| People v Tabor |
| 2011 NY Slip Op 06315 [87 AD3d 829] |
| August 19, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Dan Tabor,Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered July11, 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 matterof discretion in the interest of justice and on the law by reversing that part convicting defendantof assault in the second degree under indictment No. I 2008-104 and dismissing that indictmentand as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of twocounts of assault in the second degree (Penal Law § 120.05 [2]). The charges arose from anincident 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 assaultin the second degree for the attack upon the female victim (indictment No. I 2004-483), and thatmatter proceeded to trial in 2005. Both victims testified at trial, and defendant was convicted ascharged. We reversed that judgment of conviction on the ground that County Court erred insummarily denying defendant's request to proceed pro se, and we granted defendant a new trial(People v Tabor, 48 AD3d1096 [2008]).
Prior to commencing the second trial, the People obtained a second indictment in 2008charging defendant with assault in the second degree with respect to the male victim in the 2004attack (indictment No. I 2008-104), and the two indictments were joined for trial based on thePeople's contention that "[b]oth indictments alleged defendant committed the same crime duringthe same criminal transaction." Defendant now appeals from the judgment of conviction upon theconsolidated indictment.
Defendant failed to preserve for our review his contention that the People were barred byCPL 40.40 from prosecuting him in the second trial for the assault upon the male victim becausethe 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 vPrescott, 104 AD2d 610, 611 [1984], affd 66 NY2d 216 [1985], cert denied475 US 1150 [1986]; see generally People v Biggs, [*2]1 NY3d 225 [2003]). We exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]), andwe conclude that defendant's contention has merit.
"When (a) one of two or more joinable offenses [that are joinable in a single accusatoryinstrument against a person by reason of being based upon the same criminal transaction] ischarged in an accusatory instrument, and (b) another is not charged therein, or in any otheraccusatory instrument filed in the same court, despite possession by the [P]eople of evidencelegally 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 sametransaction and involve different and distinct elements 'under circumstances wherein no violationof the double jeopardy principle can validly be maintained but the equities nevertheless seem topreclude separate prosecutions' " (People v Lindsly, 99 AD2d 99, 101-102 [1984],quoting People v Dean, 56 AD2d 242, 246 [1977], affd 45 NY2d 651 [1978],rearg denied 46 NY2d 940 [1979]). Here, in their motion to consolidate the twoindictments, made after the judgment convicting defendant upon the 2004 indictment wasreversed, the People correctly conceded that both assault charges were part of the same criminaltransaction. 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 thetime of commencement of the prior trial, prosecution of the [assault charge against the malevictim] is barred by CPL 40.40" (People v Cole, 306 AD2d 558, 560 [2003], lvdenied 100 NY2d 515 [2003]). We agree with defendant that, "[w]here the evidence againsta person is in the prosecutor's hands, he [or she] may not—as a player in a game ofchance—deal out indictments one at a time" (Lindsly, 99 AD2d at 102). Wetherefore 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.Present—Scudder, P.J., Smith, Peradotto, Lindley and Green, JJ.