People v. Alvarez

• Decision Date: 19 November 1976
• Citation: 88 Misc.2d 709,389 N.Y.S.2d 980
• Parties: The PEOPLE of the State of New York v. Jesus ALVAREZ et al., Defendant.
• Court: New York Supreme Court

Page 980

389 N.Y.S.2d 980

88 Misc.2d 709

The PEOPLE of the State of New York v. Jesus ALVAREZ et al., Defendant.

Supreme Court, Trial Term, New York County, Part 3.

Nov. 19, 1976.

Bernard M. Brickel, New York City, for defendant.

Sterling Johnson, Jr., Special Asst. Dist. Atty., New York City (Arthur M. Diamond, New York City, of counsel), for plaintiff.

DECISION ON MOTION AFTER TRIAL

BENTLEY KASSAL, Justice.

Issues

After re-trial of this indictment, two issues are presented by defendant's motion to set aside the jury verdict convicting him of Conspiracy as well as five substantive crimes:

1. Does the Double Jeopardy Clause of the Fifth Amendment bar conviction on the Conspiracy count which had been dismissed by a trial order of dismissal before the first trial of this case ended in a mistrial?

2. If retrial of the conspiracy count is so barred, are the convictions obtained on the other counts in the indictment fatally tainted by the inclusion of this count in the second trial?

Facts

Defendant was indicted for Conspiracy in the First Degree, Criminal Sale of a Controlled Substance in the First Degree, Criminal Possession of a Controlled Substance in the First and Third Degrees and Criminal Possession of a Weapon in the Second and Third Degrees.

He was first brought to trial in February, 1976.

At the conclusion of the People's case, the trial judge dismissed the conspiracy charge with the explanation: 'I dismissed that count on the grounds that, in my opinion, the People did not make out a prima facie case of conspiracy . . .. As a matter of law . . ..' (P. 455 of transcript.)

The court then granted defendant's motion for a mistrial on the following grounds:

'There has been a great deal of hearsay evidence elicited during the course of this trial. I don't know that I could satisfactorily instruct this jury to wipe from their minds all of the hearsay evidence that was elicited under the theory of conspiracy. I could give them instructions in that vein, but I don't think these instructions would, in and of themselves, eliminate from the jurors' minds all of those prejudicial remarks--all of that prejudicial evidence rather that was elicited'. (Pp. 458--459 of transcript.)

On March 23, 1976, prior to retrial of this indictment, a general motion was made to a different judge sitting in the calendar part to dismiss the indictment on the basis of Double Jeopardy. The motion was denied without a written opinion (evidently on the basis that the mistrial did not bar subsequent prosecution).

On the basis of the March 23, 1976 decision, the case was assigned to me for re-trial and on the re-trial the indictment was deemed to contain all the counts it contained at the time of the first trial, pursuant to Section 280.20 of the Criminal Procedure Law (CPL). The jury returned a verdict convicting the defendant on all counts submitted to them namely, Criminal Sale of a Controlled Substance in the First Degree, Criminal Possession of a Weapon in the Third Degree (3 counts) and Conspiracy in the First Degree.

By the present motion, defendant again raises the issue of Double Jeopardy. In support of his motion he argues that the recent Court of Appeals decision in People v. Brown, 40 N.Y.2d 381, 386 N.Y.S.2d 848, 353 N.E.2d 811 decided on June 17, 1976 casts doubt on the constitutionality of CPL 280.20 and that this issue was not specifically raised in the prior motion to dismiss the indictment.

The present motion was referred to the aforesaid calendar Judge as a motion to renew the previous application and, in turn, it was returned to me on the grounds that there had been no prior decision by him on this issue of Double Jeopardy.

I Double Jeopardy

A. Conspiracy

Section 280.20 of the CPL provides a 'mechanical rule' for the status of an indictment upon a new trial after a mistrial 'Upon a new trial resulting from an order declaring a mistrial, the indictment is deemed to contain all the counts which it contained at the time the previous trial was commenced, regardless of whether any count was thereafter dismissed by the court prior to the mistrial order.'

The trial order of dismissal granted in the first trial of this indictment falls squarely within the last phrase of CPL Section 280.20 and thus the dismissed Conspiracy count was properly revived under the terms of the statute Unless the statutory procedure itself violated the Double Jeopardy prohibition.

Earlier this year Mr. Justice Joseph D. Quinn, Jr. concluded there was such a violation of the Double Jeopardy prohibition under facts very similar to those presented here (People v. Cuvilje, 85 Misc.2d 628, 380 N.Y.S.2d 872) and I am in general agreement with his reasoning.

