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New York Appellate Court Reverses, Claiming Double Jeopardy


D was charged with first-degree robbery, a charge that was later dismissed by the trial court based on insufficient evidence. At the close of the trial, Mr. M’s attorney argued that the prosecutor had failed to establish the use or threat of use of a dangerous weapon, which was considered an essential element of the crime. Robbery differs from other crimes involving the deliberate theft of someone’s property, such as larceny, which typically does not involve the use of force.

The trial judge agreed with this argument and instructed the jurors that they could find Mr. M guilty only of robbery in the second or third degree. The jury was unable to reach a verdict and a mistrial was declared.

Following the mistrial, the prosecutor opted to charge Mr. M a second time with robbery in the first degree. His attorney objected but the trial court concluded that double jeopardy did not apply. Following this determination, the trial judge then ordered the jury to consider only a charge of second or third degree robbery, rather than the first degree offense included in the indictment. At the conclusion of the second trial, the jury found Mr. M guilty of robbery in the second degree. His attorney opted to appeal the conviction.

The Supreme Court Appellate Division found that the trial court was incorrect in allowing Mr. M to be tried a second time for first degree robbery. However, the court held that a reversal of the conviction was not warranted since the jury had not been allowed to consider the first degree robbery charge. The case was then forwarded to the New York Court of Appeals, which was charged with determining whether Mr. M’s rights were violated in obtaining the conviction.

The Court of Appeals agreed with the Appellate Division’s assertion that Mr. M’s rights had been violated under the double jeopardy clause. However, the court disagreed with the Appellate Division’s decision to uphold the conviction. The Court of Appeals argued that the prosecutor should have sought a new indictment, excluding the first degree robbery charge. If the use of force could not have been established, the prosecutor would have been required to seek an indictment for a lesser charge, such as theft.

Furthermore, the court asserted that the trial court’s removal of the first degree robbery count just prior to the jury beginning their deliberations did not necessarily mitigate the influence the charge may have had on their decision. It could be argued that since the jury had been considering the evidence within the framework of a first degree robbery charge up to that point, that it may have affected their decision to convict Mr. M on the second degree charge. The Appeals Court also held that the removal of the first degree robbery charge so late in the trial may have prevented Mr. M’s attorney from mounting the strongest defense.

The Appeals Court noted that in the second trial, Mr. M had filed an objection at being tried for first degree robbery a second time at the earliest possible time. The motion filed by his Criminal Defense Attorney to dismiss the indictment was incorrectly denied by the trial court. Following this line of reasoning, the Court of Appeals held that the entire proceeding was tainted and that Mr. M’s conviction for second degree robbery should be reversed. The court also held that the prosecutor could seek further prosecution of Mr. M under a new indictment only for those charges which had not been barred by double jeopardy.

Mr. M was fortunate in that he had the aid of an experienced criminal defense lawyer to protect his rights. Had his attorney not aggressively pursued an appeals claim based on constitutional grounds, Mr. M’s future may have been seriously compromised.

At the law firm of Stephen Bilkis and Associates, we are dedicated to providing expert legal representation for criminal defendants during the trial proceedings and beyond, if necessary. If you’ve been charged with robbery or another property crime such as burglary, don’t hesitate to contact us today to speak with one of our well-qualified New York Criminal Defense Lawyers. The New York legal system is complex and you don’t have to navigate it alone. Call us now at 1-800-NY-NY-LAW or visit one of our area offices to speak with us concerning your New York robbery case.

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