People v. De Mino

35 A.D.2d 979, 317 N.Y.S.2d 929, 1970 N.Y. App. Div. LEXIS 3104

Opinion

Christ, P. J., Munder, Kleinfeld and Brennan, JJ., concur; Latham, J., concurs in the result, with the following memorandum.: In my opinion, the order appealed from should be affirmed on the ground that defendant waived his right to raise the issue of double jeopardy for the first time in this proceeding instituted 16 years after conviction. Defendant did not interpose a plea of double jeopardy or raise the defense in any other manner at his second trial (People ex rel. Williams v. Follette, 30 A D 2d 693, affd. 24 N Y 2d 949; People ex rel. Elias v. Follette, 32 A D 2d 929, mot. for lv. to app. den. 25 N Y 2d 742; People v. Allen, 18 A D 2d 840; Code Crim. Pro., § 332; People v. Friola, 11 N Y 2d 157; cf. People v. Bailey, 21 N Y 2d 588, 597-598).