People v. Ainsworth

• Decision Date: 09 February 1989
• Citation: 145 A.D.2d 74,537 N.Y.S.2d 798
• Parties: The PEOPLE of the State of New York, Respondent, v. Alan AINSWORTH, indicted as George Alan Ainsworth, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 798

537 N.Y.S.2d 798

145 A.D.2d 74

The PEOPLE of the State of New York, Respondent, v. Alan AINSWORTH, indicted as George Alan Ainsworth,

Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Feb. 9, 1989.

Deirdre Roney, Brooklyn, of counsel (Mark Dwyer with her on the brief, Robert M. Morgenthau, Dist. Atty., New York City, attorney) for respondent.

Arthur H. Hopkirk, of counsel (Philip L. Weinstein, attorney), New York City, for defendant-appellant.

Before SULLIVAN, J.P., and ASCH, MILONAS, ELLERIN and WALLACH, JJ.

WALLACH, Justice.

Defendant, nearly 80 years old, stands convicted, following his fourth trial, of murder in the second degree and is now serving an indeterminate sentence of from 15 years to life. He does not dispute that sufficient evidence was produced by the People to show that after a series of petty thefts and other provocations committed at their common residence by his former subtenant, Robert Davis, a burly ex-convict 35 years his junior, defendant intentionally caused the latter's death by shooting him four times with a pistol. He now appeals on jurisdictional and double jeopardy grounds.

Defendant was first tried for this crime in 1983 before Justice Alfred H. Kleiman and a jury. At the close of the People's case defendant moved for a trial order of dismissal, which motion he renewed at the close of the entire case. When the jury failed to reach a verdict, the court declared a mistrial and reserved decision on the motion. Two months later the court granted the motion on the ground that there was insufficient evidence to sustain the essential element of the murder charge that defendant intended to cause Davis' death, but granted leave to the People to re-present the lesser included offense of manslaughter in the second degree to the grand jury.

The People appealed. We reversed, reinstated the murder count of the indictment, and remanded for trial (People v. Ainsworth, 106 A.D.2d 357, 483 N.Y.S.2d 287; hereafter "Ainsworth I ").

Defendant thereupon proceeded to trial before Justice Eve Preminger, which aborted in a mistrial when he suffered a heart attack. A third trial before Justice James J. Leff resulted in a jury deadlock on the murder charge, but a conviction on a weapons charge, for which defendant was sentenced to a definite period of imprisonment of one year. Although subsequently offered a plea to a lesser included offense that would have disposed of the murder count and would have involved only a sentence of probation, defendant opted for a fourth trial with the dire outcome to him set forth above.

Defendant now urges for the first time that the murder indictment should be dismissed because it was improperly reinstated by us after its dismissal by the trial judge in the first trial. His contention is soundly based on applicable law. "The right of review by appeal in criminal matters ... is determined exclusively by statute" (Matter of State v. King, 36 N.Y.2d 59, 63, 364 N.Y.S.2d 879, 324 N.E.2d 351), and is to be strictly construed (People v. Rossi, 5 N.Y.2d 396, 400, 185 N.Y.S.2d 5, 157 N.E.2d 859; People v. Garofalo, 71 A.D.2d 782, 419 N.Y.S.2d 784, app. dism. 49 N.Y.2d 879, 427 N.Y.S.2d 990, 405 N.E.2d 233). The first trial of this case began in June 1983, shortly after amendments to CPL 450.20(2) and CPL 290.10 became effective on May 31st of the same year. Concerning these amendments, we noted in People v. Brummel, 136 A.D.2d 322, 526 N.Y.S.2d 823, that a trial court was thereby empowered to reserve decision upon a motion for a trial order of dismissal until after the jury verdict has been rendered and accepted by the court. The effect of these amendments, we held in Brummel, was to overrule People v. Gallo, 75 A.D.2d 148, 431 N.Y.S.2d 1009, permitting an appeal by the People from a trial order of dismissal after a deadlocked jury forced a mistrial upon the theory that such order should be viewed as rendered at the commencement stage of the second trial rather than in the course of the first. We further held in Brummel that we were without jurisdiction to entertain the People's appeal, and accordingly dismissed it. With a procedural posture in this case similar to that in Brummel (trial order of dismissal following a jury deadlock), the Brummel ruling must now control the disposition of this case.

The People would have us sidestep the issue by invoking either the doctrine of law of the case, or by finding a waiver of the jurisdictional point by defendant in Ainsworth I. These suggestions do not avail to salvage Ainsworth I. As the Court of Appeals stated in People v. McDonald, 68 N.Y.2d 1, at footnote 9 p. 14, 505 N.Y.S.2d 824, 496 N.E.2d 844, "appealability goes to the subject matter jurisdiction of the court ..." (citing People v. Marra, 13 N.Y.2d 18, 20, 241 N.Y.S.2d 409, 191 N.E.2d 792 and cases there cited). Thus Ainsworth I lacks a jurisdictional base. Also, the failure of defendant to raise this jurisdictional point on his first appeal cannot constitute a waiver, since subject matter jurisdiction of a court, otherwise absent, cannot be engrafted either by consent or waiver (Editorial Photocolor v. Granger, 61 N.Y.2d 517, 523, 474 N.Y.S.2d 964, 463 N.E.2d 365; People v. Ahmed, 66 N.Y.2d 307, 310, 496 N.Y.S.2d 984, 487 N.E.2d 894; People v. Harper, 37 N.Y.2d 96, 99, 371 N.Y.S.2d 467, 332 N.E.2d 336). And, because our appellate order reinstating the murder count lacked jurisdiction, as a substantive nullity it cannot be regarded as operative for later expansive use (McConnell v. Williams Steamship Co., 239 A.D. 393, 395, 267 N.Y.S. 554). We would note that we are not giving retroactive effect to our 1988 Brummel decision in order now to vacate our 1984 decision in Ainsworth I. Brummel did not newly formulate a judicially crafted principle; it was, rather, simply declarative of the mandate of the 1983 CPL amendments, supra. Consequently we are now simply giving prospective effect to a statute, and not retroactive effect to a decision. For these reasons, cases cited by the People which preclude reconsideration of matter determined on a prior appeal in the course of a second appeal (e.g., Foley v. Roche, 86 A.D.2d 887, 447 N.Y.S.2d 528, lv. to appeal den. 56 N.Y.2d 507, 453 N.Y.S.2d 1025, 438 N.E.2d 1147; People v. Taylor, 87 A.D.2d 771, 450 N.Y.S.2d 370, aff'd 57 N.Y.2d 729...