Gorman v. Rice

Decision Date16 August 2010
Citation29 Misc.3d 610,909 N.Y.S.2d 872
PartiesIn the Matter of the Application of Catherine A. GORMAN, Petitioner, For Judgment under Article 78 of the Civil Practice Law and Rules, v. Hon. Kathleen M. RICE and the Judges of the District Court, County of Nassau, Respondents.
CourtNew York Supreme Court

Harry Kutner for petitioner.

Kathleen M. Rice, District Attorney (Christian Kubic of counsel), respondent pro se.

F. DANA WINSLOW, J.

Upon all the papers submitted and oral argument on June 18, 2010, the petition by CATHERINE A. GORMAN for a judgment, pursuant to Article 78 of the Civil Practice Law and Rules, dismissing the pending case under Docket No. 2006NA016493 and directing the respondents to be prohibited from further prosecuting petitioner (defendant), is determined as follows.

FACTS

The claims in this petition arise out of a criminal trial in the District Court of Nassau County after the defendant was arrested for multiple charges in violation of the Vehicle and Traffic Law. The initial trial began in June 2008 and a mistrial was declared on defendant's motion for prejudicial conduct of the prosecutor. During the second trial, the District Court declared a mistrial sua sponte. The record reveals that the declaration was made in response to defense counsel's statement that he would file a complaint against the judge, Hon. Robert H. Spergel, for alleged "pro-prosecutorial" rulings.

After the announcement of a mistrial and a short recess thereafter, Judge Spergel reconvened with both counsel and the parties and asked defense counsel whether he consented to the mistrial. In response to defense counsel's answer denying any consent, Judge Spergel asked again whether the defendant wanted him to proceed with the trial. The defendant reluctantly consented to the mistrial which was declared again and Judge Spergel recused himself immediately thereafter. The case wasassigned to a successor, Judge David Goodsell. At the commencement of the subsequent trial, defendant moved, inter alia, for dismissal on grounds of double jeopardy. Even though Judge Goodsell acknowledged that he was unsure whether or not he had the authority to hear the case and decide the motion, Judge Goodsell found that defense counsel's threat of filing a formal complaint against Judge Spergel could be seen, in the first instance, as a request for a mistrial to which the defendant consented after the declaration of a mistrial. He also decided the defendant was technically correct in asserting that consent could not be given to a mistrial declared by the court sua sponte. He further stated that the record clearly established manifest necessity and physical impossibility to proceed with the trial in conformity with the law and that the mistrial was declared in order to protect the rights of the defendant to a fair trial. However, this Court notes that Judge Goodsell's gratuitous determination that Judge Spergel was presented with circumstances evidencing manifest necessity and physical impossibility lacks reference tospecific facts or circumstances. After the District Court denied defendant's motion to dismiss, the defendant filed this petition to prohibit the District Court and the People from proceeding any further and requested an order to dismiss the case as being barred by double jeopardy.

