How Does Double Jeopardy Work in a New York Criminal Case?

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How Does Double Jeopardy Work in a New York Criminal Case?


When you’re charged with a crime in New York, it’s important to understand how criminal procedure could impact your case. It’s also important to understand your rights. Double jeopardy protection is one of your rights, and a good criminal defense attorney can use it to protect you in some scenarios. 

Under normal circumstances, you should only be tried for a criminal case once. The Fifth Amendment enshrines your right to avoid successive prosecutions for the same alleged act through the Double Jeopardy Clause

The Double Jeopardy Clause provides three rights:

  1. The defendant will not face a second prosecution after an acquittal.
  2. The defendant will not face a second prosecution after a conviction.
  3. The defendant will not receive multiple punishments for the same offense.

New York also has Double Jeopardy laws, enshrined in Article 40, section 20. Under New York Law:

  1. A person may not be prosecuted twice for the same offense.
  2. A person may not be separately prosecuted for two offenses based on the same act or criminal transaction, though there are exceptions to this rule defined under the law. 
  3. If you are tried for a crime in another state and the case is dismissed due to insufficient evidence, you cannot be tried for the same crime in New York, even if the evidence is different in each case.

There are exceptions to the double jeopardy clause. 

“Same Act” Exceptions

Under New York law, prosecutors may separately prosecute you for two offenses based on the same criminal act if:

  • The offenses, as defined, have substantially different elements
  • Each charge addresses different kinds of harm or evil
  • One offense is drug possession, and the other is drug use
  • One offense is an assault on a person, and the other is homicide if the death occurs after prosecution for assault
  • Each offense involves death, injury, loss, or other consequences to a different victim
  • You were tried for a crime in another state that New York also has some standing in and then acquitted, but New York believes they have additional evidence or enough evidence to convict you. 
  • If the crime resulted from conspiracy, facilitation, or solicitation that was prosecuted in another state (i.e., your crime in another state had a ripple effect that spilled over into New York). 
  • One offense is corruption under New York law, racketeering under federal law, or any comparable offense pursuant to the law of another state if the crimes were part of the same criminal enterprise.
  • One offense is to evade federal taxes, and the other is to evade New York taxes

As you can see, double jeopardy can get complex even under state law. Federal law complicates it all the further. 

Dual Sovereignty Exceptions

In the 1922 Supreme Court case United States v. Lanza, the court ruled that it is constitutionally permissible to try someone both under federal law and under state law. Their reasoning was the Fifth Amendment only prevents the federal government from pursuing you for the same crime twice. 

In reality, this doesn’t happen very often. It’s more common for either the state or the federal government to move forward with the prosecution. When it happens, the federal government and the state usually agree to prosecute a crime. Only one of them will be able to convict. The defendant could be tried separately and even sentenced separately, but the defendant would typically serve the sentence imposed by the court that imposed the longest sentence (which would usually be the federal court). 

Usually, a dual prosecution would happen for drug trafficking, terrorism, murder, robbery, kidnapping, arson, fraud, embezzlement, money laundering, or tax evasion charges. 

Get Help Today 

If you are facing criminal charges of any kind, it’s important to speak to an experienced criminal defense attorney. If you think you may be prosecuted at both the state and federal levels, it’s important to speak to an attorney with experience in both courts.

The team at Greco Neyland has the level of experience you need to bring your case to its best possible outcome. If you’re in trouble, contact us to get help today. 

See also: 

4 Signs the Feds Are Investigating You 

Understanding the Classes of New York Felony Charges 

What You Should Do if Federal Agents Raid Your Home or Business

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