People v. Malavassi

248 A.D. 784

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1936
• Status: Published

Opinion

Order of the County Court of Richmond county dismissing an indictment for perjury in the first degree reversed on the law, motion denied, and the indictment reinstated. The facts averred in the indictment constitute the crime of perjury in the first degree within sections 1620 and 1620-a of the Penal Law. Section 760 of the Penal Law has no application. It concerns a certificate of nomination and the facts here relate to a nominating petition. There is no provision in article 74 of the Penal Law that makes the offenses therein defined and the punishment therefor exclusive. The fact that an act is a crime under two or more sections of the Penal Law does not bar prosecution under either provision. In such a case the duty devolves upon the grand jury and the district attorney to determine under which of the applicable sections of the statute an indictment should be found. Penal statutes covering substantially the same offenses may stand together and one may be prosecuted under any one of the provisions making the act or acts an offense. (Penal Law, § 1938; People v. Dwyer, 215 N. Y. 46,52.) Lazansky, P. J., Hagarty, Carswell, Davis and Johnston, JJ., concur.