Cardin v. Sedita

• Decision Date: 12 July 1976
• Citation: 385 N.Y.S.2d 667,53 A.D.2d 253
• Parties: In the Matter of James CARDIN, Petitioner, v. Hon. Joseph A. SEDITA et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 667

385 N.Y.S.2d 667

53 A.D.2d 253

In the Matter of James CARDIN, Petitioner, v. Hon. Joseph A. SEDITA et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

July 12, 1976.

Markel, Trammell & Santa Lucia, Buffalo, for petitioner (Sheldon Markel, Buffalo, of counsel).

Edward C. Cosgrove, Dist. Atty., Buffalo, for respondents (Judith Manzella, Buffalo, of counsel).

Before CARDAMONE, J.P., and MAHONEY, DILLON, GOLDMAN, WITMER, JJ.

OPINION

GOLDMAN, Justice.

In this article 7, proceeding, originating in this court, petitioner seeks a judgment of permanent prohibition to bar his retrial on a charge of possession of a controlled substance in the third degree. The first trial was terminated when the court Sua sponte declared a mistrial over the defendant's objection, after the jury had been sworn and six prosecution witnesses had testified. Petitioner's principal contention, and the only one we need consider, is that a retrial would subject him to double jeopardy (U.S.Const., Fifth Amdt.; N.Y.Const., Art. I, § 6, CPL, § 40.20, subd. (1)).

The drugs to which the possession charge had reference were seized in petitioner's apartment when police went there with warrants to arrest him and another occupant for narcotic sales which allegedly occurred some 5 months earlier. Charges based on those sales were pending against petitioner at the time of his trial on the possession charge. In a ruling after a pretrial Sandoval hearing (People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413), the court forbade inquiry into the pending sale charges. When defense counsel expressed concern that police witnesses would mention those charges in explaining their presence at petitioner's apartment, the court ruled that the police witnesses could 'say that they were there to execute warrants' but could not reveal the nature of the warrants. The prosecutor expressly agreed to instruct his witnesses 'that they will not say what the warrants were for'.

During the trial, the court's ruling was violated by two successive police witnesses.

The first violation occurred when the People's fifth witness was asked on cross-examination whether he had thought he would have to testify regarding the possession charge. He answered: 'Yes. Well, I already had charges, sale charges, which I thought were stronger than the possession * * *'. Thereupon the defense, out of the presence of the jury, moved for a mistrial. In response to questions by the court, the witness said he did not remember whether the prosecutor had told him not to talk about the charges underlying the arrest. The prosecutor said he 'certainly thought' he had so instructed the witness. The court reprimanded the witness for answering unresponsively, and instructed him not to say why he was at the apartment 'outside of the execution of a 'warrant', and not to 'refer to any underlying charges'. The mistrial motion was denied, the court stating that it was not clear what the reference to 'sale charges' meant. The next police witness violated the ruling during his direct testimony, when he was asked what happened after petitioner opened the door. He gave this response: 'The defendant opened the door and he was placed under arrest for sale of narcotics or controlled substances by members of the Sheriff's Department'. Again the jury was excused. Defense counsel's first thought was to move for a mistrial, but he then asked the court to reserve decision on the motion overnight so that he could consult with his client. When the prosecutor admitted that he had neglected to instruct his witness not to disclose the reason for the arrest, defense counsel moved for dismissal of the indictment with prejudice. The court reserved decision on both the dismissal motion and the mistrial motion.

The following morning, defense counsel stated that his client had chosen not to seek a mistrial because he could not afford a retrial and also because the prosecution was presenting a weak and ill-prepared case that seemed to be making a poor impression on the jury. The court nevertheless ordered a mistrial, over the exception of both parties, stating that because of the 'misbehavior' of the prosecutor any conviction would 'no doubt be reversed on appeal'. The motion to dismiss the indictment was denied, although the court termed the prosecutor's conduct 'a grave violation'. The court also ruled that because the mistrial was due to the prosecutor's fault, defendant's expenses on any retrial must be paid from public funds. Some three months after the mistrial was declared, the People moved the case for retrial and the instant petition followed.

