12 September 2012

AD3: Harassment plea does not bar assault prosecution

People v Derouchie, 2012 NY Slip Op 06092 [available here]

As he was leaving Family Court (#1), the defendant in Derouchie "verbally accosted his estranged wife's friend" while swinging his cane at her. When nearby police officers intervened, he "punched an officer in the face, fracturing the orbital bone below the officer's left eye." (Derouchie at *1.) For his trouble, defendant earned two new charges: second-degree harassment for yelling/cane menacing at his ex-wife's friend, and felony assault for breaking the cop's face. The crimes were charged in separate accusatory instruments in the local town court. The assault was later waived to the grand jury, and defendant was indicted on that charge.

The harassment, being a minor violation-level offense, stayed in the local town court. And that's when the defendant's lawyer got creative. He had his client plead guilty to the harassment in town court, and then moved to dismiss the indictment charging felony assault in County Court. His argument? After a defendant has been charged with a crime and it is disposed of--either by a guilty plea, or a verdict after trial--Section 40.40(2) of the Criminal Procedure Law prohibits, on double-jeopardy grounds, the prosecution for a subsequent offense if the subsequent offense arose out of the same transaction as the earlier offense, and the People could have charged the subsequent crime when they charged the earlier crime but did not. This prevents prosecutors from getting more than one bite at the apple.

The attorney in Derouchie argued that, at the time his client pleaded guilty to the harassment, the felony assault was no longer pending in the town court, the People were barred from charging him with felony assault in a different court. A neat trick, and one that sometimes works. And it worked on the trial court.

The Third Department, alas, was not impressed, and reversed. The "defendant was initially charged with both offenses on the same day and in the same court," and therefore section 40.40(2) was not triggered. The felony assault was charged in the Town Court, and the fact that a grand jury indicted the felony and thus removed it from the Town Court's jurisdiction does not change that fact. That the assault was not technically pending in Town Court at the time of the defendant's plea to harassment does not change the analysis.

Still, a nice try, and some slick lawyering.

(#1) Of course it was Family Court.

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