Nolan, Application of

• Decision Date: 14 December 1961
• Citation: 15 A.D.2d 78,222 N.Y.S.2d 635
• Parties: Application of George NOLAN, Robert Van Horn and James Svenstrup, Petitioners-Appellants, for an order pursuant to Article 78 of the Civil Practice Act directed to the Court of General Sessions of the County of New York and each and every Judge of that Court including Hon. Thomas Dickens, the Judge scheduled to preside in Part III of said Court during the January 1961 Term, and Hon. Frank S. Hogan, individually and as District Attorney of New York County, Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 635

222 N.Y.S.2d 635

15 A.D.2d 78

Application of George NOLAN, Robert Van Horn and James Svenstrup, Petitioners-Appellants, for an order pursuant to Article 78 of the Civil Practice Act directed to the Court of General Sessions of the County of New York and each and every Judge of that Court including Hon. Thomas Dickens, the Judge scheduled to preside in Part III of said Court during the January 1961 Term, and Hon. Frank S. Hogan, individually and as District Attorney of New York County, Respondents-Respondents.

Supreme Court, Appellate Division, First Department.

Dec. 14, 1961.

Victor J. Herwitz, New York City (Frederic A. Johnson, New York City, with him on the brief), for petitioners-appellants.

Daniel J. Sullivan, New York City, of counsel (H. Richard Uviller, New York City, with him on the brief; Frank S. Hogan, Dist. Atty., New York City), for respondents-respondents.

Before BREITEL, J. P., and McNALLY, STEVENS, EAGER and STEUER, JJ.

EAGER, Justice.

The petitioners appeal from an order of Special Term dismissing their petition herein. The proceeding is in the nature of a prohibition proceeding under Article 78 of the Civil Practice Act to prohibit and restrain the Court of General Sessions of the County of New York and the District Attorney of said county from proceeding with a re-trial of the petitioners upon an indictment charging them with the crime of attempted burglary in the third degree. The position of the petitioners is that, under the special circumstances here, a re-trial would constitute double jeopardy and, thus, would be in violation of their common-law and constitutional rights.

The order to show cause instituting this proceeding was made returnable at a Special Term of this court, and Special Term rendered the order appealed from. This procedure was in error in that, pursuant to the provisions of the statute, the application herein for an order directed against the Court of General Sessions should have been made to the Appellate Division. Civil Practice Act, § 1287. The failure, however, of the parties to proceed as directed by statute is immaterial now, in that, by virtue of the appeal, the matter is now before this court and the parties have submitted the matter to it upon the merits. Under the circumstances, we may dispose of the proceeding as if it had been made returnable here in the first instance.

Special Term dismissed the proceeding upon the ground that it was not properly maintainable in that the 'petitioners have had, and still have, readily available legal means of redress by way of motion and appeal'. (28 Misc.2d 936, 937, 212 N.Y.S.2d 902, 904.) We have recently held, however, that the Article 78 (Civil Practice Act) remedy is available under the circumstances here. Matter of Mack v. Court of General Sessions, 14 A.D.2d 98, 101, 217 N.Y.S.2d 423. See also Matter of McCabe v. County Court, County of Bronx, 24 Misc.2d 472, 199 N.Y.S.2d 241. Accordingly, we will dispose of the matter on the merits.

By indictment, dated March 4, 1959, the petitioners were charged with the crimes of attempted burglary in the third degree and attempted grand larceny in the first degree. Following a lengthy jury trial thereon in the Court of General Sessions, the court dismissed the attempted grand larceny count and the jury disagreed on the attempted burglary charge.

Thereafter, upon the case being reached for re-trial, the parties agreed to request a trial by the Court of General Sessions without a jury, with a determination to be made by the trial judge solely on the basis of the prior trial record. Thereupon, and on March 25, 1960, the assistant district attorney, counsel for the defendants and the defendants, appeared in Part IX of the Court of General Sessions, Judge Schweitzer presiding, and announced that they were ready for trial. At that time, a stipulation, signed by the defendants and their counsel was filed with the court, whereby it was agreed that the defendants did waive a trial by jury and consented to be tried by Judge Schweitzer 'sitting as the Court without a jury'; that the defendants did waive further confrontation of witnesses; that all the witnesses who testified at the prior trial if recalled to testify before Judge Schweitzer would testify in the same manner, and that Judge Schweitzer should determine the credibility of the witnesses upon the record. It was further stipulated that Judge Schweitzer was to consider motions to dismiss the indictment, and that upon denial of such motions he might in his final determination render a judgment of '(a) not guilty, (b) guilty of attempted burglary in the third degree, (or) (c) guilty of unlawful entry.' The defendants in open court did each state that they heard the reading of the stipulation, that they understood the same, and that they agreed to it. The People offered and there was received in evidence the record of the former trial, and the Court stated, 'For the record, a determination will be made in conformance with the stipulation on file. I now reserve decision.'

