Opinion
Argued March 19, 1975
Decided June 11, 1975
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOSEPH R. CORSO, J.
Robert A. Naidus and William E. Hellerstein for appellant.
Eugene Gold, District Attorney (Richard E. Mischel of counsel), for respondent.
Order affirmed. Having knowingly and voluntarily chosen to plead guilty after denial of his motion to dismiss the indictment on the ground of double jeopardy, the defendant waived his right later to raise the defense and remains bound by his plea. (See People v La Ruffa, 37 N.Y.2d 58.)
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES and COOKE. Judge FUCHSBERG dissents and votes to reverse in the following opinion in which Judge WACHTLER concurs.
Menna, the defendant here, was adjudicated to be in contempt, in violation of section 750 of the Judiciary Law, for his refusal to testify before a Grand Jury, and sentenced to a jail term. This case stems from his subsequent indictment for contempt under the Penal Law (see Penal Law, § 215.50) arising out of precisely the same acts for which the earlier contempt charge had been brought.
In People v Colombo ( 25 N.Y.2d 641), a case very close on its facts to the one here, the indictment was dismissed on the ground of double jeopardy, but reinstated by the Appellate Division ( 32 A.D.2d 812), whose decision, in turn, was upheld by our court ( 25 N.Y.2d 641). Upon certiorari to the United States Supreme Court, it vacated and remanded "for further consideration in light of Waller v Florida, 397 U.S. 387" ( 400 U.S. 16). We then adhered to our original decision ( 29 N.Y.2d 1). Again, certiorari was sought, and the Supreme Court vacated and remanded once more ( 405 U.S. 9). It was of the view that our court had "misconce[ived] the nature of the contempt judgment * * * for purposes of the Double Jeopardy Clause" (p 11). For the second time it remanded the case to us because of the possibility that the two separate charges of contempt might be "intertwined".
It was when Colombo was at that stage that Menna came up for trial on his criminal contempt indictment. He pleaded guilty, but not before his double jeopardy defense was summarily rejected by the trial court in the following language: "Well, on the basis of the law as it exists today — whether the Court of Appeals is going to reconsider its decision in People v Colombo or not, this court has no way of knowing — but as the law stands today, as interpreted by our Court of Appeals, the court has no other alternative but to deny the motion."
Some time after Menna's plea and sentence, our court, acting for the third time in Colombo, dismissed the latter's indictment as "barred by the double jeopardy clause." ( 31 N.Y.2d 947, 949.)
Under the circumstances, I believe Menna's plea did not constitute a waiver of his constitutional right to claim double jeopardy, its practical result being "`to prevent a trial from taking place at all'". (Blackledge v Perry, 417 U.S. 21, 31; see, also, dissent in People v La Ruffa, 37 N.Y.2d 58; United States v Liguori, 430 F.2d 842, cert den 402 U.S. 948.)
Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed.
Order affirmed, etc.