People ex rel. Thomas v. Judges of Family Court, Kings County

• Decision Date: 28 January 1976
• Citation: 85 Misc.2d 569,379 N.Y.S.2d 656
• Parties: The PEOPLE of the State of New York on the relation of Claire A. THOMAS, Law Guardian, on behalf of Keno White, a person alleged to be a juvenile delinquent, Petitioner, for a judgment under Art. 78 of the Civil Practice Law and Rules in the nature of Prohibition, v. The JUDGES OF the FAMILY COURT of the State of New York, COUNTY OF KINGS, Respondents.
• Court: New York Supreme Court

Page 656

379 N.Y.S.2d 656

85 Misc.2d 569

The PEOPLE of the State of New York on the relation of Claire A. THOMAS, Law Guardian, on behalf of Keno White, a person alleged to be a juvenile delinquent, Petitioner, for a judgment under Art. 78 of the Civil Practice Law and Rules in the nature of Prohibition, v. The JUDGES OF the FAMILY COURT of the State of New York COUNTY OF KINGS, Respondents.

Supreme Court, Special Term, Kings County, Part I.

Jan. 28, 1976.

Charles Schinitsky, Legal Aid Society, Brooklyn (Claire A. Thomas, Brooklyn, of counsel), for petitioner, Keno White.

Louis J. Lefkowitz, Atty. Gen. of N.Y., New York City, A. Seth Greenwald, Asst. Atty. Gen., for respondent Judges.

MEMORANDUM

THOMAS R. JONES, Justice.

Fifteen-year old Keno White has petitioned the Supreme Court, pursuant to CPLR 78, to prohibit the judges of the Family Court from reopening a fact-finding hearing by which he may be adjudged a juvenile delinquent, on the grounds that he will thereby be subjected to double jeopardy in violation of the Fifth and 14th Amendments to the United States Constitution, and contrary to Article One, section Six, of the New York State Constitution. ¹

The petitioner contends that he had already been exposed to jeopardy of his liberty in the Family Court on July 21, 1975 when a witness was sworn and testified against him in an adjudicatory hearing, based upon a petition which charged him with criminal assault. In the midst of that proceeding the court declared a mistrial, over the objections of the law guardian for the petitioner. In fact, the presiding judge ordered the mistrial, Sua sponte, and for his own convenience. The judge remarked as he did so:

'I am disqualifying myself and declaring a mistrial * * * I'm sitting here only to the end of next week, and then I move on to other parts of the City' (p. 20 of transcript dated July 21, 1975).

Next day, July 22, 1975, the presiding judge, on his own initiative, recalled the case and abrogated the mistrial order for the purpose of reinstating the adjudicatory hearing against the accused. The law guardian again objected and raised the constitutional issue of double jeopardy as a bar.

The petition for a Writ of Prohibition is granted Lee v. County Court of Erie County, 27 N.Y.2d 432, 437, 318 N.Y.S.2d 705, 709, 267 N.E.2d 425, 454 (1971); cf. also Mtr. of Ferlito v. Judges, County Court, Suffolk County, et al. (Second Department, 1972), 39 A.D.2d 17, 18, 331 N.Y.S.2d 229, 230, affd. 31 N.Y.2d 416, 340 N.Y.S.2d 635, 292 N.E.2d 779 (1972); Matter of Kraemer v. County Court of Suffolk County, 6 N.Y.2d 363, 189 N.Y.S.2d 878, 160 N.E.2d 633 (1959); Matter of Nolan v. Court of General Sessions, 15 A.D.2d 78, 222 N.Y.S.2d 635 (First Dept., 1961) aff'd. 11 N.Y.2d 114, 227 N.Y.S.2d 1, 181 N.E.2d 751 (1962)). Jeopardy attached against the petitioner on July 21, 1975 when a witness was sworn and testified in the fact-finding hearing. The object of that proceeding was to determine whether the accused had committed an assault upon another person which violated the criminal law. ² The result of the hearing might have been to deprive the respondent of his liberty for as long as three years. ³ The presiding judge should not have declared a mistrial, in view of the law guardian's objections, since there was no 'manifest necessity' for doing so, nor would the 'ends of public justice have been defeated' had he not done so (cf. United States v. Perez, 9 Wheat. (22 U.S.) 579, 6 L.Ed. 165, 1824). On May 27, 1975 the United States Supreme Court declared that juvenile defendants are entitled to the protections of the 5th Amendment to the United States Constitution in Breed v. Jones (421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346). In crystal-clear language the court announced that juveniles enjoy the full panoply of constitutional rights which guard the liberties of adults accused of crime, in Family Court adjudicatory proceedings, except the right to a trial by jury (cf. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) ⁴; U.S. ex rel. Murray v. Owens, 465 F.2d 289 (1972), cert. den. 409 U.S. 1117, 93 S.Ct. 930, 34 L.Ed.2d 701). The Supreme Court has now issued precise injunctions to State Juvenile Courts commanding them, Inter alia, to accord young defendants accused of crime the same Fifth Amendment safeguar against double jeopardy as adults. The court was prompted to speak specifically to the double jeopardy question because it was confronted with:

'* * * a conflict between the courts of appeals and the highest courts of a number of States on the issue presented * * * and similar issues, and because of the importance of final resolution of the issue to the administration of the juvenile court system' (421 U.S. at 527, 95 S.Ct. at 1784).

