Gershon v. Sardonia
| Decision Date | 28 January 1966 |
| Parties | In the Matter of Neil I. GERSHON, Petitioner, v. Milton SARDONIA, Individually and as Justice of the Court of Special Sessions of the Town of Bethel, Sullivan County, New York, and Robert C. Williams, District Attorney of Sullivan County, Respondents. (Calendar #58) |
| Court | New York Supreme Court |
Jacob Aks, Monticello, for petitioner.
Carl J. Silverstein, Asst. Dist. Atty. of Sullivan County, Monticello, for respondents.
This is a proceeding pursuant to Article 78 of the CPLR seeking an order restraining the respondents from any proceedings in a manner as to the prosecution of the defendant upon an information charging him with assault. The main thrust of the petitioner's argument is that the retrial of the information and charge would be in violation of his constitutional rights under Article I, Section 6, of the New York State Constitution and the Constitution of the United States, Amendment 5, which states basically that no person shall be subject to be twice put in jeopardy for the same offense.
The petitioner was arrested on February 25, 1963, in a hotel in Sullivan County and taken before a Justice of the Peace in Monticello, New York. He was charged with assault and pleaded guilty to a reduced charge of disorderly conduct. This disposition was appealed to Sullivan County Court and remitted back to the Justice Court for a trial of the petitioner on the original charge of assault.
A jury was impounded and sworn on July 12, 1965, and the trial of the petitioner was commenced before a Justice of the Peace in Sullivan County, the situs of the alleged charge. One witness was sworn and testified for the people on both direct and cross-examination and other witnesses testified on direct. The latter witness was the Justice of the Peace who accepted the plea of guilty in the first proceeding. His testimony was apparently offered for the purpose of credibility of the defendant's contemplated testimony or proof to be offered by the defendant petitioner herein. The Justice testified as to the facts and events surrounding the plea of guilty to the same disorderly conduct charge. The defendant's counsel objected to this testimony and requested the withdrawal of a juror. The court overruled the objection and impliedly denied the motion for a mistrial. The Assistant District Attorney then asked the court to instruct the jury that it should disregard the testimony as to the plea of guilty by the defendant. In other words he attempted to expunge the testimony of the witness from the minds of the jury. The court granted his request as follows: 'The jury is so instructed.' Again the defendant's counsel made a second motion for a mistrial and the court denied the motion. It was at this juncture the Assistant District Attorney stated he would consent to a mistrial. The defendant's attorney stated he withdrew any motion for a mistrial. The attorneys and court retired to chambers, no stipulation was reached as to the motion for a mistrial. Upon return the Assistant District Attorney made a statement with the jury present as to waiver by defendant of any appeal on grounds of prejudice quite unlike the Zendano Case. (People v. Zendano, 31 Misc.2d 145, 136 N.Y.S.2d 106.) The statement within itself was highly prejudicial in the opinion of this court, but counsel for defendant consented to it conditionally. 'I consent to that, but I want it clearly understood that that conviction was reversed on appeal.' The Assistant District Attorney then made other remarks and the defendant's counsel refused to concede the remarks as part of the stipulation in respect to instructions of the jury.
Ordinarily, based upon the record, the court was well within proper exercise of discretion to grant a mistrial. Further, the witness was asked no further questions, nor did he testify after the motion of defendant was made. It would seem then, that no prejudice could befall the defendant as the Assistant District Attorney finally made the same...
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Jones v. Com.
...made and fortunately denied." Braxton v. United States, 395 A.2d 759, 769 (D.C.Ct.App.1978). See Gershon v. Sardonia, 50 Misc.2d 423, 425, 270 N.Y.S.2d 729, 731 (N.Y.Sup.Ct.1966) ("(d)uring the course of a trial the picture constantly changes and a motion made and denied may eventually bene......
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People v. Bowman
...Court of Oklahoma County (Okl.Cr.1969), 455 P.2d 724; People v. McGrath (1911), 202 N.Y. 445, 96 N.E. 92; Matter of Gershon v. Sardonia (1966), 50 Misc.2d 423, 270 N.Y.S.2d 729. Some of these cases, however are distinguishable by the added consideration that the objected to the mistrial or ......
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Whitehead v. State
...defendant consented; the decisive issue was whether severance, rather than a mistrial should have been ordered.In Gershon v. Sardonia (1966), 50 Misc.2d 423, 270 N.Y.S.2d 729, defense counsel, following the denial of his second motion for mistrial, urged that the trial be completed. The cou......
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