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[54 A.D.2d 1083 Page 1083] Memorandum: On October 24, 1974 defendants, Ruzas and Donovan, committed an armed robbery in Onondaga County and while in flight shot and killed a New York State Trooper in Madison County. They were tried and convicted for felony murder in Madison County and sentenced to periods of imprisonment for terms of at least 25 years to life. Following their subsequent indictments in Onondaga County for the felonies committed in that county, the defendants successfully moved for dismissal of the robbery, larceny, unlawful imprisonment and criminal possession of a weapon counts in the indictments. The People appeal the dismissal of these indictments. It is the People's position on this appeal that the Onondaga felonies could not be joined in one accusatory instrument in Madison County because, the People contend, Madison County lacked geographical jurisdiction over the Onondaga felonies (CPL 20.40). The People's argument continues that because the Onondaga crimes were, therefore, not jointly prosecutable offenses with those previously tried in Madison, the bar of CPL 40.40 which prohibits separate prosecutions for crimes jointly prosecutable did not apply, hence the Onondaga indictments should not have been dismissed. The instant case presents a situation where Madison County did not indict the defendants for the Onondaga felonies but, rather for murder and murder second. It is clear from the record that the predicate felony in the felony murder charge was the robbery committed in Onondaga County. The Criminal Procedure Law adopts an approach looking not at the components of offenses arising out of the same transaction or the evidence necessary to establish those offenses, but at the nature of the transaction itself. The standard, in the words of Mr. Justice Brennan, 'not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience' (Ashe v. Swenson, 397 U.S. 436, 454) (People v Fernandez, 43 A.D.2d 83, 89). The enactment of CPL 40.40 is the legislative response to a problem that has proved highly perplexing to the United States Supreme Court and other tribunals. It deals with repeated prosecutions for different and factually distinct offenses arising out of the same criminal transaction under circumstances wherein no violation of the [54 A.D.2d 1083 Page 1084]

Professional & Technical
November 5
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