ARTICLE 78

The threshold issue is whether the District Court's denial of the motion to dismiss can be challenged in an Article 78 proceeding. In general, a determination in a civil or criminal matter may not be challenged in an Article 78 proceeding. CPLR § 7801(2). However, an exception to CPLR § 7801(2) allows a petition to be brought to the Supreme Court for prohibition to restrain a judicial officer from acting without or in excess of a court's jurisdiction. CPLR § 7803(2); See Town of Huntington v. New York State Div. of Human Rights, 82 N.Y.2d 783, 604 N.Y.S.2d 541, 624 N.E.2d 678. The term "judicial officer" includes judges and prosecutors. Schumer v. Holtzman, 60 N.Y.2d 46, 467 N.Y.S.2d 182, 454 N.E.2d 522; Dondi v. Jones, 40 N.Y.2d 8, 386 N.Y.S.2d 4, 351 N.E.2d 650. This remedy of prohibition is limited to jurisdictional error and excludes any substantive or procedural issues. See Rush v. Mordue, 68 N.Y.2d 348, 509 N.Y.S.2d 493, 502 N.E.2d 170; Holtzman v. Goldman, 71 N.Y.2d 564, 528 N.Y.S.2d 21, 523 N.E.2d 297. The initial burden of proof is on the petitioner to show a clear legal right to the relief. See Molea v. Marasco, 64 N.Y.2d 718, 485 N.Y.S.2d 738, 475 N.E.2d 109. To determine the availability ofprohibition by an Article 78 proceeding, the court must weigh three factors: "the gravity of the harm caused by the act sought to be performed by the official; available recourse to ordinary proceedings at law or in equity; and whether prohibition would furnish 'a more complete and efficacious remedy even though other methods of redress are technically available.' " Rush v. Mordue, 68 N.Y.2d 348, 509 N.Y.S.2d 493, 502 N.E.2d 170. Considering those factors, the courts generally recognize prohibition as a remedy applicable to a criminal prosecution in potential violation of double jeopardy. See Kraemer v. County Court of Suffolk County, 6 N.Y.2d 363, 189 N.Y.S.2d 878, 160 N.E.2d 633; Enright v. Siedlecki, 59 N.Y.2d 195, 464 N.Y.S.2d 418, 451 N.E.2d 176.

Even though the petitioner may appeal the District Court's judgment for appellate review after completion of the trial, this Court recognizes that prohibition under CPLR § 7803(2) is a proper and available remedy at this stage of the proceeding. In that context, the Court also recognizes the gravity of any further criminal prosecution and potential prejudice to the petitioner during and after the trial. The Court further determines that a proceeding pursuant to CPLR § 7803(2) is more complete and efficacious remedy than the one by appellate review after completion of a trial with an adverse determination against the petitioner.

DOUBLE JEOPARDY

The Court next considers the issue of double jeopardy. Under the Fifth Amendment of the U.S. Constitution, N.Y. Constitution Article I and N.Y. CPL § 40.20, the double jeopardy clause protects the defendant in a criminal proceeding from being put in jeopardy twice for the same offense. Procedurally, jeopardy attaches when the jury has been impaneled and sworn, or in the case of a trial by the court, when a witness is sworn. N.Y. CPL § 40.30; Colcloughley v. Johnson, 115 A.D.2d 58, 499 N.Y.S.2d 686. Once a mistrial is declared without defendant's consent, retrial is barred by double jeopardy pursuant to the U.S. Constitution, unlessone of the enumerated conditions is present. See U.S. v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165; People v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 394 N.E.2d 1134.

MANIFEST NECESSITY

Jeopardy attaches to the declaration of a mistrial unless there is manifest necessity for the mistrial. See U.S. v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165; People v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 394 N.E.2d 1134.To establish manifest necessity, the court must have considered all proper alternatives on the record before declaring a mistrial. See People v. McElveen, 234 A.D.2d 228, 651 N.Y.S.2d 977; Colcloughley v. Johnson, 115 A.D.2d 58, 499 N.Y.S.2d 686; Matter of Zeigler v. Morgenthau, 99 A.D.2d 989, 472 N.Y.S.2d 1022; Matter of Dickson v. Morgenthau, 102 A.D.2d 168, 476 N.Y.S.2d 841; Matter of Respeto v. McNab, 90 A.D.2d 308, 456 N.Y.S.2d 996. The foregoing constitutes the minimum requirement established under the U.S. Constitution.

In this case, the initial burden of proof for the petitioner is to show that the declaration of a mistrial was by the court sua sponte and without petitioner's consent. Once this initial requirement is satisfied, the burden shifts to the respondent prosecutor to overcome the defense of double jeopardy by showing that the judge articulated a manifest necessity requiring him to declare a mistrial. See Colcloughley v. Johnson, 115 A.D.2d 58, 499 N.Y.S.2d 686; People v. Ramchair, 308 A.D.2d 601, 602, 764 N.Y.S.2d 725, aff'd 8 N.Y.3d 313, 832 N.Y.S.2d 889, 864 N.E.2d 1288 (2007). This Court finds that petitioner has met her burden by providing the District Court's trial record, showing that a declaration of a mistrial by the court sua sponte occurred without the requisite consent of the petitioner.

