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PETITION TO PROHIBIT RETRIAL OF A MANSLAUGHTER COUNT DENIED, ALTHOUGH THE FOURTH DEPT DISMISSED THE COUNT AFTER DETERMINING THE VERDICT WAS REPUGNANT, THE COURT OF APPEALS, AGREEING THAT THE VERDICT WAS REPUGNANT, HELD THAT THE PEOPLE COULD SEEK A SECOND INDICTMENT (FOURTH DEPT).

The Fourth Department dismissed an Article 78 petition seeking to prohibit retrial in a manslaughter case. The Fourth Department had dismissed the manslaughter count after determining the verdict was repugnant. The Court of Appeals agreed the verdict was repugnant but held that dismissal of the was not required:

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Petitioner was convicted of manslaughter in the first degree as a hate crime … and criminal possession of a weapon in the third degree … . On appeal from the judgment of conviction, we determined that the verdict convicting him of manslaughter in the first degree as a hate crime yet acquitting him of manslaughter in the first degree was inconsistent, i.e., ” legally impossible,’ ” inasmuch as all of the elements of manslaughter in the first degree are elements of manslaughter in the first degree as a hate crime … . We thus modified the judgment by reversing that part convicting him of manslaughter in the first degree as a hate crime and dismissing that count of the indictment.

The Court of Appeals agreed that “the jury’s verdict was inconsistent, and thus repugnant” … , but disagreed with our remedy of dismissal. The Court explained that there is “no constitutional or statutory provision that mandates dismissal for a repugnancy error,” …  and that “a repugnant verdict does not always signify that a defendant has been convicted of a crime on which the jury actually found that he did not commit an essential element” … . … As a result, the Court determined that the People could “resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury” … . Matter of DeLee v Brunetti, 2018 NY Slip Op 00742, Fourth Dept 2-2-18

CRIMINAL LAW (REPUGNANT VERDICTS, PETITION TO PROHIBIT RETRIAL OF A MANSLAUGHTER COUNT DENIED, ALTHOUGH THE FOURTH DEPARTMENT DISMISSED THE COUNT AFTER DETERMINING THE VERDICT WAS REPUGNANT, THE COURT OF APPEALS, AGREEING THAT THE VERDICT WAS REPUGNANT, HELD THAT THE PEOPLE COULD SEEK A SECOND INDICTMENT (FOURTH DEPT))/REPUGNANT VERDICTS (CRIMINAL LAW, PETITION TO PROHIBIT RETRIAL OF A MANSLAUGHTER COUNT DENIED, ALTHOUGH THE FOURTH DEPARTMENT DISMISSED THE COUNT AFTER DETERMINING THE VERDICT WAS REPUGNANT, THE COURT OF APPEALS, AGREEING THAT THE VERDICT WAS REPUGNANT, HELD THAT THE PEOPLE COULD SEEK A SECOND INDICTMENT (FOURTH DEPT))

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