People v. Dodson — 48 N.Y.2d 36

Majority

p. 36

The People of the State of New York, Respondent, v Tanya Dodson, Appellant.

Argued September 6, 1979;

decided October 9, 1979

p. 37

POINTS OF COUNSEL

Eleanor Jackson Piel for appellant.

I. CPL 40.20 bars defendant’s State prosecution by its terms and on double jeopardy grounds for possession of stolen goods, grand larceny, and forgery because defendant was previously prosecuted and pleaded guilty in the Federal court to a charge of fraudulent negotiation of a check covering an indictment for similar charges growing out of "the same criminal transaction”. (People v Mangano, 269 App Div 954 , affd sub nom. People v Mignogna, 296 NY 1011 ; People v Daby, 56 AD2d 873 ; Matter of Cirillo v Justices of Supreme Ct. of State of N. Y., 43 AD2d 4 , 34 NY2d 990 ; Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560 ; Ashe v Swenson, 397 US 436 ; People v Abbamonte, 43 NY2d 74 .) II. The sentence imposed by the Judge below was illegal and invalid in that it requires restitution payments to be made beyond the period of probation. (People v Lofton, 78 Misc 2d 202 ; Feldman v Reeves, 45 AD2d 90 , 35 NY2d 707 .)

p. 38

Eugene Gold, District Attorney (Marlene L. Malamy of counsel), for respondent.

I. Appellant failed to raise the defense created under CPL 40.20 in the first instance and, as such, has failed to preserve the issue for review; with regard to the merits, as the possession of forged instruments .and grand larceny counts of the State indictment contain elements different from the crimes charged in the Federal prosecution, the case falls within the exception to CPL 40.20. (People v La Ruffa, 40 AD2d 1022 , 34 NY2d 242 , 916, 419 US 959 , 37 NY2d 58 , 423 US 917 ; People v Menna, 45 AD2d 1038 , 36 NY2d 930 , 423 US 61 , 38 NY2d 850 ; People v Adams, 38 NY2d 605 ; People v Abbamonte, 43 NY2d 74 ; People v Epton, 19 NY2d 496 ; Pinkerton v United States, 328 US 640 ; People v Tavormina, 257 NY 84 ; Nye & Nissen v United States, 336 US 613 ; People v Duncan, 46 NY2d 74 .) II. The period during which restitution can be made cannot exceed the period of probation.

OPINION OF THE COURT

A statutory claim that one may not be separately prosecuted for two offenses based on the same act or criminal transaction, as distinguished from a constitutional double jeopardy claim, must be duly preserved if there is to be appellate review.

On November 15, 1976 appellant pleaded guilty in the United States District Court for the Eastern District of New York to a charge that she fraudulently demanded a sum of money by virtue of a false instrument. The plea was accepted in satisfaction of a multicount indictment with reference to activities at various times between August 20 and September 23, 1974. Prior to her Federal plea appellant, in April, 1976, had been charged in a multicount indictment lodged in Kings County with possession of stolen property and altering and possessing forged instruments with intent to defraud in the period between August 1 and September 30, 1974. On January 3, 1977 appellant pleaded guilty to attempted grand larceny in the second degree in satisfaction of the State indictment. She was thereafter sentenced to five years’ probation on condition that she make restitution of a total sum of over $22,000 at the fate of $25 per week.

Appellant now contends that her State prosecution was barred under the previous prosecution provisions of CPL 40.20. At the threshold she concedes that her claim is predi

p. 39

cated only on the State statute and is not of constitutional dimension. She also acknowledges that she did not advance this claim prior to or at the time of her plea; it was first raised on appeal.

The statutory previous prosecution claim was waived by appellant’s plea of guilty and therefore has not been preserved for appellate review. The situation would be otherwise were she now raising a constitutional double jeopardy claim (People v Michael, 48 NY2d 1 ).

The restitution directed by the sentencing court would extend over nearly 17 years, well beyond the maximum five-year probationary period. The People candidly concede that under article 65 of the Penal Law restitution may not be ordered beyond the lawful period of probation.

Accordingly, the case must be remitted to Supreme Court, Kings County, for modification of the sentence to limit restitution to the period of probation. Subject to such modification, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order modified and the case remitted to Supreme Court, Kings County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

Cases cited

People v. Mignogna 296 NY 1011 N.Y. 1947-04-18 p. 37
Cirillo v. Justices of Supreme Court 43 AD2d 4 N.Y. App. Div. 1973-11-19 p. 37
Cirillo v. Justices of the Supreme Court 34 NY2d 990 N.Y. 1974-09-18 p. 37
Abraham v. Justices of New York Supreme Court 37 NY2d 560 N.Y. 1975-10-23 p. 37
Ashe v. Swenson 397 US 436 SCOTUS 1970-04-06 p. 37
People v. Abbamonte 43 NY2d 74 N.Y. 1977-11-17 p. 37, p. 38
People v. Lofton 78 Misc 2d 202 N.Y. Crim. Ct. 1974-06-10 p. 37
Feldman v. Reeves 45 AD2d 90 N.Y. App. Div. 1974-06-18 p. 37
People v. La Ruffa 34 NY2d 242 N.Y. 1974-05-09 p. 38
People v. La Ruffa 37 NY2d 58 N.Y. 1975-06-11 p. 38
People v. Menna 36 NY2d 930 N.Y. 1975-06-11 p. 38
Menna v. New York 423 US 61 SCOTUS 1975-11-17 p. 38
People v. Adams 38 NY2d 605 N.Y. 1976-02-24 p. 38
People v. Epton 19 NY2d 496 N.Y. 1967-05-16 p. 38
Pinkerton v. United States 328 US 640 SCOTUS 1946-06-10 p. 38
People v. Tavormina 257 NY 84 N.Y. 1931-07-15 p. 38
Nye & Nissen v. United States 336 US 613 SCOTUS 1949-04-18 p. 38
People v. Duncan 46 NY2d 74 N.Y. 1978-12-07 p. 38
People v. Michael 48 NY2d 1 N.Y. 1979-07-10 p. 39