The Court of Appeals has even more recently found CPL Section 450.20 (subd. 2) (which permitted appeal of a trial order of dismissal), to be unconstitutional, as violating the prohibition against Double Jeopardy. People v. Brown, supra. It is clear that the reasoning applied in that decision is equally relevant under the facts of this case. After examining the recent Supreme Court trilogy of double jeopardy cases (United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232; United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250; Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265), the Court of Appeals under the facts in its case concluded that where there has been a judgment during trial discharging the defendant on any count the Fifth Amendment prohibits the retrial of the defendant on that count. Further, citing United States v. Jenkins, supra, the Court noted that this 'mechanical' rule is applicable whether the trial order was a resolution of factual issues or on some other basis. People v. Brown, supra, 40 N.Y.2d 386--394, 386 N.Y.S.2d 851--857, 353 N.E.2d 814--820.

As concluded by Justice Quinn after reviewing the Appellate Division, First Department, decision in People v. Brown, 48 A.D.2d 95, 368 N.Y.S.2d 171:

'If, as Brown teaches, that order of dismissal is not made appealable by the subsequent mistrial, then, neither may it be automatically dissolved by mistrial. To hold otherwise would be to do nothing short of reducing the remedy to a tentative finding in a jury trial to be dependent for its continued life upon a subsequent verdict.' People v. Cuvilje, supra, 85 Misc.2d at 632, 380 N.Y.S.2d at 876.

I therefore find that Section 280.20 of the CPL is unconstitutional as applied to the facts on this case, and that the conviction of the crime of Conspiracy in the First Degree is violative of defendant's protection against successive prosecution and repeated jeopardy. N.Y.Const., Art. I § 6; U.S.Const., Amend. V.

B. The Substantive Crimes Charged

The same result does not obtain with respect to the substanti crimes, which were not dismissed before the mistrial was declared. Retrial on these counts on which there has been no determination, is clearly permissible. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425.

II Taint as to Remaining Substantive Crimes

Having determined that the conviction on the Conspiracy count is barred by the Double Jeopardy prohibition, the question remains whether the trial of the indictment containing this count in any way affected the validity of the convictions obtained on the substantive crimes. The best way to assess the effect is to see whether the conduct of the trial and the admission of evidence would have been materially different without the conspiracy charge.

A. Proof of Uncharged Crime

The first issue raised by this procedure is whether it was error to permit proof of a crime not charged in the indictment.

While it is a general rule of evidence in criminal trials that the state may

not prove against the defendant any crime not alleged in the indictment, five major exceptions to this rule were recognized in the classic case of People v. Molineux, 168 N.Y. 264, 61 N.E. 286. The fourth exception described therein and denoted as 'common plan or scheme' clearly governs here. Such evidence is competent and an exception to the hearsay rule where a system or connection between the charged and uncharged crimes or acts is shown with a common motive or intent so that the uncharged crime tends to prove the crime or crimes charged. Id. at 305--311, 61 N.E. 299.

B. Competency of Acts or Statements of the Alleged Co-Conspirators Made in Absence of Defendant

At trial, various acts and declarations of alleged co-conspirators were received into evidence on the well established ground that such acts and declarations of one co-conspirator which occur during and in furtherance of the conspiracy or common scheme are admissible and provable against any other co-participant as an exception to the hearsay rule. People v. Rastelli, 37 N.Y.2d 240, 244, 371 N.Y.S.2d 911, 914, 333 N.E.2d 182, 183--184, cert. den. 423 U.S. 995, 96 S.Ct. 421, 46 L.Ed.2d 369; People v. Luciano, 277 N.Y. 348, 358, 14 L.Ed.2d 433, 435, cert. den. 305 U.S. 620, 59 S.Ct. 81, 83 L.Ed. 396.

The exclusion of the conspiracy count from the indictment would not, in itself, render such proof incompetent. 'When a conspiracy is shown, or evidence on the subject is given sufficient for the jury, then the acts and declarations of the conspirators, in furtherance of its purpose are competent, and . . . it is not necessary, in order to make such proof competent, that the conspiracy should be charged in the indictment.' People v. McKane, 143 N.Y. 455, 465, 470, 38 N.E. 950, 954. See also People v. Becker, 215 N.Y. 126, 109 N.E. 127, motion for reargument den. 215 N.Y. 721, 109 N.E. 1086; People v. Cassidy, 213 N.Y. 388, 107 N.E. 113; People v. Miles, 192 N.Y. 541, 84 N.E. 1117; United States v. Lev, 278 F.2d 605 cert. den. 363 U.S. 812, 80 S.Ct. 1248, 4 L.Ed.2d 1153.

Nor does the admission of such evidence violate the defendant's right of confrontation under the Sixth Amendment, even when the defendant is not prosecuted for the...