Opinion
May 21, 1996
Appeal from the Supreme Court, New York County (Alvin Schlesinger, J.).
During defendant's first trial, the jury was not charged on any lesser included offense. After his conviction on the sole count of the indictment charging first-degree robbery, defendant appealed to this Court seeking a new trial due to a Sandoval error and dismissal of the indictment due to insufficient evidence. After finding there was a Sandoval violation and that the evidence was insufficient with respect to the greater charge, but sufficient as to third-degree robbery, this Court reversed the conviction, but granted the People leave to represent the lesser charge ( 203 A.D.2d 106, lv denied 84 N.Y.2d 871). Upon his re-indictment for third-degree robbery, defendant moved to dismiss the new indictment on double jeopardy grounds.
The hearing court correctly dismissed the indictment since this Court's insufficiency finding on the first-degree robbery charge was tantamount to an acquittal ( Burks v. United States, 437 U.S. 1, 16) and the lesser included third-degree robbery charge was the "`same offense'" as first-degree robbery for double jeopardy purposes, thus barring a retrial ( United States v. Dixon, 509 U.S. 688, 696, citing Brown v. Ohio, 432 U.S. 161).
The husband and wife owners were present during the robbery of their bar. The original indictment filed by the People pertained solely to the wife. Since the People had sufficient evidence with which to proceed on an indictment against defendant with respect to the robbery of the husband, the court correctly dismissed the first count of the new indictment pertaining to the husband (CPL 40.40).
Concur — Murphy, P.J., Sullivan, Ross and Tom, JJ.