Nolan v. Court of General Sessions of New York County

• Decision Date: 29 March 1962
• Citation: 11 N.Y.2d 114,181 N.E.2d 751,227 N.Y.S.2d 1
• Parties: , 181 N.E.2d 751 In the Matter of George NOLAN et al., Respondents, v. COURT OF GENERAL SESSIONS OF the COUNTY OF NEW YORK et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 1

227 N.Y.S.2d 1

11 N.Y.2d 114, 181 N.E.2d 751

In the Matter of George NOLAN et al., Respondents, v. COURT OF GENERAL SESSIONS OF the COUNTY OF NEW YORK et al.,

Appellants.

Court of Appeals of New York.

March 29, 1962.

Frank S. Hogan, Dist. Atty. (Daniel J. Sullivan and H. Richard Uviller, New York City, of counsel), for appellants.

Victor J. Herwitz, New York City, for respondents.

DESMOND, Chief Judge.

The three petitioners brought this proceeding (Civil Practice Act, art. 78) against the Judges of the Court of General Sessions and the District Attorney for an order prohibiting the retrial of an indictment. Petitioners, who are police officers, were indicted jointly in 1959 for attempted burglary and attempted grand larceny. At the trial which lasted for several weeks, one count (attempted grand larceny) was dismissed and after long deliberations the jury reported its inability to agree as to the other (attempted burglary) count. In March, 1960 the case came on again for trial. The Assistant District Attorney and counsel for defendants, with defendants present, tendered to the presiding Judge a stipulation which they had agreed upon and to which they asked the Judge to give his approval. The stipulation recited that the defendants waived trial before a jury and consented to be tried before the Judge alone, that they waived further confrontation of the witnesses against them and that they consented that all issues in the case be decided by the Judge on the record of the earlier trial, with a further agreement that all of the witnesses called at the former trial would, if called again, testify in the same manner as at the trial which had ended in a disagreement. The stipulation further expressed an agreement that the sitting Judge should determine the credibility of the witnesses from the former record, that a copy of the stenographic minutes of the former trial should be made available to defendants' counsel, that on a future date not less than eight weeks thence both sides should be permitted to submit briefs and oral arguments and such motions as they wished to make and that the Judge, if he should deny all motions to dismiss the indictment, might render judgment. The whole record taken at the earlier trial except the charge to the jury was to be submitted. Petitioners agreed that they would not on any appeal question the validity of this method of trial. The Judge when presented with the stipulation was careful to see to it that each of the defendants separately stated that he understood and agreed to the arrangements. He announced that he accepted the stipulation. The People then offered the former trial record in evidence. The conclusion is inescapable that what happened on that day, as just above outlined, amounted to no less than the presentation to the Judge, with jury waived, of all the evidence in the case. However, eight months later the Judge called the case up again in open court, stated that he questioned 'the legal propriety of a Court making a determination solely on a record and without confrontation of witnesses' and announced that he was vacating the stipulation. He directed the District Attorney to set the case down for retrial. All this was on the court's own motion. Counsel for defendants objected and offered on behalf of his clients to consent that if the court so desired the court and the District Attorney should have the right to call any of the witnesses who had testified at the previous trial and have them give the same testimony they had given before and offered to make any other amendment of the stipulation that the Judge should consider necessary. The Judge, however, stated that the interests of justice required that the stipulation be vacated and that a formal trial be held. The case was marked for trial on a later date.

When the cause was again reached on the Trial Calendar the defendants' counsel appeared and renewed his objection to the vacating of the stipulation and notified the court that the defendants would claim that any trial other than one in accordance with the stipulation would be double jeopardy. The Judge adhered to his order for a jury trial and petitioners commenced this prohibition proceeding.

This proceeding was dismissed by Special Term but the Appellate Division reversed and made the order of prohibition which is here on appeal by the People.

We are convinced that what happened in March, 1960 amounted to the presentation of the evidence on a trial of the remaining count of this indictment. The parties had agreed in a stipulation approved by the court that the evidence would be presented to the Judge in the form of the record of the former trial. All that remained was argument by counsel to be followed by a judgment. This was jeopardy. The controlling rule, found in section 430 of the Code of Criminal Procedure, is that when a jury has been discharged or prevented from reaching a verdict 'by reason of an accident or other cause' the cause may be again tried. The decisions likewise hold that only in certain exceptional circumstances does a Trial Judge have discretionary power to discharge a jury and put the defendant to a new trial. In People ex rel. Stabile v. Warden of City Prison (202 N.Y. 138, 95 N.E. 729) a jury was discharged in a murder trial...