Napoli v. Supreme Court

• Decision Date: 12 December 1972
• Parties: In the Matter of James NAPOLI, Petitioner, For an Order pursuant to Article 78 of the Civil Practice Law and Rules v. The SUPREME COURT of the State of New York, the several judges thereof, individually, and as Judges of the said Supreme Court, Criminal Term, County of New York and Hon. Frank S. Hogan, District Attorney, New York County, and his representatives, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 721

338 N.Y.S.2d 721

40 A.D.2d 159

In the Matter of James NAPOLI, Petitioner, For an Order

pursuant to Article 78 of the Civil Practice Law and Rules v. The SUPREME COURT of the State of New York, the several

judges thereof, individually, and as Judges of the said

Supreme Court, Criminal Term, County of New York and Hon.

Frank S. Hogan, District Attorney, New York County, and his

representatives, Respondents.

Supreme Court, Appellate Division, First Department.

Dec. 12, 1972.

Gregory J. Perrin, New York City, of counsel (Perrin, Nachman & Stella, New York City, attorneys), for petitioner.

Michael R. Juviler, New York City, of counsel (Herman Kaufman, New York City, with him on the brief; Frank S. Hogan, Dist. Atty.), pro se.

Louis J. Lefkowitz, Atty. Gen. of State of New York, for respondents.

Before STEVENS, P.J., and MURPHY, McNALLY, STEUER and TILZER, JJ.

STEUER, Justice.

Petitioner moves pursuant to article 78 for an order prohibiting respondents from trying him on indictment 6166/1969, or for any offense charged therein, on the ground that any such trial would amount to subjecting petitioner to being twice put in jeopardy for the same offense.

Petitioner appeared for trial on the said indictment on October 31, 1972, in Part 42 of the Supreme Court. He waived a jury and the trial proceeded before the court and testimony was taken. On November 3, petitioner, who was the defendant and will hereinafter be referred to as such, moved through his counsel for a mistrial on the ground that the district attorney had withheld exculpatory evidence. There followed a long discussion in which defendant's counsel was challenged to specify the evidence he claimed to be exculpatory. It finally developed that it consisted of statements of several persons to the effect that defendant had not been present at the restaurant at the time the crime charged was alleged to have been committed. The district attorney disclaimed the possession of any written material executed or signed by any such person, but admitted having heard of statements to that effect. The discussion was not specific as to what the defense claimed existed or as to exactly what material the prosecution possessed. November 3 was a Friday and the court ruled that the district attorney should give the defense a list of the names and addresses of all persons who had made such statements on the following Monday, and that the court would hear the defendant on what preparation he would require at that time. A list was submitted by the district attorney and the parties appeared on November 6. At that time the record does not disclose any immediate ruling on the motion for a mistrial but it was apparently assumed by all that the trial would proceed. However, taking of testimony did not resume and there was further discussion as to what the district attorney should produce. Unable to procure a satisfactory solution to what he deemed an impasse, and fearful that defendant's rights could not be protected, the court granted defendant's motion for a mistrial. The district attorney noted an exception. Defense counsel, who had taken no part in this last discussion, then announced that he joined in the objection and was willing to proceed. The court adhered to his decision and set a date for a new trial.

We conclude from the record that at the time the court granted the motion for a mistrial the defendant's motion had not been determined or withdrawn. In fact no definitive ruling prior to that time had been announced, and it was not until after announcement that the defendant indicated that he no longer desired the exculpatory material. It was not only the province of the court, but his duty, to rule on the application. After the ruling it was discretionary with him whether to allow a withdrawal. We are not concerned on this application whether this discretion was exercised as well as it might have been under the circumstances.

Having sought the relief of a mistrial the defendant cannot claim double jeopardy if that relief is granted, whether properly or improperly. But even if it be assumed that there was no viable motion at the time the mistrial was granted, it does not follow that a new trial on the indictment is altogether foreclosed. 'The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the adminsitration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed.' (Wade v. Hunter, 336 U.S. 684, 688--689, 69 S.Ct. 834, 837, 93 L.Ed. 974.) Whenever the ends of justice might otherwise be defeated it is the duty of the trial judge to declare a mistrial. It was early recognized that it was impossible to list all the circumstances which would warrant such action but, if the decision rests on a sound discretion exercised with care and caution, the responsibility is that of the trial judge (United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165). Even over the objection of the defendant, the trial judge, for any reason he deems compelling, may declare a mistrial and the defense of double jeopardy is unavailing (Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968). Even where the trial judge is over-assiduous and his action premature, double jeopardy will not result (Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901). And this has been held even where the record does not clearly reveal the motivation of the trial judge in declaring the mistrial (Gori v. United States, Supra, at 367, 81 S.Ct. 1523).

The application should be denied.

The application is denied.

Application for a writ of prohibition denied, and the petition dismissed, without costs and without disbursements.

All concur, except STEVENS, P.J., and MURPHY, J., who dissent in an Opinion by MURPHY, J.

MURPHY, Justice (dissenting).

We disagree and believe that a retrial of this defendant would violate his constitutional right not to be placed twice in jeopardy for the same offense. Petitioner's trial on a pending indictment was commenced on October 31, 1972 before a Trial Judge sitting without a jury and testimony was received. On November 2nd, defense counsel moved for a mistrial on the basis of an allegedly prejudicial article which had appeared in that day's issue of The New York Times. The Trial Justice advised counsel that he had not read the particular article referred to and volunterred to refrain from reading the Times during the pendency of the trial, which then continued. Significantly, in light of later events, the mistrial motion was neither expressly withdrawn nor denied; although all parties obviously assumed it had been completely disposed of. On November 3rd, the defense again moved for a mistrial, this time because of the prosecution's asserted failure to turn over to defense counsel certain exculpatory material then in its possession, in violation of the rule enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. A lengthy colloquy ensued during which the prosecutor, inter alia, denied possession of any such exculpatory material. In any event, the matter was apparently resolved when the prosecutor agreed to turn over to defendant, on that Friday afternoon, a list of witnesses who might have information of an exculpatory nature. The Trial Justice thereupon stated:

'Under the circumstances, I'm reserving decision on the motion for a mistrial.

'Mr. Perrin (defense counsel), if after you have examined this information as submitted by the district attorney, you still feel that you are being prejudiced, the defendant is being prejudiced, I will then hear further arguments, permit...