The mandate of the Breed decision applies to this case, for the reason that the Fifth Amendment right against double jeopardy attaches to State action under the 14th Amendment (cf. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)). In every fact-finding hearing, when a respondent is:

'* * * 'put to trial before the trier of the facts,' * * * that is, when the Juvenile Court, as the trier of the facts, (begins) to hear evidence. (See, Serfass v. United States, 420 U.S. 377 at 388, 95 S.Ct. 1055, 43 L.Ed.2d 265)' ⁵ (421 U.S. at 531, 95 S.Ct. at 1787.)

The State of New York may not deprive its delinquent children of their constitutional rights under the ancient doctrine of 'parens patriae,' when it charges them with crimes. ⁶ As Associate Justice Fortas, speaking for the Supreme Court in Kent v. United States (383 U.S. 541, 556, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84 (1966)), mournfully observed:

'(T)here is evidence, in fact * * * that the child receives the worst of both worlds: * * * he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.'

The President's Commission on Law Enforcement and Administration of Justice, Task Force Report on Juvenile Delinquency and Crime, published in 1967, confirmed the Supreme Court's findings in Kent, and said:

'(T)he great hopes originally held for the juvenile court have not been fulfilled. It has not succeeded significantly in rehabilitating delinquent youth, in reducing or even stemming the tide of juvenile criminality, or in bringing justice and compassion to the juvenile offender.' (pg. 7)

The Supreme Court was compelled to speak out again in defense of the constitution rights of children in an historic opinion, In Re Gault (387 U.S. 1, 14--17, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), when it declared that the states' 'parents patriae' claims in relation to children in trouble had become a sham. Juvenile Courts were criticized for failing to attempt the reconstruction of the lives of juvenile delinquents by tender care and humane measures. Instead, the court found that judges and other state officials maintained the young offender in prisons where:

'His world becomes 'a building with whitewashed walls, regimented routine and institutional hours . . ..' Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and 'delinquents' confined with him for anything from waywardness to rape and homicide' (387 U.S. at 27, 87 S.Ct. at 1443).

When a number of state Juvenile Courts persisted in ignoring the spirit of Gault and relentlessly subjected delinquent children to the 'worst of both possible worlds,' the Supreme Court ended the charade by which judges pretended to act as 'parens patriae,' in the Breed decision.

There was no legal justification, i.e., no 'manifest necessity' for the declaration of a mistrial in the midst of the Family Court adjudicatory hearing (cf. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 1022, 43 L.Ed.2d 232 (1975)). When the juvenile's law guardian moved for a continuance in order to obtain a transcript of the previous testimony of a witness for the purposes of cross examination, the court should have acquiesced (see pg. 20 of transcript). Instead, the judge declared a mistrial because he had been assigned to work in another county! He claimed that he could not or would not return to Kings County to complete the pending case (see pg. 20 of transcript dated July 21, 1975). The rotation of Family Court Judges from county to county and from one jurisdiction to another for administrative purposes cannot justify the declaration of a mistrial for the convenience of the court system. ⁷

For 150 years it has been the law that a mistrial may be ordered in a case only when the presiding judge has determin that '* * * there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.' (United States v. Perez, supra.) The court's decision to do so must be supported by circumstances that are imperative and substantial (cf. Matter of Nolan v. Court of General Sessions, 11 N.Y.2d 114, 118, 227 N.Y.S.2d 1, 4, 181 N.E.2d 751, 753 (1962); Matter of Snee v. County Court of Cayuga, 31 A.D.2d 303, 307, 297 N.Y.S.2d 414, 419 (4th Dept. 1969); Matter of Art v. City Court of the City of Rochester, 35 A.D.2d 1062, 316 N.Y.S.2d 492 (4th Dept. 1970); United States v. Holland, 378 F.Supp. 144, 152 (E.D.Pa., 1974), affd. sub nom. Ehly v. United States, 506 F.2d 1050, cert. den. 420 U.S. 994, 95 S.Ct. 1433, 43 L.Ed.2d 676). Among several imperatives which appellate courts have considered appropriate bases for mistrials, without a defendant's consent, are, viz., when the court found that it was '* * * physically impossible to proceed with the trial in conformity with law' or on 'gross misconduct by the defendant.' (Criminal Procedure Law, § 280.10, subds. 2 and 3); in the event of 'death or serious illness of the judge or other essential court personnel' (People ex rel. Epting v. Devoe, 309 N.Y. 818, 130 N.E.2d 616 (1955)); in a case of the 'serious illness of ...