People ex rel. Schlesinger v. Glick

• Decision Date: 23 December 1971
• Citation: 327 N.Y.S.2d 665,38 A.D.2d 35
• Parties: The PEOPLE of the State of New York ex rel. Alice SCHLESINGER on Behalf of George Kyrimes, Relator-Respondent, v. Albert GLICK, Warden Men's House of Detention, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 665

327 N.Y.S.2d 665

38 A.D.2d 35

The PEOPLE of the State of New York ex rel. Alice

SCHLESINGER on Behalf of George Kyrimes, Relator-Respondent, v. Albert GLICK, Warden Men's House of Detention, Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 23, 1971.

Lewis R. Friedman, New York City, of counsel (Michael R. Juviler and Hugh Anthony Levine, Asst. Dist. Atty., New York City, with him on the brief, Frank S. Hogan, Dist. Atty.), for appellant.

Julia P. Heit, New York City, of counsel (Robert Kasanof, New York City, attorney), for petitioner-respondent.

Before CAPOZZOLI, J.P., and McGIVERN, MURPHY, STEUER and EAGER, JJ.

MURPHY, Justice.

Petitioner was brought to trial on charges of robbery, first degree. On the second day of the trial the case was submitted to the jury. At about 11:00 P.M. that night, after approximately 12 1/2 hours of deliberation, the jury, not having agreed, was discharged by the Court and the defendant remanded for a new trial.

Thereafter, petitioner-respondent by writ of habeas corpus sought his discharge. The writ of habeas corpus was sustained, 325 N.Y.S.2d 869, in that the discharge of the jury by the Court was improper, was done without the consent of counsel, and that the petitioner cannot be retried without subjecting him to double jeopardy. It is this judgment which sustains the writ that is the subject of this appeal.

At the time of the trial the conditions under which a jury could be discharged before agreement were set forth in the Code of Riminal Procedure, Section 428, Subdivision 2 thereof, which reads as follows:

'When after the lapse of such time as shall seem reasonable to the court, they shall declare themselves unable to agree upon a verdict.'

At the time of discharge by the Court, the jury was not asked nor did they state that they were unable to agree.

The Court did inquire if they had reached a verdict. The answer was no. The Court then stated: 'It is now seven minutes after eleven. You have been deliberating for over twelve hours. You are excused at this time. Please report back to the central jury room at 10 o'clock tomorrow morning. The Court declares a mistrial.'

In the case of People ex rel. Stabile v. Warden, 202 N.Y. 138, 149--150, 95 N.E. 729, 732, the Court stated:

'From the plain language of the statute itself it appears that it was not the intention of the Legislature to permit the court to exercise discretion in discharging a jury at any point of time prior to a declaration by them of their inability to agree. If the statute means that the court has the right in its discretion to discharge a jury at any time before it has agreed, then the last clause of subdivision 2 of the section quoted is meaningless. . . .

'We repeat that out statute is plain. . . . It was intended to take away the unqualified discretion that had theretofore existed in the courts in regard to discharging a jury and make the discretion of the courts dependent upon a prior declaration by the jury of their ability or inability to agree. . . .'

To the same effect is Matter of Adamo v. Justices of Supreme Court, 28 A.D.2d 653, 280 N.Y.S.2d 742.

Clearly, then, the discharge of the jury without the consent of the defendant, although well intentioned, was violative of the statute and in effect was an acquittal of the relator. Accordingly, the judgment should be affirmed.

Judgment, Supreme Court, New York County, entered on October 21, 1971, affirmed.

CAPOZZOLI, J.P., and McGIVERN, J., concur in separate opinions.

STEUER and EAGER, JJ., dissent in an opinion by STEUER, J McGIVERN, Justice (concurring):

I concur, primarily because the demand of Section 428(2) of the Code of Criminal Procedure here applicable was not fulfilled by the court. This section requires that the jury 'shall declare themselves unable to agree upon a verdict.' This language, fixed by the Legislature, has rigidity, and has been declared not changeable by the courts. People ex rel. Stabile v. Warden, 202 N.Y. 138, 95 N.E. 729; People ex rel. Luetje v. Ketcham, 45 Misc.2d 802, 257 N.Y.S.2d 681 (Sup.Ct., Nassau Co., 1965). If the statute under review was partly couched in an 'inadvertent expression,' as intimated by the dissent, it is not the prerogative of the courts 'to correct supposed errors, omissions or defects in legislation.' Triborough Bridge & Tunnel Authority v. B. Crystal & Son, 2 A.D.2d 37, 41, 153 N.Y.S.2d 387, 390, aff'd 2 N.Y.2d 961, 963, 162 N.Y.S.2d 362, 142 N.E.2d 426. Only by legislative amendment, such as is now to be found in CPL 310.60(1)(a), not here applicable, which replaces Section 428 of the Code, could the required declaration of the jury be eliminated.

Further, I believe a second trial, following an improperly declared mistrial, runs afoul of the 'double jeopardy' prohibition. The second trial forces the defendant to run the gauntlet again, but at a time when all the advantage has passed to the prosecutor, as he (the prosecutor) will be indubitably more prescient the second time around. (See: A.C. Stream, Double Jeopardy Clause of the Fifth Amendment--A Case for Acquittal by Hung Jury, N.Y.L.J., October 2, 1970, p. 1.) And it may be noted that in a recent case, the Supreme Court of the United States upheld the ruling of the United States District Court of Utah that a defendant had been placed in double jeopardy by a second trial for the same offense held following a declaration of a mistrial by the Trial Judge. United States v. Jorn, 1971, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543. Speaking for the Court, Justice Harlan said (p. 483, 91 S.Ct. p. 556):

'. . . Reprosecution after a mistrial has unnecessarily been declared by the trial court obviously subjects the defendant to the same personal strain and insecurity regardless of the motivation underlying the trial judge's action. . . .'

CAPOZZOLI, Justice Presiding (concurring).

The only reason why I vote to affirm is because the Court of Appeals has specifically stated in clear and direct language that the trial court has no unqualified discretion in regard to discharging a jury. Its discretion depends 'upon a prior declaration by the jury of their ability or inability to agree . . .'...