The relevant statements in the record between the court and defense counsel are as follows.

[Defense Counsel] Mr. Kutner: you are depriving the defense of critical documents, and I think it's highly improper, at this point verging on the point of a complaint being needed.
Court: Let's stop. Is it your intent to file a complaint against me? Yes or no? If the answer is yes, then I'll recuse myself and I'll declare a mistrial. Is that what you want? Yes or no? Tread carefully.
Mr. Kutner: Judge, one moment. Let me discuss this with my client.
Court: Both counsel, I'm declaring a mistrial based on the threats of counsel to file a complaint against me.
Mr. Kutner: Judge, I didn't say
Court: There is a mistrial. I'll be back in five minutes.
(brief recess)
Court: Before we broke, I declared a mistrial. And I'm assuming, counsel, that you agree that I cannot-should not-based on your comments thatI should not be able to preside over this trial?
Mr. Kutner: Yes, sir.
Court: Then on consent, I'm going to declare a mistrial.
Mr. Kutner: Judge, I'm not consenting to a mistrial.
Court: I'm going to take five minutes, and you can discuss with your client what you want to do. If you and your client decide you want me to preside over this trial, then I'll reconsider it.
Mr. Kutner:. Thank you for the opportunity.
(brief recess)
Mr. Kutner: ..., after consulting with Mrs. Gorman..., regrettably we're going to go with the mistrial.
Court: Very good. A mistrial is declared at the request of the defendant.
Court: I'm going to have this case put back on for tomorrow in my part for purposes of control to see if there's another judge available to
...

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2 cases
  • Gorman v. Rice
    • United States
    • New York Court of Appeals Court of Appeals
    • 18 Noviembre 2014
  • Gorman v. Rice
    • United States
    • New York Court of Appeals Court of Appeals
    • 18 Noviembre 2014
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    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2016 Contents
    • 18 Agosto 2016
    ...3:73 Matter of Gonzalez v. Village of Port Chester , 109 AD3d 614, 970 NYS2d 600 (2d Dept. 2013), §42:212 Matter of Gorman v. Rice , 29 Misc3d 610, 909 NYS2d 872 (Sup Ct Nassau Co 2010), §42:231 Matter of Grand Jury Investigation in New York County (New York Health and Hospitals Corporation......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2014 Contents
    • 18 Agosto 2014
    ...3:73 Matter of Gonzalez v. Village of Port Chester , 109 AD3d 614, 970 NYS2d 600 (2d Dept. 2013), §42:212 Matter of Gorman v. Rice , 29 Misc3d 610, 909 NYS2d 872 (Sup Ct Nassau Co 2010), §42:231 Matter of Grand Jury Investigation in New York County (New York Health and Hospitals Corporation......
  • Special Proceedings
    • United States
    • James Publishing Practical Law Books New York Civil Practice Before Trial
    • 2 Mayo 2018
    ...in first verdict sheet instead of upon duly reported and recorded verdict entered on second verdict sheet); Matter of Gorman v. Rice , 29 Misc3d 610, 909 NYS2d 872 (Sup Ct Nassau Co 2010) (prevention of prosecution in violation of rule against double jeopardy); Matter of Soares v. Herrick ,......
  • Special Proceedings
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2016 Contents
    • 18 Agosto 2016
    ...in first verdict sheet instead of upon duly reported and recorded verdict entered on second verdict sheet); Matter of Gorman v. Rice , 29 Misc3d 610, 909 NYS2d 872 (Sup Ct Nassau Co 2010) (prevention of prosecution in violation of rule against double jeopardy); Matter of Soares v. Herrick ,......
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