Guido v. Berkman
| Decision Date | 06 May 1986 |
| Citation | 501 N.Y.S.2d 827,116 A.D.2d 439 |
| Parties | In the Matter of the Application of Nicholas GUIDO and Dominick LaTorre, Petitioners, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules, v. Hon. Carol BERKMAN, Justice of the Supreme Court, New York County; Sterling Johnson, Jr., Special Assistant District Attorney, New York County; and Justices of the Supreme Court, New York County, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Gino Josh Singer, of counsel (Joseph R. Benfante, P.C., New York City, attorney) for petitioners.
James G. Warwick, New York City, of counsel and for respondent Sterling Johnson, Jr.
Before KUPFERMAN, J.P., and SANDLER, SULLIVAN, ROSENBERGER and ELLERIN, JJ.
Petitioners Nicholas Guido and Dominick LaTorre commenced this CPLR article 78 proceeding, in the nature of prohibition, seeking to bar their retrial upon New York County Supreme Court Indictment Number 2376/84, and to dismiss the indictment. They primarily contend that retrial would violate their right under the Fifth Amendment not to be placed twice in jeopardy for the same offense. On this sparse record we are unable to discern justification for the Trial Justice's sua sponte declaration of a mistrial. We are persuaded that no inference of acquiescence in the mistrial may fairly be drawn under these circumstances, and therefore grant the petition.
Petitioners Nicholas Guido and Dominick LaTorre were indicted, charged with criminal possession of a controlled substance in the second degree and related offenses (narcotics indictment). Additionally, Guido and LaTorre were separately indicted, charged with criminal possession of a weapon in the third degree, offering a false instrument for filing in the second degree, and criminal impersonation in the second degree (gun indictments). These charges stemmed from the petitioners' arrest while registered guests at the Vista International Hotel in lower Manhattan. The offenses set forth in the narcotics indictment were based upon an alleged discovery of cocaine and narcotics-related paraphernalia in petitioners' hotel room by police officers. Those set forth in the gun indictments were based upon the allegation that when they were arrested, Guido and LaTorre had handguns, and display copies of peace officer registration forms which had been filed with the Division of Criminal Justice, reflecting their membership in an allegedly fraudulent organization, the Sullivan County Society for the Prevention of Cruelty to Children. The three indictments were consolidated for trial, which began before Justice James J. Leff on June 26, 1985.
The jury heard the presentation of evidence for five days. On July 2, 1985, a Tuesday, the jury heard summations and the court gave instructions on the law. At approximately 4:00 p.m. that afternoon, the jury retired to deliberate. After a total of approximately five and one-half hours of deliberation, excluding one hour of reread testimony and a dinner break at 11:23 p.m., the jury sent a note to the court which read as follows: "We have reached a verdict on 8 counts and are hung up on 4. It's unlikely that we will be able to reach a verdict on these.
In his affirmation in support of the petition Guido's trial counsel states:
Upon information and belief, the trial prosecutor ... remained in the courtroom, as had Justice Leff ... Your affirmant, co-counsel, the petitioners and their respective families returned to the courtroom at approximately 11:25 p.m., after having been informed that some form of verdict had been reached.... The trial court did not say anything ... other than, in words or substance, that the trial court intended to bring out the jury and see what it had--prior to the time when the jury entered the courtroom.
The District Attorney disputes this. He affirms that He also indicates that the Trial Justice had advised the People that he intended to accept the verdict and discharge the jury.
The Trial Justice neither made an inquiry of the foreperson to determine whether further deliberations would be availing nor read the note aloud for the record. The transcript of the proceedings reflects only that the jury announced its partial verdict of acquittal on each count contained in the narcotics indictment and on the count of offering a false instrument for filing in the first degree contained in the gun indictments. Following receipt of the partial verdict, the Trial Justice directed the court officers to "clear the courtroom." The District Attorney, counsel for the defendants, the defendants, and relatives of the latter stepped outside of the courtroom and waited. The court addressed the jurors, thanking them for, and discharging them from, their service. When the parties and their attorneys re-entered the courtroom the jurors were no longer present and the following transpired:
In their respective affirmations, the District Attorney denies, and both trial counsel affirm, that Guido's trial counsel, Mr. Benfante, contended off the record, inter alia, that retrial was prohibited, based upon double jeopardy. The case was reassigned to the Respondent Justice in Part 60 and adjourned. The petitioners' respective motions to dismiss the indictments, made before the Respondent Justice, were reportedly denied, although no written decision, order, or other writing by her is presented on this record.
The Respondent Justice granted several adjournments, then advised Guido, on numerous calendar dates, that the case could not further await the conclusion of Mr. Benfante's engagement in a lengthy trial in the United States District Court for the Southern District of New York involving alleged organized crime defendants. On December 5, 1985, Guido answered the calendar call in Part 60 and requested yet another adjournment. Respondent ordered a final trial date and doubled his bail. Guido posted the bail later that afternoon. This petition for a writ of prohibition ensued.
A hopelessly deadlocked jury presents the "classic case for a proper mistrial", and such a determination by a trial judge is accorded "great deference." Arizona v. Washington, 434 U.S. 497, 510, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978). Yet, a reviewing court must ascertain whether the trial judge has declared a mistrial in the "sound exercise" of discretion. A cardinal feature of the scrupulous exercise of judicial discretion is temperance based upon the exercise of care for the defendant's "valued right" to have his trial completed by a particular tribunal. Arizona v. Washington, supra, at 514, 98 S.Ct. at 834; Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). As the court explained in United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 558, 27 L.Ed.2d 543 (1971): "[I]n the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate." A corollary of this principle is the principle that a trial judge must confirm the genuineness of a jury's reported deadlock in open cour...
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People v. Johnson
... ... nor a meaningful opportunity to object, consent to the declaration of a mistrial will not be implied from the defendant's silence (Matter of Guido v. Berkman, 116 A.D.2d 439, 444, 501 N.Y.S.2d 827; see, People v. Ferguson, 67 N.Y.2d 383, 389, 502 N.Y.S.2d 972, 494 N.E.2d 77). Since the trial ... ...