Enright v. Siedlecki

• Decision Date: 09 June 1983
• Citation: 451 N.E.2d 176,59 N.Y.2d 195,464 N.Y.S.2d 418
• Parties: , 451 N.E.2d 176 In the Matter of Dennis L. ENRIGHT, Respondent, v. Andrew F. SIEDLECKI, as Judge of the County Court of Tioga County, et al., Appellants. In the Matter of Arthur W. HUNTZINGER, Respondent, v. Andrew F. SIEDLECKI, as Judge of the County Court of Tioga County, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 418

464 N.Y.S.2d 418

59 N.Y.2d 195, 451 N.E.2d 176

In the Matter of Dennis L. ENRIGHT, Respondent, v. Andrew F. SIEDLECKI, as Judge of the County Court of Tioga

County, et al., Appellants.

In the Matter of Arthur W. HUNTZINGER, Respondent, v. Andrew F. SIEDLECKI, as Judge of the County Court of Tioga

County, et al., Appellants.

Court of Appeals of New York.

June 9, 1983.

Robert J. Simpson, Dist. Atty., for appellants

Robert L. Miller and Gerald A. Keene, Elmira, for Dennis L. Enright, respondent.

Robert L. Miller and Gerald A. Keene, Elmira, for Arthur William Huntzinger, respondent.

OPINION OF THE COURT

MEYER, Judge.

Manifest necessity for the declaration of a mistrial in a criminal case exists when after opening statements referring to a confession have been made, the prosecutor discovers a Miranda warnings statement indicating that defendant had requested counsel and the confession is, after a hearing, suppressed. Manifest necessity likewise exists when an essential defense witness becomes unavailable; the Trial Judge is not limited by defendant's attorney's request for a continuance rather than a mistrial and in passing upon the continuance request may take into account an appeal to sympathy by defense counsel during voir dire even though the Trial Judge denied the prosecution's motion for mistrial made during voir dire. In each case, therefore, the judgment of the Appellate Division, 89 A.D.2d 735, 453 N.Y.S.2d 859; 89 A.D.2d 736, 453 N.Y.S.2d 861, should be reversed and defendant's article 78 petition seeking to prohibit retrial should be dismissed.

I

Petitioner Enright was indicted for robbery in the second degree. Following a lengthy Huntley hearing the suppression court denied his motion to suppress a confession given to the police. At the ensuing trial the confession was referred to in the opening statements of both the prosecutor and defense counsel. The next day, however, the trial prosecutor discovered a Miranda rights warning statement indicating that Enright had requested counsel before his statement was taken. The hearing was then reopened and, at its conclusion the statement was suppressed.

During discussion concerning the necessity for a mistrial, petitioner's counsel agreed with the prosecutor that reference to the confession during opening statements constituted a major problem and expressed doubt that the jury could be "sanitized" with respect to defendant's inculpatory statement, but refused to consent to a mistrial. The prosecutor, stating that he felt "penalized in the sense that I now have to fly a flag with different colors and I don't know that anything the court says can dispel the doubt", moved for a mistrial. The Trial Judge, noting that he had admonished the jury to listen carefully to the opening statements and concluding that "there is no way we can proceed to a trial with this panel at this time and be sure that this defendant has a fair trial" granted the mistrial, stating that he was doing so on the prosecutor's motion and on the court's own motion.

Petitioner then commenced the present proceeding to prohibit the scheduled retrial. ¹ The Appellate Division held any prejudice to the People arising from the unavailability of the confession to be of their own making and no basis for mistrial, and that, no inquiry having been made by the Trial Judge into the jury's ability to render a fair verdict or curative instruction given, the Trial Judge had abused his discretion in granting a mistrial without defendant's consent. The appeal is before us by our leave (57 N.Y.2d 608, 456 N.Y.S.2d 1025, 442 N.E.2d 448).

Petitioner Huntzinger was indicted for sodomy in the second degree based on an alleged 1981 incident with a minor girl. Petitioner, then 72 years old, appeared at trial in a wheelchair, accompanied by a female attendant. In the course of voir dire, defense counsel asked a prospective juror whether he would consider defendant's age and physical limitations, including the fact that he had undergone three major operations, as well as his status as a widower after 44 years of marriage. The prosecutor's objection was sustained but the court denied his request for a mistrial and stated that curative instructions would obviate any undue prejudice.

