
    In the Matter of Alfred Bishop, Respondent, v. Supreme Court of the State of New York et al., Appellants.
    Argued June 8, 1964;
    decided July 10, 1964.
    
      
      Richard B. Thaler, District Attorney, for appellants.
    I. Petitioner-respondent was not put in jeopardy in the first trial for carnal abuse as a felony. (Matter of Nolan v. Court of General Sessions of County of N. Y., 15 A D 2d 78, 11 N Y 2d 114; People v. Ercole, 4 N Y 2d 617, 5 N Y 2d 983; People ex rel. Hetenyi v. Johnston, 10 A D 2d 121.) II. A jury disagreement is no bar to a retrial. (People ex rel. Bullock v. Hayes, 166 App. Div. 507, 215 N. Y. 172.) III. The People should be permitted to proceed in accordance with a Special Term order. (Matter of Bloeth v. Supreme Court of State of N. Y., 19 A D 2d 785.)
    
      John LoPinto for respondent.
    I. Respondent’s former jeopardy of conviction and punishment for carnal abuse as a felony became complete after the first trial commenced. Jeopardy relates to the essential allegations of the indictment and the evidence. (People v. Johnson, 8 N Y 2d 183; People v. Church, 7 A D 2d 817; Johnson v. People, 55 N. Y. 512; People v. Sickles, 156 N. Y. 541; People v. Rosen, 208 N. Y. 169; People ex rel. Poulos v. McDonnell, 302 N. Y. 89; People v. Katt, 17 A D 2d 856; People v. Kuehn, 5 A D 2d 516; People ex rel. Kwiatkowski v. Trenkle, 169 Misc. 687; People v. Samuels, 259 App. Div. 167, 284 N. Y. 410; People ex rel. Travis v. Daniels, 182 Misc. 856; Matter of Martinis v. Supreme Court 
      
      of State of N. Y., 20 A D 2d 79; People v. De Sisto, 27 Misc 2d 217.) II. Respondent’s former jeopardy as to felony carnal abuse terminated forever when the court at end of People’s case at first trial dismissed that charge as a felony. (People v. Kuehn, 5 A D 2d 516; People v. Marra, 13 N Y 2d 18; Matter of Nolan v. Court of General Sessions of County of N. Y., 11 N Y 2d 114; Matter of Mach v. Court of General Sessions of County of N. Y., 14 A D 2d 98; Matter of Allen v. City Court of City of Ithaca, 33 Misc 2d 356; People v. Goldfarb, 152 App. Div. 870, 213 N. Y. 664; Matter of Kraemer v. County Court of Suffolk County, 6 N Y 2d 363; People v. Lenoci, 13 Misc 2d 789; People v. Krivitzky, 60 App. Div. 307, 168 N. Y. 182; People v. Loomis, 30 How. Prac. 323; Green v. United States, 355 U. S. 184; People ex rel. Weiner v. Warden of City Prison, Kings County, 237 App. Div. 28; People ex rel. North v. Skinner, 280 App. Div. 611, 305 N. Y. 711; People v. Smith, 266 App. Div. 57; People v. Meakim, 61 Hun 327, 133 N. Y. 214; Canter v. People, 38 How. Prac. 91; People v. Thrum, 143 Misc. 7; People v. Simmons, 130 Misc. 821.) III. Single punishment only is lawful for same criminal act. (People v. Hutchinson, 276 App. Div. 1040; People ex rel. Johnson v. Redman, 23 Misc 2d 58; People v. Palmer, 109 N. Y. 413.) IV. Dismissal by the court of whole indictment or count for insufficiency of proof at the trial constitutes final acquittal (People v. Dowling, 84 R Y. 478; People ex rel. Bullock v. Hayes, 166 App. Div. 507, 215 N. Y. 172; People v. Smith, 172 N. Y. 210; People v. McGrath, 202 N. Y. 445; Matter of Mack v. Court of General Sessions of County of N. Y., 14 A D 2d 98; People ex rel. Poulos v. McDonnell, 302 N. Y. 89 ; Matter of Nolan v. Court of General Sessions of County of N. Y., 11N Y 2d 114; People v. Lem, 11 Misc 2d 35.) V. As essential element of an indictment or a count being dismissed, retrial is lawful only as to remaining portion. (Sullivan v. People, 27 Hun 35; People v. Dowling, 84 N. Y. 478; People v. McGuire, 5 N Y 2d 523; People v. Murch, 263 N. Y. 285; Dedieu v. People, 22 N. Y. 178.) VI. A jury disagreement does not permit retrial as to any part of indictment from which a defendant is discharged. (People ex rel. Bianculli v. McDonnell, 278 App. Div. 782; People ex rel. Blue v. Kearney, 181 Misc. 981, 292 N. Y. 679; People v. Marra, 13 N Y 2d 18.) VII. The People are estopped from moving any count of carnal abuse as a felony, because the question of the prior conviction was litigated at the first trial in favor of respondent, and because on the second trial such count was moved as a misdemeanor. (Hinchey v. Sellers, 7 N Y 2d 287; Israel v. Wood Dolson Co., 1 N Y 2d 116; Matter of Martinis v. Supreme Court of State of N. Y., 20 A D 2d 79 ; People v. Litt-Chinitz, 38 Misc 2d 864.) VIII. The carnal abuse charge having been moved as a misdemeanor at the second trial, the People are now estopped from moving it as a felony. (People v. Chessman, 13 N Y 2d 793; Matter of Martinis v. Supreme Court of State of N. Y., 20 A D 2d 79; People ex rel. Pulko v. Murphy, 244 App. Div. 382.)
   Per Curiam.

Since the respondent Bishop was never placed in jeopardy of conviction for the crime of carnal abuse as a felony, subjecting him to trial for such offense will not constitute double jeopardy. When the respondent sought and obtained an order vacating the 1937 judgment of conviction—on the strength of which he was charged in the 1960 indictment with the felony of carnal abuse — any and all danger of his being convicted of such crime upon the trial of that indictment was eliminated. In other words, by procuring the vacatur of the earlier judgment, the respondent rendered his conviction of the felony impossible as a matter of law and, consequently, the trial judge’s dismissal of the felony charge at the close of the People’s case, rather than constituting a dismissal of that charge on the merits, simply reflected and confirmed the then existing situation. When, therefore, the order vacating the 1937 judgment was reversed on appeal (People v. Bishop, 14 A D 2d 376, affd. 11 N Y 2d 854) and that conviction was reinstated, the People were (and are) free to proceed against the respondent — after the trials on the 1960 indictment had terminated in disagreement and mistrials—upon a superseding indictment charging the respondent with carnal abuse as a felony.

The order appealed from should be reversed and the petition dismissed.

Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Burke and Scileppi concur; Judge Bergan taking no part.

Order reversed, etc.  