IN THE MATTER OF HARVEY O. BOOTH v. HONORABLE LEE CLARY, JUDGE OF JEFFERSON
COUNTY COURT, AND JAMES T. KING, JEFFERSON COUNTY DISTRICT ATTORNEY,
IN THE MATTER OF LESLIE BRIDGEWATER v. HONORABLE LEE CLARY, &C., AND
JAMES T. KING, JEFFERSON COUNTY DISTRICT ATTORNEY,
83 N.Y.2d 675, 635 N.E.2d 279, 613 N.Y.S.2d 110 (1994).
May 12, 1994
4 No. 82,83 (1994 NY Int. 089)
Decided May 12, 1994
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
BELLACOSA, J.:
The District Attorney of Jefferson County appeals in two cases seeking
to overturn the grant of writs of prohibition preventing his office
from prosecuting serious crimes committed by two off- duty soldiers
off military property. The petitioners-soldiers were tried and
convicted by a general court-martial for the identical conduct for
which they were also indicted in Jefferson County. The issue in each
case is whether a military tribunal is a court "of any jurisdiction
within the United States" within the meaning of CPL 40.30(1). If so,
New York's statutory double jeopardy protection bars the successive
prosecutions at issue in the discrete cases. We conclude that the
courts-martial constitute a statutorily intended "court" and must be
deemed previous prosecutions for purposes of the statutory bar of
subsequent prosecutions. The Appellate Division judgments barring the
prosecutions under the indictments should be affirmed.
In August 1991, the United States Army charged petitioner, Sergeant
Booth, with rape, carnal knowledge, sodomy, indecent assault in
violation of articles 120, 125 and 134 of the Uniform Code of Military
Justice (see, 10 USC §920 (a), (b); §§925, 934), and giving alcoholic
beverages to a minor in violation of Penal Law §260.20(4). The victim
was Booth's 13-year-old niece. The incident occurred on July 6, 1991
in the Village of Carthage, New York. Booth, represented by counsel,
waived trial by military jury. Following a trial by a military judge
on January 12, January 30 and March 10, 1992, Booth was convicted of
indecent assault in violation of article 134 of the Uniform Code of
Military Justice and sentenced on March 10, 1992 to confinement at
hard labor for two years at Fort Knox, Kentucky, reduced in rank,
discharged from the service with a bad conduct discharge and ordered
SNIPPETS:
IN THE MATTER OF HARVEY O. BOOTH v. HONORABLE LEE CLARY,
COUNTY COURT, AND JAMES T. KING, JEFFERSON COUNTY DISTRICT ATTORNEY,
This opinion is uncorrected and subject to revision before publication in the New York
The District Attorney of Jefferson County appeals in two cases seeking to overturn the grant
The issue in each case is whether a military tribunal is a court "of any jurisdiction within
New York's statutory double jeopardy protection bars the successive prosecutions at issue in
We conclude that the courts-martial constitute a statutorily intended "court" and must be
In August 1991, the United States Army charged petitioner, Sergeant Booth, with rape, carnal
Following a trial by a military judge on January 12, January 30 and March 10, 1992, Booth was
In December 1991, the Jefferson County Grand Jury indicted Booth for rape in the first
County Court denied the motion and the instant prohibition proceeding was commenced in the
In the second matter before this Court, also by its grant of leave to appeal, petitioner
During the pendency of the indictment, Bridgewater gave testimony and entered a guilty plea
The argument urges us to conclude that the Uniform Code of Military Justice is merely a
The prosecutor also claims a State equal protection of the laws violation, justifying the
The right not to be placed in jeopardy more than once for the same offense is a vital
These statutory double jeopardy provisions, whose application to this novel context we must
A person "is prosecuted" for an offense, within the meaning of section 40.20, when he is
We have held that a court-martial adjudication may serve as a prior felony for purposes of
The specific power exercised by military tribunals is bestowed by Congress pursuant to its
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