Lewis v. Smith

Appellate Division of the Supreme Court of New York

Lewis v. Smith

38 A.D.2d 883, 329 N.Y.S.2d 145, 1972 N.Y. App. Div. LEXIS 5310

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 25, 1972

StatusPublished

Cited by1 cases

This text of 38 A.D.2d 883 (Lewis v. Smith) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lewis v. Smith, 38 A.D.2d 883, 329 N.Y.S.2d 145, 1972 N.Y. App. Div. LEXIS 5310 (N.Y. Ct. App. 1972).

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Opinion

Oral motion to add name of Bari Moody as a petitioner is granted. Petition unanimously dismissed, without costs. Memorandum: In this article 78 proceeding petitioners seek judgment prohibiting their ongoing trial of criminal charges against them under their indictments for assaults and robbery and other crimes growing out of a prison riot in the Auburn Correctional Facility at Auburn, New York on November 4, 1970. Petitioners allege that under administrative regulations of the Auburn Correctional Facility they were charged with these same acts and given hearings thereon in December, 1970, as a result of which three of them were confined to the segregation unit for a period of time and penalized by loss of a year’s “ good time ”, and that the other three were confined to the segregation unit and penalized to some extent by loss of “ good time ” until the expiration of the maximum terms of their respective sentences. Because of the administrative trials and punishments for these acts, petitioners allege that their subsequent indictments for such acts and the present trial thereof constitute double jeopardy, The administrative trials did not result in the imposition of additional sentences upon petitioners, but did result in their loss [884]*884of some privileges under the sentences which they were serving. Such proceedings and punishments cannot form a predicate for the charge of double jeopardy upon the indictment and trial of petitioners for the alleged crimes which those acts constitute (Matter of Escobar v. Roberts, 29 N Y 2d 594; and see Matter of Barnes v. Tofany, 27 N Y 2d 74, 78; Matter of Evans v. Monaghan, 306 N. Y. 312, 324; People ex rel. Natoli v. Lewis, 287 N. Y. 478; McGillicuddy v. Monaghan, 201 Misc. 650, 652, affd. 280 App. Div. 144; Matter of Brawer v. Criminal Ct., 47 Misc 2d 411, 412). (Article 78 proceeding for writ of prohibition to dismiss indictments.) Present — Del Vecchio, J. P., Witmer, Gabrielli, Cardamone and Henry, JJ.

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Oral motion to add name of Bari Moody as a petitioner is granted. Petition unanimously dismissed, without costs. Memorandum: In this article 78 proceeding petitioners seek judgment prohibiting their ongoing trial of criminal charges against them under their indictments for assaults and robbery and other crimes growing out of a prison riot in the Auburn Correctional Facility at Auburn, New York on November 4, 1970. Petitioners allege that under administrative regulations of the Auburn Correctional Facility they were charged with these same acts and given hearings thereon in December, 1970, as a result of which three of them were confined to the segregation unit for a period of time and penalized by loss of a year’s “ good time ”, and that the other three were confined to the segregation unit and penalized to some extent by loss of “ good time ” until the expiration of the maximum terms of their respective sentences. Because of the administrative trials and punishments for these acts, petitioners allege that their subsequent indictments for such acts and the present trial thereof constitute double jeopardy, The administrative trials did not result in the imposition of additional sentences upon petitioners, but did result in their loss [884]*884of some privileges under the sentences which they were serving. Such proceedings and punishments cannot form a predicate for the charge of double jeopardy upon the indictment and trial of petitioners for the alleged crimes which those acts constitute (Matter of Escobar v. Roberts, 29 N Y 2d 594; and see Matter of Barnes v. Tofany, 27 N Y 2d 74, 78; Matter of Evans v. Monaghan, 306 N. Y. 312, 324; People ex rel. Natoli v. Lewis, 287 N. Y. 478; McGillicuddy v. Monaghan, 201 Misc. 650, 652, affd. 280 App. Div. 144; Matter of Brawer v. Criminal Ct., 47 Misc 2d 411, 412). (Article 78 proceeding for writ of prohibition to dismiss indictments.) Present — Del Vecchio, J. P., Witmer, Gabrielli, Cardamone and Henry, JJ.

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Bluebook (online)

38 A.D.2d 883, 329 N.Y.S.2d 145, 1972 N.Y. App. Div. LEXIS 5310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-smith-nyappdiv-1972.

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