Hall v. Potoker

• Decision Date: 25 March 1980
• Citation: 49 N.Y.2d 501,403 N.E.2d 1210,427 N.Y.S.2d 211
• Parties: , 403 N.E.2d 1210 Raymond HALL, Appellant, v. Michael POTOKER et al., as Justice of the Supreme Court of the State of New York, Kings County, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 211

427 N.Y.S.2d 211

49 N.Y.2d 501, 403 N.E.2d 1210

Raymond HALL, Appellant, v. Michael POTOKER et al., as Justice of the Supreme Court of the State of New York, Kings County, et al., Respondents.

Court of Appeals of New York.

March 25, 1980.

Steven G. Asin, Leon B. Polsky, Ivar Goldart, Barbara Salken and Pamela R. Winnick, New York City, for appellant

Eugene Gold, Dist. Atty. (Joel M. Goldberg, Asst. Dist. Atty., of counsel), respondent pro se.

Robert Abrams, Atty. Gen. (Patricia C. Armstrong and Shirley Adelson Siegel, Asst. Attys. Gen., of counsel), for Michael Potoker and another, respondents.

OPINION OF THE COURT

COOKE, Chief Judge.

The issue here is whether double jeopardy bars retrial of a criminal defendant where, due to the unexpected hospitalization of a prosecution witness, a mistrial had been declared over defense objection. A unanimous Appellate Division held that the retrial was permissible. For reasons which follow, there should be an affirmance.

Petitioner, Raymond Hall, was indicted by a Kings County Grand Jury for criminal sale of a controlled substance to an undercover police officer. Trial commenced on April 23, 1979 in Kings County Supreme Court. Five days earlier, the prosecutor had been advised by the officer that he would be available to testify on Wednesday, April 25, and the two agreed to meet on Tuesday, April 24, to discuss the case. At the April 24 court session, a jury was selected and opening statements were made. Upon returning to his office that evening, the prosecutor learned, for the first time, that the officer had suffered a cut finger while effecting an arrest during the weekend. The prosecutor then phoned the witness, who related that his hand had become severely infected and he was to visit his physician on Wednesday, the next day.

The court and defense counsel were alerted to the problem by the prosecutor on Wednesday morning. Expressing the hope that the officer would be available to testify on Thursday, the trial assistant began to present his case. During the latter part of Wednesday afternoon, however, the prosecution was informed that the infection was not responding to treatment, resulting in hospitalization of the undercover officer. At the opening of court on Thursday, the prosecutor announced that, according to his information, the witness had been hospitalized for a minimum of one week and, if complications developed, an additional two-week hospital stay might be required. Therefore, the prosecutor applied for a continuance. Defense counsel immediately requested and was granted a hearing to determine the extent of the illness.

At the hearing, the treating physician testified that since the infection had not responded to oral antibiotics, the witness had been hospitalized for intravenous administration of antibiotics. The doctor stated that it was too early to gauge the effectiveness of the treatment, but even if it was successful the officer would remain in the hospital until at least Tuesday, May 1. The doctor testified that it would be detrimental to the witness' health to require attendance in court in his present condition, and that a recuperation period would be required following hospitalization. When pressed for greater specificity as to availability, the doctor indicated that even if treatment went well the officer would not be able to testify prior to the week of May 7, and stressed the impossibility of exact prediction.

On the morning of Friday, April 27, the court denied a continuance and directed the prosecutor to proceed. Then, on Monday morning, the trial assistant informed the court that he had spoken to the doctor, and that the officer was to be discharged from the hospital on May 2. The doctor had stated that the witness would not be available to testify until May 10 or May 11 at the earliest, but cautioned that this estimate was dependent upon the officer's response to therapy. Acting on this information, the prosecutor applied for a continuance until May 14, which the court initially granted. Later, the decision was rescinded to allow defense counsel time to research and consider the issue.

Defense counsel appeared on Tuesday and opposed continuance, arguing that because of its effect on the jury, a lengthy adjournment would impair defendant's right to a fair trial. Counsel also urged that the unverified and unsworn report from the prosecutor as to the witness' medical condition was insufficient to justify a delay and requested a new medical hearing. In view of defendant's position, the court denied the motion for a continuance, but, over defense objections, declared a mistrial, sua sponte. Defendant then commenced this article 78 proceeding, in the nature of prohibition seeking to restrain his impending retrial. ¹ The Appellate Division unanimously dismissed the petition on the ground that declaration of a mistrial was manifestly necessary and that retrial would therefore not violate double jeopardy.

The double jeopardy clauses of our State and Federal Constitutions have traditionally been read to limit the instances in which a mistrial can be declared without a criminal defendant's consent (e. g., Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717; United States v. Perez, 9 Wheat. (22 U.S.) 579, 580, 6 L.Ed. 165; 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). This is so because, under our constitutional scheme, a defendant possesses a " ' "valued right to have his trial completed by a particular tribunal" ' " (Illinois v. Somerville, 410 U.S. 458, 466, 93 S.Ct. 1066, 1071, 35 L.Ed.2d 425; Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974). Weighed against this right, of course, is "the public's interest in fair trials designed to end in just judgments" (Wade v. Hunter, supra, at p. 689, 69 S.Ct. at p. 837). In accommodating the uneasy tension between these conflicting considerations, courts have settled upon a formula for determining when a mistrial may be declared over defense objections. According to classic formulation, retrial is not barred where there was "a manifest necessity for (a mistrial), or the ends of public justice would otherwise be defeated" (United States v. Perez, supra, at p. 580).

Of necessity, the decision whether to abort a criminal trial must rest, in the first instance, in the sound discretion of the trial court (e. g., People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134, supra; Matter of...