Posted on 03/06/2003 11:16:02 AM PST by wallcrawlr
WEST BLOOMFIELD TOWNSHIP, Mich. -- Nearly nine years ago, Desmon Venn threw a single punch at a high school classmate and put him in a coma. Venn pleaded guilty to assault, spent two months in a boot camp and figured he had paid his debt to society.
Then, last month, the victim died of his injuries, and prosecutors brought involuntary manslaughter charges against Venn.
Now 26, he could get up to 15 years behind bars if convicted in the death of Zuhair Pattah.
Venn's lawyer, Elbert Hatchett, said the charges violate Venn's constitutional protection against double jeopardy, or being prosecuted twice for the same crime. He also said the state's six-year window for filing an upgraded charge after such a crime has long since slammed shut.
``When they elected to prosecute him then, they forfeited the right to prosecute him thereafter for the same behavior,'' Hatchett said.
(Excerpt) Read more at startribune.com ...
Issue: What is an inclusory concurrent count?
The concept of "lesser included offense" is a familiar one. The term is provided for in CPL 1.20(37) and CPL 300.50. Less familiar but related terms, also found in CPL article 300, are "inclusory concurrent count," "concurrent count," and "non-inclusory concurrent count."
To understand the definition of inclusory concurrent count, one must understand the definition of a concurrent count. Once you understand inclusory concurrent count, all other concurrent counts are non-inclusory concurrent counts. It's probably a lot easier to use some examples.
Non-inclusory concurrent counts
The defendant in People v Kulakov, 278 AD2d 519, 716 NYS2d 824 (3d Dept 2000), was charged with several counts of Criminal possession of a weapon 3rd, Penal Law § 265.02. Convicted of all counts, and receiving concurrent sentences, he argued on appeal that the trial judge should not have allowed all of the charges to go to the jury. These charges were non-inclusory concurrent counts. The Third Department disagreed with defendant's argument: under the statute, the trial judge has discretion whether to dismiss or submit non-inclusory concurrent counts. CPL 300.40(3)(a). On appeal, the duplicative convictions stood. As Justice James Boomer explained in a Fourth Department decision, they "are concurrent counts because they were committed through a single act or omission. They are non-inclusory concurrent counts because one is not greater than the other and one does not contain all of the elements of the other."
People v Davis, 165 AD2d 610, 569 NYS2d 999 (4th Dept 1991) (citations omitted). The statute specifically provides that whether to submit multiple non-inclusory concurrent counts is in the trial judge's discretion. Part of the statute's rationale is that "multiplicity of counts or complexity of the indictment requires judicial trimming to prevent overburdening the jury." Preiser, Practice Commentary to McKinney's CPL 300.40. See also, People v Gettman, 188 Misc2d 809, 729 NYS2d 858 (County Ct 2001); Handling a Criminal Case in New York, 2001-2002 edition, § 3:64 (West Group). When you have one of those 37-count indictments, it's usually a situation of what in football circles is referred to as "piling on." If the prosecutor has no sense of discretion, the judge should.
Inclusory concurrent counts
With this concept firmly implanted in your short-term memory, let's move on to inclusory concurrent counts. With these, the trial judge submits the greatest count and perhaps the "lesser included counts." These lower counts are submitted in the alternative only. A guilty verdict on the highest count is deemed a dismissal of every lesser count. CPL 300.40(3)(b).
For example, in an Oneida County appeal, the defendant was convicted of Attempted murder 2nd degree and both Assault 1st degree and Assault 2nd degree, receiving concurrent sentences. Assault 2nd is a "lesser included offense" of Assault 1st; therefore the two assault counts should have been charged to the jury only in the alternative. The Assault 2nd conviction, an inclusory concurrent count, was dismissed. People v Fort (4th Dept March 2002). Where two or more counts arise out of the same incident and the counts allege the same subdivision of the Penal Law, only one of the convictions may stand. People v Griswold, 174 AD2d 1038, 572 NYS2d 202 (4th Dept 1991).
Assault is a "lesser included offense" - a crime that contains ALL the elements of the other crime but lacks an element (here, the death of the victim).
If the victim had died at the time of the incident, the perp would probably have been charged with assault and manslaughter. But at sentencing the two charges would have been combined ("merged for sentencing") because the assault would have been a lesser included offense of the manslaughter. All the evidence for the assault would have been "used up" in proving the manslaughter.
In this situation, which is really the opposite, we now have a new element that did not exist before: the death of the victim. Manslaughter is NOT a lesser included of assault, so the charges can be brought and they will stick.
You see the manslaughter or murder charge added quite frequently when the victim doesn't die immediately but days or weeks later. The only thing unusual here is the amount of time it took the poor victim to die. Killers don't get to claim double jeopardy because their victim clung to life for an unusual period of time.
No thank you, but I suspect you do (from your homepage):
Eidolons by Walt Whitman, Leaves of Grass: I met a seer, Passing the hues and objects of the world, The fields of art and learning, pleasure, sense, To glean eidolons. Put in thy chants said he, No more the puzzling hour nor day, nor segments, parts, put in, Put first before the rest as light for all and entrance-song for all, That of eidolons. Ever dim the beginning, Ever the growth, the rounding of the circle, Ever the summit and the merge at last, ( to surely start again,) Eidolons! eidolons! Ever the mutable, Ever changing, crumbling, re-coherer, Ever the ateliers, the factories divine, Issues eidolons. Lo, I or you, Or woman, man, state, known or unknown, We seeming solid weslth, strength, beauty build, But really build eidolons.
BTW, you are so lost in the wittiscm league that Toiletman and Captain Tucko look like Oscar Wildes next to you.
I knew Desmon personally and I can honestly say that his criminal activity was directly related to the pain and grief he caused the family. He had become a very angry and depressed individual directly afterwards but please don’t let that jade your opinion of him. He told me the story only once and I could see the pain and tears in his eyes at the incident. My heart goes out to the family of the victim. It was a situation where Venn was in a fight with the young man and due to his strength it went further than anyone could ever have expected having been in high school and throwing only one punch.
He has since served his time and is a great community leader, father, and hardworking citizen of Detroit, dedicating his life to Christ and being progressive in society. Much love and my heart goes out to the family of the victim. I just had to put this online because I know how it is to be misconstrued due to your past mistakes and it needed to be said. The memory of that incident tortured him and i believe sometimes still does. Let’s hope his story gets out there so youngsters who get themself into violent confrontations know that there can be deathly consequences and life is too fragile to take for granted. One Love - Nemesis
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