Girard v. Rossi
| Decision Date | 02 November 1972 |
| Citation | 337 N.Y.S.2d 34,40 A.D.2d 13 |
| Parties | Matter of Daniel W. GIRARD, Appellant, v. Hon. Frederick A. ROSSI, a Peace Justice of the Town of Irondequoit, and Hon. Jack B. Lazarus, District Attorney of Monroe County, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Martin S. Handelman, Rochester, for appellant (V. Lee Ringler, Rochester, of counsel).
Jack B. Lazarus, Rochester, for respondents (Edward J. Spires, Rochester, of counsel).
Before GOLDMAN, P.J., and DEL VECCHIO, MARSH, CARDAMONE and HENRY, JJ.
On Monday, February 28, 1972 at 9:50 p.m. upon the completion of testimony from two of the People's witnesses, the respondent Town Justice declared a recess in the case of the People against Daniel W. Girard, the petitioner herein, due to the indisposition of the court stenographer. During a conference in chambers with the Assistant District Attorney and defendant's counsel a discussion was had with respect to a continuance. Defendant's counsel said he was available any day or evening until the following Monday night, March 6th, but that he would be away for part of that week and the next. The prosecutor asserted that he had a prior commitment on the following night (Tuesday) and the respondent Town Justice stated that the courtroom (there being only one such room in the Irondequoit Town Hall) was to be used Thursday night by the Town Board. Following this conference, the respondent Town Justice returned to the courtroom and on his own motion declared a mistrial due to the extenuating circumstances of the stenographer's illness. He set a new trial date three weeks ahead on Monday, March 20, 1972 at 8:00 p.m. Defendant objected to this course of action.
The petitioner, charged under six informations with offenses or misdemeanors arising out of an altercation between the petitioner and Irondequoit police officers on October 24, 1971, immediately instituted an Article 78 proceeding in the nature of prohibition against respondents, Town Justice and District Attorney of Monroe County, to prohibit his prosecution on March 20, 1972 on the grounds of double jeopardy. Section 6 of Article I of the Constitution of the State of New York provides: 'No person shall be subject to be twice put in jeopardy for the same offense'. The Fifth Amendment to the United States Constitution contains the same provision. He appeals from the dismissal of his Article 78 petition by Special Term.
Concededly any court presiding over a criminal trial must exercise its own judgment when declaring a mistrial. This is a matter within judicial discretion (People ex rel. Epting v. DeVoe, 284 App.Div. 1092, 136 N.Y.S.2d 650, affd. 309 N.Y. 818, 130 N.E.2d 616) but it should be exercised only where taking all the circumstances into consideration there is a 'manifest necessity' for so acting , or where there is an 'extreme or absolute necessity, as by illness or death' (Matter of Nolan v. Court of General Sessions, 11 N.Y.2d 114, 119, 227 N.Y.S.2d 1, 4, 181 N.E.2d 751, 753). The reasons for such guides to the exercise of discretion are plain. When the trial judge aborts the trial without the defendant's consent the defendant has been deprived of '(his) valued right to have his trial completed by a particular tribunal' (Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974) and the trial court should consider 'the importance to the defendant of...
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... ... Matter of Ferlito v. Judges of The County Court of Suffolk County, supra). In the Matter of Girard v. Rossi, 40 A.D.2d 13, 14--15, ... 337 N.Y.S.2d 34, 36 (1972), the Appellate Division, 4th Department said, Per curiam: ... 'When the trial judge ... ...
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...when prosecutor absent due to short-term illness and substitute prosecutor could have been assigned to case); Girard v. Rossi, 40 A.D.2d 13, 337 N.Y.S.2d 34, 36–37 (1972) (absence of stenographer due to illness not manifest necessity for mistrial). ¶ 7 In ruling on the motion to dismiss in ......
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