Bland v. Supreme Court, New York County

• Decision Date: 29 November 1967
• Citation: 232 N.E.2d 633,20 N.Y.2d 552,285 N.Y.S.2d 597
• Parties: , 232 N.E.2d 633 In the Matter of Roy BLAND, Appellant, v. The SUPREME COURT, COUNTY OF NEW YORK et al., Respondents. In the Matter of William MURRAY, Appellant, v. SUPREME COURT, COUNTY OF NEW YORK et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 597

285 N.Y.S.2d 597

20 N.Y.2d 552, 232 N.E.2d 633

In the Matter of Roy BLAND, Appellant, v. The SUPREME COURT, COUNTY OF NEW YORK et al., Respondents.

In the Matter of William MURRAY, Appellant, v. SUPREME COURT, COUNTY OF NEW YORK et al., Respondents.

Court of Appeals of New York.

Nov. 29, 1967.

Steven D. Slepian and Anthony F. Marra, New York City, for Roy Bland, appellant.

Philip Gelfand, New York City, for William Murray, appellant.

Frank S. Hogan, Dist. Atty. (Robert D. MacLachlan, Jr., and H. Richard Uviller, New York City, of counsel), for respondents.

VAN VOORHIS, Judge.

The petitioners appeal, on constitutional grounds, from orders of the Appellate Division, First Department, which unanimously denied their applications for orders prohibiting the Supreme Court, New York County, and the District Attorney of New York County from proceeding against the petitioners under an indictment.

The petitioners were charged with robbery in the first degree, grand larceny in the first degree, assault in the second degree and criminally possessing a loaded pistol as a felony. The indictment was returned on June 24, 1966. Selection of a jury in Supreme Court, New York County, was commenced on February 10, 1967. On February 16, 1967, after the jury was impaneled and sworn, the prosecutor requested a continuance until February 20, 1967. A continuance was granted. On February 20 a further continuance was sought by the prosecutor upon the ground that he could not locate one of the complaining witnesses. A continuance was granted over objection until 2:00 P.M. of that day, when the prosecutor informed the court that he had not located one of the complaining witnesses but another complaining witness was present. Petitioners moved to dismiss the indictment for failure to prosecute. The court denied the motion, and declared a mistrial. When the case was again moved for trial the defense of double jeopardy was raised. The court ruled that there was no double jeopardy and set the case down for trial. The petitioners argue that it would violate the double jeopardy rule to compel them to stand trial on the indictment.

It is evident that the Trial Justice in granting a mistrial acted in the belief that the time-honored rule in New York State still obtained that an indicted defendant, who has pleaded not guilty, is not placed in jeopardy until the jury has been examined and sworn, and evidence given (People v. Jackson, 20 N.Y.2d 440, 231 N.E.2d 722, 285 N.Y.S.2d 8; People ex rel. Meyer v. Warden, 269 N.Y. 426, 199 N.E. 647; People v. Clark, 3 A.D.2d 700, 159 N.Y.S.2d 66; People v. Ercole, 2 Misc.2d 1015, 154 N.Y.S.2d 128, affd. 4 A.D.2d 881, 167 N.Y.S.2d 548, revd. on other grounds 4 N.Y.2d 617, 176 N.Y.S.2d 649, 152 N.E.2d 77; People ex rel. Blue v. Kearney, 181 Misc. 981, 44 N.Y.S.2d 691, affd. 292 N.Y. 679, 56 N.E.2d 102; King v. People, 5 Hun 297; cf. A.L.I., Model Penal Code, § 1.08 and Comment to § 1.09, Tent. Draft No. 5, p. 53; 22 C.J.S. Criminal Law § 241, p. 638).

The cases cited established the law as it has been followed in New York ever since our courts departed from the English rule requiring a prior judgment of conviction or acquittal before barring a later prosecution for the same offense. (Cf. People v. Barrett, 2 Canies 304).

