
    The People of the State of New York, Respondent, v. Daniel Di Lapo, Appellant.
    Argued February 26, 1964;
    decided April 30, 1964.
    
      
      Francis X. Murphy for appellant.
    There was only one criminal transaction for which there can only be one punishment. (People ex rel. Maurer v. Jackson, 2 N Y 2d 259; Matter of Zovick v. Eaton, 259 App. Div. 585; People ex rel. Thornwell v. Heacox, 231 App. Div 617; People ex rel. Richardson v. Morhous, 182 Misc. 299; People v. Wells, 246 App. Div. 853; People v. Logan, 41 Cal. 2d 279; People v. Galvin, 148 Cal. App. 2d 285; People v. Blue, 161 Cal. App. 2d 1.)
    
      Michael F. Dillon, District Attorney (Arthur G. Baumeister of counsel), for respondent.
    I. The judgment of conviction appealed from did not violate section 1938 of the Penal Law. (People ex rel. Maurer v. Jackson, 2 N Y 2d 259; People v. Skarczewski, 178 Misc. 160, 287 N. Y. 826; People ex rel. Kammerer v. Brophy, 255 App. Div. 821, 280 N. Y. 618; People ex rel. Poster v. Jackson, 278 App. Div. 734, 303 N. Y. 680.) II. The issue presented by this appeal has already been decided by this court on its review of defendant-appellant’s petition for a writ of habeas corpus. (People ex rel. Di Lapo v. Tutuska, 27 Misc 2d 544, 11 A D 2d 906, 9 N Y 2d 910; People ex rel. Santangelo v. Tutuska, 19 Misc 2d 308; People v. Snyder, 241 N. Y. 81.)
   Chief Judge Desmond.

Section 1938 of the Penal Law is as follows: “ § 1938. Punishment when different penalties are provided by different provisions of law. An act or omission which is made criminal and punishable in different ways, by different provisions of law, may be punished under any one of those provisions, but not under more than one; and a conviction or acquittal under one bars a prosecution for the same act or omission under any other provision.” Defendant was in an earlier case indicted with several others for murder first degree as will be explained herein, and in that earlier prosecution was convicted of assault with intent to kill and was sentenced to from 5 to 10 years, which sentence he is now serving. After he had been so convicted and sentenced there was found against him, because of alleged acts on the same night and in the same general transaction as the assault, an indictment charging him with several counts of burglary first and several counts of attempted robbery first. As to this later indictment he pleaded guilty to one count which charged him with attempted robbery in the first degree while being aided by named accomplices. This count to which he so pleaded was the fifth in the indictment, the other counts in that indictment being dismissed at the time of the plea. On this guilty plea to attempted robbery first, defendant was sentenced by the Erie County Court to a 5 to 15-year term to be served after completion of the earlier sentence for first degree assault. Later defendant was resentenced to 5 to 11 years on the attempted robbery first degree, but it was still provided that the robbery first sentence was to be served after, and not concurrently with, the earlier assault first term. From the judgment sentencing defendant to consecutive imprisonment for the attempted robbery defendant appealed to Appellate Division, Fourth Department, which unanimously affirmed, without opinion.

The question is this: Were the elements of the alleged attempted robbery and the elements of the attempted assault first degree so identical in fact that, despite the propriety of prosecuting them as two crimes, double punishment could not follow because of section 1938 of the Penal Law (supra) %

Robbery is the unlawful taking of personal property from the person or in the presence of another against his will by means of force, violence or fear. Attempted robbery first degree is committed when, as here charged, the alleged robber, being assisted by accomplices actually present, attempts to take property from the person of another (see Penal Law, §§ 2, 2120-2124). Assault with intent to kill, the crime for which this defendant was convicted and sentenced after the murder trial, is defined in section 240 of the Penal Law and includes at least the shooting testified to on the murder trial as having been done by this defendant. Defendant says there was one act only charged as the assault and attempted robbery consisting of the firing of a shot at the victim by defendant. The People say that there was first an attempted robbery and then almost immediately after, but separate, the other act of shooting the victim.

Going back to the assault first degree conviction, this was, as we have said, the outcome of the trial of an indictment which charged defendant and five others with murder in the first degree, both common-law and felony, for killing one George Simon who died on January 5, 1959. On that murder trial the trial jury acquitted all the defendants except this defendant and convicted this defendant of assault with intent to kill, presumably because he fired the shot.

