§ 7012.Redetention after discharge.

This section replaces the first paragraph and the four numbered subdivisions of CPA § 1269. The purport of the former provision was aptly stated in 21 Carmody-Wait, Cyclopedia of New York Practice 109 (1956): “Discharge is merely from custody and not from the penalty; it does not operate as an acquittal, and is not in itself a bar to a subsequent indictment or other appropriate civil or criminal proceedings. If a better jurisdictional foundation can be laid, the fact that the old one was found to be defective in a habeas corpus proceeding will not, in itself, prevent reimprisonment”. Subds 1 and 2 of CPA § 1269 each permitted commitment on an order subsequent to release if the order is lawful. They might be read as applying only to commitments prior to trial. So read, they might be interpreted as an attempt to exclude the rearrest where double jeopardy could be claimed. Ample protection against rearrest in such situations, however, is found in the Code of Criminal Procedure. See, e.g., Code Crim Proc §§ 332(3), 334(4), 340, 341, 354(2), 442(2). Those subdivisions thus appear to serve no purpose. Subd 3 of CPA § 1269 had the same effect in civil actions and proceedings as did subds 1 and 2 in criminal actions, and served no need not met by this section. Subd 4 did contain a limitation on rearrest. Apparently it applied to discharges after arrest as a provisional remedy. A further arrest after discharge is possible only as part of final process or as mesne process in another action or proceeding begun after the first was discontinued. Problems of arrest as a provisional remedy are treated in the provisions limiting that remedy. See article 61. So far as habeas corpus is concerned, sufficient protection is provided by a requirement that a subsequent commitment be based on a subsequent lawful order. This section provides this as the sole criterion. The term “detention” is intended to include both the magistrate’s commitment contemplated by § 208 of the Criminal Code and imprisonment after conviction.

The last paragraph of CPA § 1269 has been deleted. An aggrieved party’s right to compensation for his wrongful detention may be satisfied in an action for false imprisonment. That part of the last paragraph making a wilful violation of the section a misdemeanor is already provided for in § 1788 of the Penal Law. The latter provision, however, has been amended to delete mention of the writ of certiorari and to remove its provision for a civil action to recover forfeitures against those violating CPA § 1269 as follows (brackets indicate deletions): § 1788. Re-confining person discharged upon writ of habeas corpus.

A person, who either solely, or as a member of a court, or in the execution of a judgment, order or process, knowingly recommits, imprisons or restrains of his liberty, for the same cause, any person who has been discharged from imprisonment upon a writ of habeas corpus [, or certiorari] is guilty of a misdemeanor, punishable by a fine not exceeding one thousand dollars or by imprisonment not exceeding six months, or both [; and in addition to the punishment prescribed therefor, he forfeits to the party aggrieved, one thousand two hundred and fifty dollars to be recovered in a civil action].

Add, L 1962, ch 308, eff Sept 1, 1963.