On October 1, 1959 appellant, Lo Cicero, together with two codefendants, was indicted in the United States District Court for the Eastern District of New York for the crime of obstructing by robbery the movement of goods in interstate commerce (U. S. Code, tit. 18, § 1951). It was alleged that the defendants hijacked a truck containing goods consigned from Japan to New York. On October 15, 1959, and before the trial of the Federal indictment, appellant and one other were indicted in the County Court of Kings County on four counts arising out of the same transaction. After a trial in the Federal District Court appellant was found not guilty. Appellant thereupon moved to dismiss the State indictment on the ground of double jeopardy. The County Court granted the motion but the Appellate Division reversed by a divided court and reinstated the indictment.
The controlling statutes are:
Penal Law, section 33. "Foreign conviction or acquittal a defense. Whenever it appears upon the trial of an indictment, that the offense was committed in another state or country, or
Code of Criminal Procedure, section 139. "Conviction or acquittal in another state, a bar, where the jurisdiction is concurrent. When an act charged as a crime is within the jurisdiction of another state, territory or country, as well as within the jurisdiction of this state, a conviction or acquittal thereof in the former, is a bar to a prosecution or indictment therefor in this state."
The argument made by the People on this appeal is succinctly stated by Presiding Justice BELDOCK, writing for the Appellate Division, as follows: "In my opinion, neither of these statutes is applicable to a former Federal prosecution. Section 139 of the Code of Criminal Procedure applies only to a crime within the jurisdiction of `another state, territory or country'. Section 33 of the Penal Law applies only to a crime committed in `another state or country'. The Federal Government does not fall into any of those categories. Therefore, the acquittal in the Federal court is not a bar to the prosecution in this State, even though the act involved in the State prosecution is the same as the act involved in the Federal prosecution. If the statute by its language had barred a second prosecution upon defendant's acquittal by `another government' for a similar offense, the situation would be entirely different."
In support of this interpretation of the statutes, the People rely on the difference between the language proposed by the Field Commission in 1864 and that finally approved by the Legislature when the predecessor of section 33 of the Penal Law was enacted. The recommendation allowed a defense when it appeared upon the trial that the accused had been convicted or acquitted for the same offense under the laws of "another state, government, or country." (Proposed Penal Code, § 739; see Report of Board of Statutory Consolidation , pp. 11-13.) The word "government", the most inclusive denotation of a political authority other than New York, does not appear in the statute as finally enacted in 1881 (L. 1881, ch. 676;
We are also obliged to construe statutes so as to avoid constitutional doubts. (Kauffman & Sons Saddlery Co. v. Miller, 298 N.Y. 38; Matter of Coates, 9 N.Y.2d 242; Dennis v. United States, 341 U.S. 494.) While there are numerous cases flatly holding that both the Federal and State Governments may constitutionally punish a man for a single act that offends the laws of both jurisdictions (United States v. Lanza, 260 U.S. 377, 382; Bartkus v. Illinois, 359 U.S. 121; Abbate v. United States, 359 U.S. 187), similar holdings in regard to the dual sovereignty limitation on the constitutional protection against self incrimination have recently been overruled (Murphy v. Waterfront Comm. of N. Y. Harbor, 378 U.S. 52).
For these reasons, and in view of the fundamental character of the rule that a man shall not be twice vexed for the same cause and the deep roots it throws into the history of the criminal law, we are not inclined to narrow its application by exceptions based on an ambiguity of statutory draftsmanship.
Since the first count of the present indictment charges appellant with the same robbery of which he was acquitted in the Federal court, the count must fall. The additional element of obstruction of interstate commerce, necessarily present in the Federal indictment, does not diminish the substantial identity of the two charges. (People ex rel. Liss v. Superintendent, 282 N.Y. 115; People v. Mangano, 269 App. Div. 954, affd. 296 N.Y. 1011, supra.) The second count, charging grand larceny in the first degree (theft of the contents of the truck — Penal Law, § 1294, subd. 3), and the third count, charging assault in the second degree (with the intent to commit the larceny and robbery — Penal Law, § 242, subd. 5), are legally constituent elements of the crime of robbery and factually refer to the same acts that formed the basis of the Federal robbery indictment. Accordingly, since appellant could have been convicted of these two crimes under the Federal indictment, he may not again be placed in jeopardy for them. (Penal Law, § 1938; People ex rel. Di Lapo v. Tutuska, 27 Misc.2d 544, affd. 11 A.D.2d 906, affd. 9 N.Y.2d 910; People ex rel. Maurer v. Jackson, 2 N.Y.2d 259; Matter of Zovick v. Eaton, 259 App. Div. 585; People v. Savarese, 1 Misc.2d 305, 325.)
The last count, charging the kidnapping of the driver of the hijacked truck, does not place appellant twice in jeopardy because the Federal prosecution did not include that separate offense. (People v. Repola, 280 App. Div. 735, affd. 305 N.Y. 740; People v. Florio, 301 N.Y. 46; People v. Hope, 257 N.Y. 147.) And even if it may be assumed that the acquittal of the robbery charge in the Federal court resulted from a failure to prove appellant's participation in the crime — the question of identity appears paramount from the record of that case —
Order modified and matter remitted to the Supreme Court, Kings County, for further proceedings in accordance with the opinion herein.