Despite decisions which stress the exceedingly limited availability of prohibition relief in criminal matters (Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 369 N.Y.S.2d 75, 330 N.E.2d 45; Matter of State v. King, 36 N.Y.2d 59, 364 N.Y.S.2d 879, 324 N.E.2d 351), prohibition retains its traditional function as a means of raising the question of double jeopardy (Matter of Kraemer v. County Court, 6 N.Y.2d 363, 365, 189 N.Y.S.2d 878, 879, 160 N.E.2d 633, 634; Matter of State v. King, supra, 36 N.Y.2d at p. 64, 364 N.Y.S.2d at p. 883, 324 N.E.2d at p. 354). Since respondents rightly concede that jeopardy had attached at the first trial before it was aborted (People v. Scott, 40 A.D.2d 933, 934, 337 N.Y.S.2d 640, 642), we proceed directly to the question whether the court erred in declaring a mistrial. If so, then this case clearly qualifies for prohibition relief to bar re-prosecution (see, Matter of Ferlito v. Judges of County Court, 31 N.Y.2d 416, 340 N.Y.S.2d 635, 292 N.E.2d 779, affg. 39 A.D.2d 17, 331 N.Y.S.2d 229; Matter of Art v. City Court, 35 A.D.2d 1062, 316 N.Y.S.2d 492; Matter of Snee v. County Court, 31 A.D.2d 303, 297 N.Y.S.2d 414; cf., Matter of Nolan v. Court of General Sessions, 11 N.Y.2d 114, 227 N.Y.S.2d 1, 181 N.E.2d 751).

The double jeopardy prohibition aims to protect the defendant's 'basic human right not to be harassed, or perhaps even impoverished, by successive prosecutions for the same offense' (Matter of Ferlito v. Judges of City Court, 39 A.D.2d at p. 21, 331 N.Y.S.2d at p. 233, Supra). When a court declares a mistrial over the defendant's objection, the reason must therefore be 'a necessitous one, actual and substantial' (Matter of Nolan v. Court of General Sessions, supra, 11 N.Y.2d at p. 118, 227 N.Y.S.2d at p. 4, 181 N.E.2d at p. 753); otherwise the double jeopardy prohibition bars retrial. It has long been settled that the court's power to declare a mistrial Sua sponte 'ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes', and only when the court determines in the exercise of its sound discretion that 'there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated' (United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165; see, Illinois v. Somerville, 410 U.S. 458, 462--463, 93 S.Ct. 1066, 35 L.Ed.2d 425; Wade v. Hunter, 336 U.S. 684, 689--690, 69 S.Ct. 834, 93 L.Ed. 974).

Because each case turns on its particular facts, it is not possible to compile an exhaustive list of the circumstances that will constitute 'manifest necessity'. Nevertheless, there are some situations in which it is well settled that a second trial does not violate the double jeopardy prohibition, such as when the first jury is unable to agree on a verdict (United States v. Perez, supra, at p. 579), or when the first trial is interrupted by the illness of the judge (People ex rel. Brinkman v. Barr, 248 N.Y. 126, 161 N.E. 444), essential court personnel (People ex rel. Epting v. DeVoe, 309 N.Y. 818, 130 N.E.2d 616), or the complaining witness (People v. Kelly, 9 N.Y.2d 697, 212 N.Y.S.2d 755, 173 N.E.2d 679). On the other hand, retrial was barred in a case where the judge in a nonjury trial declared a mistrial Sua sponte over vigorous defense objection because of the remote and theoretical possibility that factors including the acquaintance of a relative of the judge with a relative of the defendant might color his view of the case. Where the judge did not claim that those factors actually biased or prejudiced him, there was no 'manifest necessity' for the mistrial (Matter of Ferlito, supra). Similarly, in Matter of Nolan v. Court of General Sessions, 11 N.Y.2d 114, 227 N.Y.S.2d 1, 181 N.E.2d 751, Supra, the court's doubts about the legality of the mode of trial to which the parties had stipulated were held insufficient to justify an order vacating the stipulation after an 8-month delay and directing a retrial. In Matter of Snee v. County Court, 31 A.D.2d 303, 297 N.Y.S.2d 414, Supra, we found that the asking of an arguably improper question by defense counsel did not give rise to 'extreme or absolute necessity' (id., p. 307, 297 N.Y.S.2d p. 419) for the court's Sua sponte declaration of mistrial, when any prejudice from the question could have been averted by a jury instruction. In Matter of Art v. City Court, 35 A.D.2d 1062, 316 N.Y.S.2d 492, Supra, we again had a fact situation which required us to hold that a court's improper Sua sponte mistrial declaration barred retrial. There two defendants were tried together upon cross complaints that each had assaulted the other, and a mistrial was declared after the proofs were closed, for the reason that it was error to permit the cases to be tried together. That reason, we concluded was not 'necessitous * * *, actual and substantial'.

The instant...