Davis v. Brown

CourtNew York Court of Appeals
Citation87 N.Y.2d 626,664 N.E.2d 884,641 N.Y.S.2d 819
Parties, 664 N.E.2d 884 In the Matter of Arthur DAVIS, Appellant, v. Richard A. BROWN, as District Attorney of Queens County, et al., Respondents.
Decision Date28 March 1996

Page 819

641 N.Y.S.2d 819
87 N.Y.2d 626, 664 N.E.2d 884
In the Matter of Arthur DAVIS, Appellant,
Richard A. BROWN, as District Attorney of Queens County, et
al., Respondents.
Court of Appeals of New York.
March 28, 1996.

[87 N.Y.2d 627] [664 N.E.2d 885]

Page 820

Mark W. Zeno, Kew Gardens, Robert M. Baum and Lori L. Zeno, Kew Gardens, for appellant.

Richard A. Brown, District Attorney of Queens County (Andrew L. Crabtree and Steven J. Chananie, of counsel), Kew Gardens, for Richard A. Brown, respondent pro se.

Dennis C. Vacco, Attorney General (Arnold D. Fleischer and Barbara G. Billet, of counsel), New York City, for Stanley Katz, respondent.


CIPARICK, Justice.

Petitioner Arthur Davis commenced this CPLR article 78 proceeding in the nature of prohibition to bar, on double jeopardy grounds, his retrial for robbery in the second degree. Petitioner claims that his motion for a mistrial was specifically delimited a request for a mistrial with prejudice and that the court, by granting a mistrial without prejudice, granted the mistrial without his consent. Under the particular facts of this case, we agree and hold that double jeopardy bars petitioner's retrial.


Before petitioner's trial for robbery in the second degree, Supreme Court issued two rulings precluding the People from eliciting testimony that the complaining witness had identified petitioner while watching a Court TV program and from introducing any evidence of prior warrants issued against petitioner. Despite the pretrial rulings, a prosecution witness mentioned that he had taped a show on channel 51. Petitioner moved for a mistrial, arguing that this testimony was prejudicial because the jury would know that channel 51 was the local television channel of Court TV. The Judge reserved decision.

The next day, the arresting officer, in contravention of the pretrial ruling, testified that a prior warrant had been issued against petitioner. Petitioner's counsel again moved for a mistrial and this time stated that "I am going to ask it be granted with prejudice." When petitioner's counsel reminded the Judge of the previous mistrial motion, the Judge asked, "Are you pressing that motion for a mistrial now?", to which counsel responded that she was "pressing it with prejudice." To this end, petitioner's counsel argued that "I think there is evidence that the People intentionally brought in this information before the jury * * * ignoring the Court's order and I am moving for a mistrial with prejudice."

The Judge announced that he was granting a mistrial, but stated that "[a]s to whether or not I will grant it with prejudice I will decide later." Petitioner's counsel immediately requested that the court "decide whether you're going to grant it with prejudice[87 N.Y.2d 629] at this time because, Judge, I may withdraw my motion" and reminded the court that the "motion at this time is a motion for a mistrial with prejudice." The Judge repeated that he was granting the motion, but that he would reserve decision on whether the mistrial would be with or without prejudice. The court adjourned for the day, without discharging the jury, and counsel were instructed to submit legal memoranda addressing whether the grant of the mistrial should be with prejudice.

The first page of petitioner's memorandum, submitted to the court the following morning, contained the unequivocal statement that petitioner's motion was only for a mistrial with prejudice: "[petitioner] only wanted the mistrial order if it also included a finding that the prosecutor's actions had been intentionally designed to provoke a mistrial, and that, therefore, double jeopardy would bar reprosecution."

When petitioner later renewed his motion for a mistrial with prejudice in open court, the Judge stated that he was granting a mistrial, but that it would be granted without prejudice because "there was no intent upon the People to provoke the defendant in moving for a mistrial." Petitioner's counsel objected

Page 821

[664 N.E.2d 886] on the grounds that petitioner only consented to a mistrial with prejudice, that he objected to a mistrial without prejudice, and that he wanted the case to proceed before the already empaneled jury. The court adhered to its ruling, noting that the initial mistrial motion, when originally made, was not limited to a motion for a mistrial with prejudice, and that petitioner's qualification that he only wanted a mistrial with...

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