People ex rel. Luetje v. Ketcham

• Decision Date: 11 March 1965
• Citation: 45 Misc.2d 802,257 N.Y.S.2d 681
• Parties: PEOPLE ex rel. Fred J. LUETJE, Relator, for a Writ of Habeas Corpus v. James KETCHAM, Sheriff of Nassau County, and William Cahn, District Attorney of Nassau County, Respondents.
• Court: New York Supreme Court

Page 681

257 N.Y.S.2d 681

45 Misc.2d 802

PEOPLE ex rel. Fred J. LUETJE, Relator, for a Writ of Habeas Corpus v. James KETCHAM, Sheriff of Nassau County, and William Cahn District Attorney of Nassau County, Respondents.

Supreme Court, Special Term, Nassau County, Part II.

March 11, 1965.

Lawrence W. McKeown, Mineola, for petitioner.

William Cahn in pro. per.

DANIEL G. ALBERT, Justice.

On this application the relator seeks (1) to be released from custody, and (2) to restrain the respondent District Attorney from bringing relator to trial a second time in the Nassau County District Court. Judgment is granted prohibited the respondent District Attorney from further prosecution of the relator but as to the release from custody the petition is dismissed.

On January 6th, 7th and 8th, 1965 the relator was tried by a jury of six for petit larceny. After its charge to the jury, the Court submitted the case to the jury at 11:15 A.M. At 1 P.M. the jury returned to the courtroom for further instructions and at some unspecified time returned to the juryroom. At 1:40 P.M. the jury returned to the courtroom and the foreman announced 'We are unable to reach a verdict'. In answer to the Court's query concerning further deliberation after lunch, four of the jurors said they were deadlocked. Juror #4 said, 'I don't know so [sic] maybe if we thought about it while having lunch we might' [reach a verdict]. Juror #6 said, 'I feel we should give it a little more deliberation'. Thereupon the Court declared a mistrial, discharged the jury and stated 'the defendant is therefore discharged on his own recognizance. The defendant is released in his own custody.'

Obviously since the relator is not in the custody of either of the respondents, a habeas corpus proceeding for his release from custody does not lie. In People ex rel. Albert v. Pool, 77 App.Div. 148, 78 N.Y.S. 1026 (where the relator was released on bail) the Court wrote at page 150, 78 N.Y.S. at page 1028, 'The imprisonment or restraint in his liberty * * * is an actual physical restraint by which the liberty of the individual is in some way interfered with. A person cannot be said to be restrained in his liberty when he can do what and go where he pleases. The mere fact that his bail has authority to surrender him to custody at any time is not a restraint of his liberty. That a person is liable to an arrest or imprisonment in the absence of any actual restraint does not authorize either a writ of habeas corpus * * * to determine whether or not he is subject to be imprisoned in the future.' (See also People ex rel. Lutfey v. Byrne, 247 App.Div. 797, 286 N.Y.S. 159). The authorities cited by petitioner's counsel are distinguishable. The first, Reis v. U. S. Marshal, D.C., 192 F.Supp. 79, involved subd. (c) of Section 2241, Title 28 of the U.S. Code which provides for habeas corpus if the prisoner is in custody 'or is committed for trial before some court thereof'. The second, U. S. ex rel. Von Cseh v. Fay, 2 Cir., 313 F.2d 620, involved a person on 'parole' who according to § 213 of the N.Y. Correction Law, is 'in the legal custody of the warden of the prison'.

With respect to the relief in the nature of prohibition sought by the relator, the proceeding is on firmer ground. In the first place when the Court declared a mistrial no order was made from which an appeal could be taken. Secondly, although the relator could move for a dismissal on the retrial, it has been held that he need not await a retrial to raise the defense of double jeopardy (Mtr. of McCabe v. County Court of the State of New York, County of Bronx, et al., 24 Misc.2d 472, 199 N.Y.S.2d 241; Mtr. of Nolan v. Court of Gen. Sessions, 15 A.D.2d 78, 222 N.Y.S.2d 635, aff'd 11 N.Y.2d 114, 227 N.Y.S.2d 1, 181 N.E.2d 751). To quote from Matter of Martinis v. Supreme Court, 20 A.D.2d 79, 86, 244 N.Y.S.2d 949, 959, "Prohibition is the traditional remedy' where double jeopardy is claimed to exist (Matter of Kraemer v. County Court of Suffolk County, 6 N.Y.2d 363, 189 N.Y.S.2d 878, 160 N.E.2d 633).'

The record here clearly reveals that to retry the relator would constitute double jeopardy. Section 428 of the Code of Criminal Procedure authorizes a discharge of a jury in three situations after they have retired to...