On November 18, 1960, the case was again called in General Sessions, Judge Schweitzer presiding. The defendants and their counsel were present. After a Bench conference Judge Schweitzer stated that:

'Now, in this case a stipulation was executed * * * wherein it was agreed that the Court would make a determination of innocence or guilt predicated upon the record of a prior trial which ultimately resulted in a disagreement. Since the receipt of this stipulation and upon further reflection, I question the legal propriety of a Court making a determination solely on a record and without confrontation of witnesses, and on my own motion I vacate the stipulation and I ask the District Attorney to set this case down for trial.'

Defense counsel objected and offered to take whatever steps the court desired necessary to avoid any question arising with respect to defendants' right of confrontation, including the giving of permission to the court to call all witnesses who had testified at the prior trial. The court, however, rejected this suggestion.

The matter was set down for trial on December 2, 1960 and defense counsel then appearing, again objected to the court's 'action in declaring a mistrial and in directing that it be set down for trial, and that the stipulation that was entered into by implication need not be adhered to.' Defendants' counsel then indicated their intention to raise the question of double jeopardy.

The People raise no question about the validity of the stipulation for the re-trial of the defendants by Judge Schweitzer in a Court of General Sessions without a jury. We will accept, as conceded by the assistant district attorney on the argument, that the defendants had the power and did effectively waive a jury trial (see People v. Carroll, 3 N.Y.2d 686, 171 N.Y.S.2d 812, 148 N.E.2d 875; People v. Diaz, 10 A.D.2d 80, 198 N.Y.S.2d 27, aff'd 8 N.Y.2d 1061, 207 N.Y.S.2d 278, 170 N.E.2d 411) and any further right of confrontation with the witnesses (see Matter of United Press Assns. v. Valente, 308 N.Y. 71, 82, 123 N.E.2d 777; People v. Sugarman, 248 N.Y. 255, 258, 162 N.E. 24; Diaz v. United States, 223 U.S. 442, 451, 32 S.Ct. 250, 56 L.Ed. 500), and that Judge Schweitzer had the power to try the petitioners upon the record of the former trial and render a judgment thereon. The position of the People is that, so assuming, nevertheless, the defendants 'had not been placed in jeopardy'; and that, even if they had been, the action of Judge Schweitzer, in vacating the stipulation and setting the case down for a formal re-trial was simply the equivalent of a proper granting of a 'mistrial'.

In any discussion with respect to the plea of double jeopardy, it is well to bear in mind that the doctrine that a person shall not be twice put in jeopardy for the same offense was a fundamental principle of the common law and now also exists as a right guaranteed by the Federal and State Constitutions. People ex rel. Stabile v. Warden, Etc., 202 N.Y. 138, 150, 95 N.E. 729, 732; U. S. Constitution, Fifth Amendment; New York State Constitution, Article 1, section 6. Further, that '[t]he prohibition is not against being twice punished, but against being twice put in jeopardy'. United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300. The guarantee 'is that a person shall not be subject to the risk of a second trial' Matter of McCabe v. County Court, County of Bronx, supra, 24 Misc.2d 472, 476, 199 N.Y.S.2d 241, 246.

Concededly, here, as in every case where the plea of double jeopardy is presented, the plea is sustainable only upon it appearing that the defendants were subjected to 'jeopardy' on a prior occasion. Unless there was former jeopardy, there can be no double jeopardy. But it is not always easy to determine whether or not the prior proceedings against a defendant were such that jeopardy did attach. See 22 C.J.S. Criminal Law § 241. It is clear, however, that the determination of whether or not there was former jeopardy in a particular case should be made in view of the purpose of the doctrine. We are to bear in mind that '[t]he defense of former jeopardy is designed to protect the citizen from vexations and successive prosecutions for the same offense.' People v. Ercole, 4 N.Y.2d 617, 621, 176 N.Y.S.2d 649, 653, 152 N.E.2d 77. See also, Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199. Thus, when a defendant is brought to trial and the trial reaches a point where in all fairness to him it should be carried on to a conclusion, the defendant should be considered as having been placed in jeopardy. So, it is settled that a defendant on trial is placed in jeopardy when the trial court is fully organized and evidence is given against the defendant. 'The general rule in this state is that if the court has jurisdiction and all prior proceedings are valid, a prisoner is placed in jeopardy when he has been...