Miracle Max: It just so happens that your friend here is only mostly dead. There's a big difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there's usually only one thing you can do.
Inigo Montoya: What's that?
Miracle Max: Go through his clothes and look for loose change.
As the decision of the Appellate Division, Fourth Department, in People v Sanders (2011 NY Slip Op 07100 [4th Dept 10/7/11]) shows, that distinction parallels the distinction between a void conviction and a voidable one. One is as though it never was. And the other, invalidly obtained is still slightly alive.
In Sanders, the Court considered the application of the double jeopardy protections to a voidable conviction. Upon Mr. Sanders' convictions for Criminally Negligent Homicide and Assault the People sought persistent felony offender status for defendant based, in part, on his 2003 assault conviction. Sanders opposed persistent felony offender status on grounds that his 2003 guilty plea was to a charge not contained in the felony complaint and not a lesser included offense, and that his right to be indicted by a grand jury had thus been violated . The court agreed with defendant, finding "that the [*2]defendant's conviction . . . in 2003 was jurisdictionally defective and a nullity and cannot be counted in determining that he is a persistent felony offender" (People v Sanders, 24 Misc 3d 1232[A], 2009 NY Slip Op 51693[U], *2).
While the 2003 conviction was jurisdictionally defective and voidable, Sanders never moved to vacate it. Despite the fact that the 2003 conviction had never been vacated, the People proceeded to present evidence of the assault upon that conviction was based to a grand jury and obtained an indictment charging Sanders with assault in the first degree based upon the same incident for which he had pleaded guilty to assault in the second degree in 2003. The County Court granted Sanders' motion to dismiss on double jeopardy grounds, since the 2003 conviction had not been vacated. The People appealed and the Appellate Division, Fourth Department affirmed even though the 2003 conviction was based on a jurisdictionally defective SCI. Relying on Matter of Campbell v Pesce (60 NY2d 165), the Court held that
Although the constitutional Double Jeopardy Clauses do not bar a second prosecution where the prior judgment of conviction has been vacated upon the defendant's motion or appeal because of an error in the proceedings (see Lockhart v Nelson, 488 US 33, 38; United States v Tateo, 377 US 463, 465-467), the 2003 judgment of conviction has never been vacated. The judgment of conviction is still on defendant's criminal record and would presumably remain on his record even if he were convicted in the instant prosecution. We do not see how there can be two separate convictions on defendant's record for the same offense without implicating the constitutional prohibition against double jeopardy.