Art v. City Court of City of Rochester

• Decision Date: 03 December 1970
• Citation: 35 A.D.2d 1062,316 N.Y.S.2d 492
• Parties: Application of George ART, Appellant, v. CITY COURT OF the CITY OF ROCHESTER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 492

316 N.Y.S.2d 492

35 A.D.2d 1062

Application of George ART, Appellant, v. CITY COURT OF the CITY OF ROCHESTER et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Dec. 3, 1970.

Nusbaum, Tarricone, Bilgore, Weltman & Silver, Kenneth I. Albert, Rochester, for appellant.

Jack B. Lazarus, Roderick Cunningham, Rochester, for respondents.

Before GOLDMAN, P.J., and DEL VECCHIO, WITMER, GABRIELLI and BASTOW, JJ.

MEMORANDUM:

In the Article 78 proceeding petitioner-appellant appeals from Special Term's denial of his petition to prohibit and enjoin the City Court of Rochester and the District Attorney of Monroe County from retrying petitioner on the charge of assault third degree on the ground that such a retrial would violate his constitutional immunity against twice being put in jeopardy for the same offense. Petitioner and one Nowakowski swore to cross complaints claiming that each had assaulted the other. After all the proofs were closed and before the cases were submitted to the jury, the presiding City Court Judge on his own motion declared a mistrial as to both parties and asserted as his reason that the cases should not have been tried together. He further stated with admirable candor that the responsibility for this error was solely his own. Neither party had requested the declaration of a mistrial. It has been long established in this State that one is put in double jeopardy by a second trial if on a prior trial 'a jury has been examined and sworn, and evidence given' (People ex rel. Meyer v. Warden, 269 N.Y. 426, 428, 199 N.E. 647, 648). This principle has been reasserted many times (Mtr. of Bland v. Supreme Ct. N.Y. Co., 20 N.Y.2d 552, 554, 285 N.Y.S.2d 597, 598, 232 N.E.2d 633, 634; People v. Jackson, 20 N.Y.2d 440, 446, 285 N.Y.S.2d 8, 14, 231 N.E.2d 722, 727). In the instant case, the ground stated by the Court for declaring the mistrial Sua sponte does not meet the test laid down in Mtr. of Nolan v. Court of Gen. Sessions, 11 N.Y.2d 114, 118, 227 N.Y.S.2d 1, 4, 181 N.E.2d 751, 753, for the record fails to establish that the reason was 'a necessitous one, actual and substantial'. Although it would have been preferable practice for petitioner to have moved to dismiss the complaint on the double jeopardy ground, he is not precluded from seeking relief in an Article 78 proceeding in the nature of prohibition (Mtr. of Snee v. County Ct. of Cayuga, 31 A.D.2d 303, 297 N.Y.S.2d 414). The respondents should be...