuant to CPL 440 to vacate the judgment, this Court vacated the murder conviction on the ground that the defendant received ineffective assistance of counsel but did not vacate the weapons conviction, finding that the deficient performance by defense counsel had no impact on the weapons conviction. People v Canales, 33 Misc.3d 1222(A), 2011 NY Slip Op 52078 (U) (2011). (For purposes of this decision, familiarity with that earlier decision will be assumed.)
In a motion to reargue that decision, the defendant raised for the first time the claim that retrial of the vacated murder conviction should be barred on double jeopardy grounds due to the legal insufficiency of the evidence at the first trial. In a decision and order of December 13, 2011, this Court declined to hear this double jeopardy claim, because it had not been raised in the original motion and noted that this claim required a new motion.
The People did not appeal from the vacatur of the murder conviction. The defendant's direct appeal from the weapons conviction is pending before the Appellate Division. Also pending is the defendant's application for leave to appeal from that part of this Court's decision denying the motion to vacate the weapons conviction.
The Present Motion
The defendant contends his retrial is barred by double jeopardy principles, contending that the evidence at his trial was legally insufficient to establish not only an intent to kill the deceased, whose name was Antonio Bruce, but also that the evidence was legally insufficient to establish either Manslaughter in the First or Second Degrees. (Although not contained in the indictment, the jury was charged on both degrees of manslaughter as lesser included offenses of the murder charge; however, because the jury convicted the defendant of the murder charge, the jury, as instructed, did not return a verdict on either of the manslaughter charges.)
The defendant's motion, as noted by the People in their answer, does not cite any specific authority, other than "double jeopardy, " for the Court, after vacating the murder conviction due to ineffective assistance of counsel, now to review the sufficiency of the trial evidence and bar a retrial. However, CPL 210.20 (1) (e) specifically provides the authority, upon motion of a defendant, to dismiss an indictment or any count thereof on the ground that the prosecution is barred pursuant to CPL 40.20 by reason of a previous prosecution, and, further CPL 210.20 (1) (h) allows for a dismissal based on the existence of some other legal impediment to the conviction other than what might be specifically covered in CPL 40.20.
The People assert that because this Court's prior decision vacating the murder conviction was based solely on a finding that the defendant received ineffective assistance of counsel, that decision does not now provide a basis to bar a retrial based on legally insufficient evidence despite the comments made by this Court in that decision concerning the lack of evidence to show that the defendant intentionally shot anyone. This Court agrees with the People's position. Because the issue of the legal sufficiency of the evidence to sustain the murder charge was not before this Court on the CPL 440 motion, whatever comments were made in that decision concerning the legal sufficiency of that evidence were dicta. What is now pending is a new motion requiring a review de novo of the legal sufficiency of the evidence which, for the reasons to be discussed below, this Court has a duty to decide.
First, it is without question, despite the lack of citation to statute or case law in the defense motion, that a trial court has the authority to consider a Constitutional double jeopardy claim and bar a retrial if appropriate. Because a defendant's right not to be retried in violation of double jeopardy principles would be violated not only by a conviction after the retrial but also by the very process and consequent ordeal of the retrial itself, a defendant whose pre-trial double jeopardy claim is denied by a trial court may with some exceptions, nevertheless, obtain a writ of prohibition in state court to bar a retrial. See e.g., Matter of Johnson v Morgenthau, 69 N.Y.2d 148 (1987); Matter of Rush v Mordue, 68 N.Y.2d 348, 354 (1986); Matter of DiLorenzo v Murtaugh, 36 N.Y.2d 306, 309-310 (1975); Matter of Kraemer v County Court of Suffolk County, 6 N.Y.2d 363 (1959); Matter of Hoffler v Jacon, 72 A.D.3d 1183 (3rd Dept. 2010); Matter of Lazartes v Walsh, 36 A.D.3d 917 (2d Dept. 2007). If unsuccessful in barring the retrial in state court, a defendant may seek a writ of habeas corpus in federal court prior to the second trial taking place in order to vindicate the double jeopardy protection of the Federal Constitution. See e.g., Greene v Massey, 437 U.S. 19');">437 U.S. 19 (1978); Sharpton v Turner, 964 F.2d 1284, 1286 (2nd Cir. 1992); Drayton v Hayes, 589 F.2d 117, 121 (2nd Cir. 1979).
If this Court had denied the defendant's CPL 440 motion to vacate the murder conviction, the defendant would have had an opportunity to raise on direct appeal both the issue of ineffective assistance of counsel as well as the present issue of the legal sufficiency of the evidence to support the murder conviction. It would have been possible on such an appeal for the defendant to have obtained a ruling that the evidence supporting the murder charge, and possibly also the lesser included manslaughter offenses, was indeed legally insufficient. In that event, there would have been no retrial. See Burks v United States, 437 U.S. 1 (1978) (where a defendant appeals seeking a new trial based on trial error and the ...