Mortillaro v. Posner
Decision Date | 27 February 1989 |
Citation | 538 N.Y.S.2d 311,147 A.D.2d 701 |
Parties | In the Matter of Silvestro MORTILLARO, Petitioner, v. Herbert POSNER, etc., et al., Respondents. |
Court | New York Supreme Court — Appellate Division |
Schwartz and DiBlasi, Forest Hills (Marvyn M. Kornberg, of counsel), for petitioner.
Robert Abrams, Atty. Gen., New York City (Debra Marcus, of counsel), for respondent Herbert Posner.
John J. Santucci, Dist. Atty., Kew Gardens (Robert I. Caloras, of counsel), pro se.
Before MOLLEN, P.J., and MANGANO, BRACKEN, RUBIN and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
Proceeding pursuant to CPLR article 78 to prohibit the respondents from further prosecuting the petitioner under Queens County Indictment No. 10228/88 on the ground of double jeopardy.
ADJUDGED that the petition is granted, without costs or disbursements, and the indictment is dismissed.
Following an adverse ruling as to the propriety of a peremptory challenge exercised by the prosecutor (see, generally, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69), after which the trial court seated the challenged juror, had the jury sworn and issued its preliminary instructions, the prosecutor wilfully refused to deliver an opening statement, asserting that he could not be compelled to proceed before a jury which included a juror "unacceptable" to him, and advising the court that if it were inclined "to declare a mistrial and call for a new panel [, he] would be more than happy" to proceed. The court, rather than addressing the petitioner's motion for dismissal of the accusatory instrument because of the prosecutor's failure to satisfy the mandatory dictates of CPL 260.30(3), thereupon declared a mistrial, without the petitioner's consent, and in the absence of a "manifest necessity" therefor (see, CPL 280.10[3]; United States v. Perez, 22 U.S. (9 Wheat) 579, 580, 6 L.Ed. 165; People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134).
The trial court's failure to dismiss the indictment upon the petitioner's motion and in the face of the prosecutor's deliberate refusal to deliver an opening statement constituted error. As the Court of Appeals declared in People v. Kurtz, 51 N.Y.2d 380, 385-386, 434 N.Y.S.2d 200, 414 N.E.2d 699, cert. denied 451 U.S. 911, 101 S.Ct. 1983, 68 L.Ed.2d 301:
(emphasis supplied).
Unlike the situation in Kurtz, however, where, as here, the prosecutor contumaciously refused to deliver an opening statement to the jury in contravention of both the court's direction and his statutory obligation (CPL 260.30[3] ), the conclusion is inescapable that his bad faith conduct, designed to thwart the court's attempt to safeguard a right of the...
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...required (CPL 260.30[3] [former Code Crim.Pro. § 388(1) ]; People v. Brown, 158 A.D.2d 461, 550 N.Y.S.2d 913; Matter of Mortillaro v. Posner, 147 A.D.2d 701, 538 N.Y.S.2d 311), and non-waivable (People v. Klein, 7 N.Y.2d 264, 267, 196 N.Y.S.2d 964, 164 N.E.2d 845). Nevertheless, there are c......
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