Kessler v. Sherman

Jones, J. (dissenting).

It is not disputed that the State now seeks to prosecute appellant for an offense under State statute based on the same act or criminal transaction that was the predicate for the town offense of which he was acquitted. The majority concludes that the prospective State prosecution in this instance falls within the exception of CPL 40.20 (subd 2, par [b]) and accordingly is not prohibited by CPL 40.20. I cannot agree.

Paragraph (b) lays down two requirements. First, each of the potentially duplicative offenses must contain an element which is not an element of the other.…