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BOTH THE FEDERAL AND STATE CONSTITUTIONS REQUIRE THE SAME BLOCKBURGER TEST FOR DOUBLE JEOPARDY (FOURTH DEPT).

The Fourth Department determined the test for double jeopardy under the state constitution is the same as under the federal constitution:

“Under the Federal Constitution, double jeopardy arises only upon separate prosecutions arising out of the same offence’ ” … . The United States Supreme Court employs a “same-elements” test, also known as the Blockburger test (Blockburger v United States, 284 US 299 [1932]), that “inquires whether each offense contains an element not contained in the other; if not, they are the same offence’ and double jeopardy bars additional punishment and successive prosecution” … . Here, the elements of DWI (see Vehicle and Traffic Law § 1192 [2], [3]) and leaving the scene of a property damage incident without reporting (see § 600 [1] [a]) are not the same; among other things, a person does not need to be intoxicated to be found guilty of leaving the scene of a property damage incident without reporting, and does not need to cause property damage to be found guilty of DWI. …

… [T]he Court of Appeals has held that “[t]he Double Jeopardy Clauses in the State and Federal Constitutions are nearly identically worded, and we have never suggested that state constitutional double jeopardy protection differs from its federal counterpart” … , the Court of Appeals set forth the Blockburger test, not the same conduct test, when analyzing a defendant’s claim that the double jeopardy clauses of both the Federal and State Constitutions barred a subsequent prosecution. We therefore conclude that the constitutional double jeopardy analysis is the same under federal and state law, and that there is no constitutional double jeopardy violation here … . Matter of McNerlin v Argento, 2019 NY Slip Op 04554, Fourth Dept 6-7-19

 

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