The determination as to whether there Avas but one act on which defendant Avas convicted of and ordered punished for two crimes takes us back to the record of the homicide trial. Substantially, the only proof on that trial as to defendant’s connection with the shooting affray consisted of testimony of a police officer as to oral admissions made by appellant Di Lapo. According to these admissions, six young men drove to the area in Buffalo where the intended victim lived. Four of them, including Di Lapo, got out of the car and approached the victim’s house. Two of. them, not including Di Lapo, broke in the door and Di Lapo followed the other two in. According to these admissions, Di Lapo was the last one in and as he came in he heard a voice (the victim’s voice) shouting “ Get out, or I will shoot ” and as Di Lapo turned around he suav a flash of fire from the victim’s gun and Di Lapo fell to the floor, took out his own revolver and fired in the direction from which the victim’s shot had come. Di Lapo’s shot wounded the victim although the jury later found that the victim’s death was not due to the gunshot wound. Several of the other men were still in the house when this exchange of shots took place. All of them ran out without stealing anything.

Section 1938 of the Penal Law (supra) was analyzed and construed in People ex rel. Maurer v. Jackson (2 N Y 2d 259) beginning at page 263. At page 264 Judge Froessel wrote: “ It is clear that if separate and distinct acts Avere committed, and that they violated more than one section of the Penal Law, punishment for each of them would be proper although they arose out of a single transaction ”. The argument for the People in the present case is that the attempted robbery consisted of Di Lapo’s breaking into the house with the intent to steal, thus putting the victim in fear, and that the shooting of the victim was a later, separate act with a separate intent — that is, an intent to kill.

In 1961, in People ex rel. Di Lapo v. Tutuska (9 N Y 2d 910), we affirmed a denial of habeas corpus relief sought by this same Di Lapo. In that habeas corpus proceeding he had asserted that because he had been acquitted of murder on the trial he could not thereafter be prosecuted for any of the underlying felonies attempted to be proven ag*ainst him on the homicide trial. In other words, he sought in that habeas corpus proceeding to knock out the whole of the second indictment, to one count of which he later pleaded guilty. Our affirmance of the denial of habeas corpus was expressly stated to be on the Special Term opinion which is published at 27 Miscellaneous 2d 544. Rejecting the argument of the District Attorney on this appeal, we fail to see how that prior denial of habeas corpus is of any particular relevance here. We agreed with the courts below that habeas corpus did not lie since at least the burglary charge in the indictment would be triable. The defendant thereafter pleaded guilty to attempted robbery, not burglary, leaving open the question we are now passing on.

We hold that on these facts section 1938 does not make illegal the additional punishment on the guilty plea to attempted robbery. It is not impossible to say that there were separate acts or elements making out, separately, assault with intent to kill and attempted robbery, and that double punishment was, therefore, permissible.

The judgment should be affirmed.

Bergan, J.

(dissenting). The event from which two separate crimes have been spelled out resulting in consecutive sentences, as established on appellant’s trial, was a unified act. Entering a building with others for the purpose of robbery, defendant shot the victim as a part of the circumstance by which the robbery was frustrated, i.e., by the victim’s firing a shot.

This flowing and unbroken event ought not to be segmented into crimes for which separate and consecutive sentences are imposed. Section 1938 of the Penal Law has been said to embody, and even to extend, the constitutional protection against double jeopardy (see People v. Snyder, 241 N. Y. 81, 83).

The new indictment found after defendant’s conviction for first degree assault committed by shooting in the course of an attempted robbery, charges attempted robbery, first degree, under four separate theories, all arising out of the same event.

The fourth count charges the crime upon the theory of fear created in the victim being armed with a dangerous weapon the fifth count charges the same crime on the theory that defendant was ‘ ‘ assisted by accomplices actually present ’ ’; the sixth count that defendant was “ aided by the use of an automobile ’ ’ and the seventh count on the theory that ‘‘ having afflicted grievous bodily harm and injury ” the attempt to rob was made.

All of these counts related to the same act; and the sixth count makes it clear how much the assault was a basic and inseparable ingredient to the fear caused in the attempted robbery. For the purpose of adding cumulative punishment, the unitary nature of the crimes ought not be avoided by picking out the fifth count (being assisted by accomplices present) as a vehicle for a consecutive sentence on defendant’s plea. We should take a broader view than this of section 1938.

The test of what is the same “act” made punishable in “ different” ways is not always clear and some of the cases are difficult to reconcile. But one significant criterion is a recognizable differential in the time sequence — one thing done before the next thing starts.