After the jury was sworn, however, the court declared a mistrial, over defendant's objection, for three reasons. First, the Trial Judge ruled that the People were prejudiced by petitioner's sympathetic appearance in a wheelchair when, in fact, the necessity for its use was not properly proven to the court's satisfaction. Second, the Trial Judge reversed himself on the jury's ability to disregard the improper remarks made during voir dire; he found that "despite my instructions to jury, it's impossible to unring a bell." Finally, the Trial Judge based his decision, in part, on the unavailability of Chief Jackson of the Waverly Police. Defense counsel characterized Jackson as "absolutely crucial" to the defense case because he had signed the felony complaint which asserted that the crime occurred in July or August of 1981, but the indictment alleged that the crime occurred in July or August of 1980. Chief Jackson was unavailable for trial, however, because he was recuperating from extensive surgery. Although defense counsel requested a continuance, the court rejected that alternative after counsel was unable to even estimate the length of the witness' unavailability.

A second trial having been scheduled, petitioner commenced this article 78 proceeding seeking to prohibit retrial. The same panel that decided the Enright proceeding held that the Trial Judge abused his discretion in granting a mistrial. It noted without comment that the granting of a mistrial was based in part on the unavailability of Jackson and ruled that the misconduct of defense counsel, if it be deemed misconduct, was not so egregious as to have irrevocably tainted the impartiality and objectivity of the jury after receipt of appropriate curative instructions. Huntzinger's appeal is also before us by our leave (57 N.Y.2d 608, 456 N.Y.S.2d 1025, 442 N.E.2d 448).

II

The rules governing the effect of declaring a mistrial in a criminal case without the consent or over the objection of the defendant are well settled. When such a mistrial is declared the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution and in section 6 of article I of the New York Constitution precludes retrial for the same offense unless "there is a manifest necessity for or the ends of public justice would otherwise be defeated" (United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165; People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134). This principle is at the root of CPL 280.10, which requires the declaration of a mistrial upon motion of the People when there has been "gross misconduct by the defendant or some person acting on his behalf" (subd. 2) or on motion of either party or on the court's own motion "when it is physically impossible to proceed with the trial in conformity with law" (subd. 3). Under either the constitutional or statutory provisions " 'a defendant's valued right to have his trial completed by a particular tribunal must in some circumstances be subordinated to the public's interest in fair trials designed to end in just judgments' " (United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 554, 27 L.Ed.2d 543, quoting from Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974; accord Hall v. Potoker, 49 N.Y.2d 501, 505, 427 N.Y.S.2d 211, 403 N.E.2d 1210), but the Trial Judge must exercise sound discretion to assure that, taking all relevant circumstances into account, there was manifest necessity for the declaration of a mistrial without defendant's consent (United States v. Jorn, supra, 400 U.S. at p. 487, 91 S.Ct. at 558).

A corollary of the discretion granted Trial Judges is the principle that a reviewing court will be hesitant to interfere with the discretion exercised out of deference to the fact that the Trial Judge "is in the best position to determine whether a mistrial is in fact necessary in a particular case" (People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134, supra; Matter of Napoli v. Supreme Ct. of State of N.Y., 40 A.D.2d 159, 338 N.Y.S.2d 721, affd. on opn. below 33 N.Y.2d 980, 353 N.Y.S.2d 740, 309 N.E.2d 137, cert. den. 417 U.S. 947, 94 S.Ct 3073, 41 L.Ed.2d 668). The Trial Judge's discretion is not without limits, however. The reasons underlying the grant of a mistrial may not be illusory; rather, in order fully to protect the defendant's right to trial by a particular tribunal they must be necessitous, actual and substantial (Matter of Nolan v. Court of Gen. Sessions of County of N.Y., 11 N.Y.2d 114, 119, 227 N.Y.S.2d 1, 181 N.E.2d 751). Thus, if the Judge acts so abruptly as not to permit consideration of the alternatives (United States v. Jorn, 400 U.S. 470, 487, 91 S.Ct. 547, 558, 27 L.Ed.2d 543, supra ) or otherwise acts irrationally or irresponsibly (Arizona v. Washington, 434 U.S. 497, 514, 98 S.Ct. 824, 834, 54 L.Ed.2d 717) or solely for convenience of the court and jury (People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134, supra ) or other similar abuse of discretion (People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794), retrial will be barred.

The Trial Judge's grant of a mistrial will be subjected to strict scrutiny when the basis for doing so is the unavailability of critical prosecution evidence, for the People are not entitled to a mistrial merely to gain " ' "a more favorable opportunity to convict" ' " (Hall v. Potoker, 49 N.Y.2d 501, 506, 427 N.Y.S.2d 211, 403 N.E.2d 1210, supra ). On the other hand, "the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected by * * * improper comment" will be accorded "the highest degree of respect" (...