71 A.D.2d 782, People v. Garofalo

Citation:71 A.D.2d 782, 419 N.Y.S.2d 784
Party Name:People v. Garofalo
Case Date:July 26, 1979
Court:New York Supreme Court Appelate Division, Third Department
 
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Page 782

71 A.D.2d 782

419 N.Y.S.2d 784

The PEOPLE of the State of New York, Appellant,

v.

Frank S. GAROFALO, Respondent.

Supreme Court of New York, Third Department

July 26, 1979.

[419 N.Y.S.2d 785] Daniel T. Smith, Warren County Dist. Atty., Lake George, for appellant.

McPhillips, Fitzgerald, Meyer & McLenithan, Glens Falls (Joseph R. Brennan, Glens Falls, of counsel), for respondent.

Before MAHONEY, P. J., and SWEENEY, KANE, STALEY and HERLIHY, JJ.

MEMORANDUM DECISION

Appeal from an order of the County Court of Warren County, entered January 31, 1979, which granted a motion by defendant to suppress evidence.

Defendant was indicted for grand larceny in the second degree in connection with a scheme to defraud a customer of defendant's produce company by paying off the customer's employee to induce him to accept and approve produce shipments which were less than the billing invoices and orders reflected. As the larceny became apparent, the customer's employee, one William Herbaly, was questioned by a Sheriff's deputy who obtained from Herbaly inculpatory admissions. At the request of this officer, Herbaly agreed to conceal a tape recorder on his person and engage defendant in conversation concerning their joint enterprise. A recorder was provided, and Herbaly, unaccompanied by any police observers, met defendant on October 31, 1977 and made a recording. Three days later the tape was turned over to Deputy Crannell.

On October 25, 1978, defendant was indicted for grand larceny in the second degree, and he was arraigned on October 30, 1978, at which time he entered a plea of not guilty, and was released on bail. On December 14, 1978, defendant made an omnibus motion relative to the indictment returnable on January 2, 1979, which included the motion to suppress the tape recording, and, on January 12, 1979, the trial court granted the motion to the extent that the court would hold a hearing thereon prior to or at trial.

On January 30, 1979, the trial of the indictment was commenced, and a jury was impaneled. After the jury had been impaneled, the court held a hearing to determine whether the tape recording was admissible in evidence, or whether it should be suppressed. On January 31, 1979, at the opening of court, the trial court ordered the suppression of the tape recording.

The District Attorney stated his intent to appeal the decision pursuant to CPL 450.20, [419 N.Y.S.2d 786] and moved that the court declare a mistrial, excuse the jury and adjourn the proceedings pending an appeal. Defendant's attorney refused to consent to an adjournment, and stated his readiness to proceed to trial. Despite defendant's position, the court declared a mistrial and dismissed the jury.

Defendant now contends that the order granting the motion for suppression is not appealable. The People base the appeal on the provisions of subdivision 8 of section 450.20 of the Criminal Procedure Law. That subdivision authorizes an appeal by the People from an order suppressing evidence entered before trial. A jury trial commences with the selection of the jury (CPL 1.20, subd. 11). Here, a full jury was impaneled and sworn prior to the suppression hearing.

The right of the People to appeal in a criminal case is found only in statutes, which are to be strictly construed (Matter of State of New York v. King, 36 N.Y.2d 59, 63, 364 N.Y.S.2d 879, 882, 324 N.E.2d 351, 354; People v. Rossi, 5 N.Y.2d 396, 400, 185 N.Y.S.2d 5, 7, 157 N.E.2d 859, 861). No such jurisdiction can be found under CPL 450.20 (subd. 8), since the order suppressing the evidence was made after the jury was sworn, and, therefore, after the pre-trial stage of the proceedings. Defendant did not wait until the jury was sworn and then spring a suppression motion, thus forcing a post impanelment hearing. The motion to suppress was made December 14, 1978, and the court indicated on January 12, 1979 that the hearing would be held at or before trial, but, instead, the hearing was held after the trial had commenced, on January 30, 1979.

Defendant further contends that, if the People are not precluded from appealing the order of suppression pursuant to CPL 450.20, under the circumstances here, a retrial of the defendant on the same indictment would subject him to double jeopardy. Not every declaration of a mistrial prevents a retrial, but only in certain exceptional circumstances does the trial court have discretionary power to discharge a jury, and put the defendant to a new trial. A reason justifying the ordering of a mistrial in a criminal case must be "a necessitous one, actual and substantial" (Matter of Nolan v. Court of Gen. Sessions of County of N.Y., 11 N.Y.2d 114, 118, 227 N.Y.S.2d 1, 4, 181 N.E.2d 751, 753).

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