This was the standard set in People v. Snyder (supra) which treated the breaking into the chicken coop as a burglary separate from the larceny thereafter committed in stealing 30 chickens (pp. 82, 83).

The court’s analysis of sequential acts is significant: “ There can be no double jeopardy if the Legislature has seen fit to provide that up to a particular point the acts of the defendant constitute one crime and that the acts of the defendant, committed thereafter, constitute a second crime and that each series of acts constituting a separate crime are subject to separate punishment” (pp. 83-84).

It is interesting to notice the development of the concept of time involved by the expressions ‘ up to a particular point ’ ’ and “ thereafter ” in Judge Lehman’s opinion. A similar emphasis on sequential time differential in meeting the test of the “same” and “different” acts is to be observed in People ex rel. Maurer v. Jackson (2 N Y 2d 259), which, although it was a habeas corpus proceeding in which there was limited access to the trial record, and there was a heavily stressed absence of consecutive sentences, has become a leading modern interpretation of section 1938 of the Penal Law.

It was noted by Judge Froessel that the meager record in Maurer did not “ permit ” the court to “ determine precisely ” whether or not the attempted robbery was “ incomplete before ” the relator ‘‘ discharged his revolver in his attempt to kill ’ ’ the victim; or how much time ‘ ‘ elapsed between ’ ’ those separate acts (p. 265).

Looking at the face of the indictment and the record of the pleas, and without being able to determine precisely the time sequence, the court took it that they were separable. Maurer, therefore, ought not be read as sustaining the consecutive sentences imposed in the case now before us.

We are not left in doubt in this appeal from the judgment of conviction as to Avhat the record on the prior trial of the assault showed. It did shoAv, in the words of Maurer (p. 265), that the ‘ ‘ attempted robbery was incomplete before ’ ’ defendant discharged his revolver.

There was here no time sequential to make for a separation; rather the event which made the attempt was integral Avith the assault. Hence it falls wthin the “ single inseparable act violative of more than one statute ” which, under Maurer, could incur a “single punishment” (p. 264; emphasis in original). Moreover, the decision in that case clearly is addressed to a situation AAdiere concurrent sentences have been imposed and not to a case of consecutive sentences.

The trend of authority in New York indicates that a robbery and the violence of an assault which is an ingredient to the fear in robbery are not punishable separately. The problem Avas squarely met in Matter of Zovick v. Eaton (259 App. Div. 585) where Judge Foster, writing for the Appellate Division, noted that ‘ ‘ An examination of the evidence taken on the trial indicates that petitioner committed no assault except that which was involved as an element of robbery. He held up four people by pointing a loaded revolver at them, and then he and his codefendant robbed them. The acts of robbery and of assault were all part of a single transaction” (p. 586). The order was reversed and mandamus granted.

In People ex rel. Thornwell v. Heacox (231 App. Div. 617) it was held that separate punishment could not be imposed for assault, second degree, committed as a part of robbery, first degree, and People v. Wells (246 App. Div. 853) is to the same effect. In part the Zovick and Thornwell decisions are based on the additional consideration that the requirement, noted in People v. Florio (301 N. Y. 46, 54), that where there is a general verdict on several counts of an indictment arising from the same transaction the practice is to pass judgment on the highest grade of offense, but that the principle should be applicable as well to this case.

There are, of course, cases in which crimes have been looked at as so separable as to permit separate punishment (People ex rel. Poster v. Jackson, 303 N. Y. 680; People ex rel. Kammerer v. Brophy, 280 N. Y. 618; People v. Skarczewski, 287 N. Y. 826; People v. Plesh, 283 App. Div. 868); and cases when they have not been regarded as thus separable (People v. Repola, 305 N. Y. 740; People v. Pauley, 281 App. Div. 223, 229; People v. Valentino, 276 App. Div. 1030; and People v. Morel, 258 App. Div. 971).

But these distinctions turned upon the differing nature of the offense or of the degree charged. California has a statute similar to New York’s. It, too, has been construed to prevent multiple punishment from being imposed on assaults and robberies treated as separate entities. (People v. Logan, 41 Cal. 2d 279; People v. Galvin, 148 Cal. App. 2d 285).

The judgment should be reversed.

Judges Dye, Van Voorhis, Burke and Scileppi concur with Chief Judge Desmond; Judge Bergan dissents in a separate opinion in which Judge Fuld concurs.

Judgment affirmed.  