The precise point in a trial at which jeopardy attaches varies somewhat in the different States and the Federal courts. The object is to prevent a defendant from being harassed by the prosecuting officers through repeated mistrials unless granted for good cause shown. Some stage in the prosecution must be marked somewhat arbitrarily as the cutoff point after which a defendant is deemed to have been placed in jeopardy in order to prevent harassment. It makes little difference whether this point be regarded as having been reached when the oath is administered to the jury or when the first witness for the People is sworn. If a prosecutor were attempting to harass a defendant, he could refrain from having the jury sworn, if jeopardy attaches at that point, and whether the point is reached on swearing the jury or the first witness makes little difference in protecting a defendant's rights. Downum v. United States (372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100), as we understand it, held that there was no manifest necessity under the circumstances of that case to grant a mistrial on account of the nonattendance of one of the People's witnesses, and that the plea of double jeopardy should be sustained on the second trial inasmuch as the defendant had been subject to jeopardy, under the Federal rule, after the jury had been selected and sworn upon the first trial. We do not interpret that decision as requiring all of the State decisions to be uniform concerning the precise point in the trial when jeopardy attaches, or to impose a constitutional requirement that a defendant shall be deemed to have been placed in jeopardy at exactly the same stage in the trial that has been adopted in the Federal courts, e.g., when the jury has been sworn. The thrust of that decision appears to be that when the point of jeopardy has passed, a mistrial cannot be declared in order to obtain a witness for the People whose presence was known to be doubtful when the trial commenced. Although it is our endeavor to conform our State procedures as nearly as may be to the Federal practice (People v. McQueen, 18 N.Y.2d 337, 344, 274 N.Y.S.2d 886, 221 N.E.2d 550), nothing of substance would seem to be gained by changing the time-honored New York rule determining when jeopardy attaches in a respect which is merely technical and is not related to the essence of what constitutes double jeopardy.

Inasmuch as appellant had not been placed in jeopardy in the first trial, since no witness had been sworn, it is unnecessary to reach the question concerning whether the granting of a mistrial was a manifest necessity in order to enable the prosecution to locate one of its witnesses (see Matter of Nolan v. Court of Gen. Sessions, 11 N.Y.2d 114 227 N.Y.S.2d 1, 181 N.E.2d 751; Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974).

The orders appealed from should be affirmed.

BREITEL, Judge (dissenting).

The issue, raised in prohibition proceedings, is whether a defendant in a criminal prosecution is placed in jeopardy when a mistrial is declared, solely because of the unavailability of witnesses for the prosecution, after the impanelling of the jury but before the introduction of evidence.

On June 24, 1966 petitioners were indicted for the robbery of Ernest Neal. In preparing his case during January and February of 1967, the prosecutor subpoenaed victim Neal and an eyewitness, Fred Chaffin. Both appeared in his office on February 10, the date when jury selection was begun, and promised to return on February 14. When neither witness appeared on that date, a police search was started, and material witness papers were later prepared. Nevertheless, the prosecutor continued with the selection of jurors. The impanelment was completed on February 16, and the prosecutor obtained an adjournment to February 20. When the case was resumed on the 20th, Neal was still missing, although witness Chaffin was in custody as a material witness. Consequently, the Trial Judge, on his own motion and over the petitioners' objections, declared a mistrial and set the case down for retrial on February 27.

Under the rule which prevails in all the other States which have considered the question and in the Federal courts, jeopardy attaches in a jury-tried case 'when a person has been placed on trial on a valid indictment or information before a court of competent jurisdiction, has been arraigned, and has pleaded, and a jury has been impaneled and sworn'. (22 C.J.S. Criminal Law § 241, p. 637, citing some 33 States in accord; see, e.g., Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100; Whitmore v. State, 43 Ark. 271; Kennick v. State, 107 So.2d 59 (Fla.App., 1958) (dictum); Gillespie v. State, 168 Ind. 298, 80 N.E. 829; State v. Yokum, 155 La. 846, 99 So. 621 (dictum); Pickens v. State, 393 P.2d 889 (Okla., 1964); Cornero v. United States, 48 F.2d 69 (9th Cir., 1931); 1 Bishop, Criminal Law (9th ed.), § 1015; 1 Cooley, Constitutional Limitations (8th ed.), pp. 686--687; 1 Wharton, Criminal Law and Procedure (Anderson ed.), § 138 (citing 26 States in accord); but cf. A.L.I., Model Penal Code, § 1.08 and Comment to § 1.09, Tent.Draft No. 5, p. 53, recognizing the rule but suggesting adoption instead of a provision requiring the swearing of a witness; Proposed New York Criminal Procedure Law (Temporary Commission on Revision of the Penal Law and Criminal Code, 1967), § 20.30, incl. Staff Comment.)

In its recent decision in Downum v. United States (supra) the Supreme Court applied the prevailing rule in terms relevant to the instant case. The prosecutor in the Downum case--like the one in this case--allowed 'the jury to be selected and sworn even though one of (his) key witnesses was absent and had not been found' (372 U.S. 734, 735, supra, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100). When the witness failed to appear before the taking of any evidence, a mistrial was declared. The Supreme Court held that jeopardy had attached and that the risk of the witness' nonappearance lay with the prosecution. It acknowledged, however, that the absence of witnesses might justify discontinuance of a trial under the 'manifest necessity' doctrine applied in cases such as Wade v. Hunter (336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974).

In the Wade case, a change in the military situation made it impossible for the prosecutor to produce witnesses at a war-time court-martial. Unlike the instant case, this difficulty arose after the point of jeopardy had been passed. Thus it could not be said that the prosecutor there went to trial without first securing the presence of necessary witnesses. Of course, here, the prosecutor was undoubtedly relying...