People v. Baptiste

• Decision Date: 25 October 1988
• Citation: 72 N.Y.2d 356,530 N.E.2d 377,533 N.Y.S.2d 853
• Parties: , 530 N.E.2d 377 The PEOPLE of the State of New York, Respondent, v. Anthony BAPTISTE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 853

533 N.Y.S.2d 853

72 N.Y.2d 356, 530 N.E.2d 377

The PEOPLE of the State of New York, Respondent, v. Anthony BAPTISTE, Appellant.

Court of Appeals of New York.

Oct. 25, 1988.

Arnold S. Cohen, Caesar Cirigliano and Laura J. Miller, for appellant.

Elizabeth Holtzman, Dist. Atty. (Sholom J. Twersky and Barbara D. Underwood, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Defendant appeals from an order of the Appellate Term which affirmed a judgment entered on a guilty plea convicting him of the misdemeanor of sexual abuse in the third degree. The guilty plea was entered after an earlier trial had been terminated without his consent because the jury was unable to reach a verdict. Defendant contends that the trial was unnecessarily aborted and thus his reprosecution violated the Double Jeopardy Clauses of the United States and New York Constitutions (U.S. Const. 5th Amend.; N.Y. Const., art. I, § 6). ^* We agree and reverse the order of Appellate Term and dismiss the information.

Defendant and a codefendant were charged with assault, third degree, sexual misconduct and sexual abuse, third degree. Their trial commenced March 30, 1984 and continued on April 2 and 3. The jury was charged on the morning of April 4 and, at the conclusion of the instructions, at 11:55 A.M., retired to deliberate. Shortly after retiring, the jury requested a readback of the testimony of the complainant, the codefendant and the arresting officer. The reading was deferred until after lunch and required much of the afternoon. After the readback, the jury continued deliberating for about an hour and then requested the exhibits and a readback of a doctor's testimony. They recessed for dinner from 6:30 P.M. until 8:00 P.M. and at 9:15 P.M. the jury requested that the testimony of the complainant, codefendant and arresting officers be read back again. The court asked the jurors to specify which portions of the testimony they were interested in and when they had not responded by 10:00 P.M., the Judge summoned them to the courtroom and clarified his earlier instructions. After the jury left the courtroom, the Judge advised counsel, "If they have not reached a verdict by eleven-thirty we'll have to declare a mistrial, so if they can't reach a verdict it has to be a mistrial." The jury was in the courtroom again from 11:40 P.M. to midnight as selected testimony was read back in response to the jury's earlier request. At the conclusion, the court directed the jurors to return to the jury room and decide whether the court had complied sufficiently with their request and "whether or not you feel that further deliberations will be fruitful in arriving at a verdict". After the jury left, the court asked defendant's counsel to consent to a mistrial. He refused.

At 12:25 A.M., the court, sua sponte and over defendant's objection, returned the jury to the courtroom and declared a mistrial. The entire colloquy between the court and the foreperson before its ruling follows:

"THE COURT: Mr. Foreperson have the Jury reached a verdict on any of the counts as to any of the defendants?

"THE FOREPERSON: No, Sir. Still have a lot of discrepancies as far as deciding the verdict. We all having [sic ] different opinions.

"THE COURT: And have [sic ] there been any movement in the voting in the last couple of hours?

"THE FOREPERSON: Yes.

"THE COURT: Do you feel that further deliberations will be fruitful?

"THE FOREPERSON: At this point, no, Sir.

"THE COURT: It is the opinion of the jury that you cannot reach a verdict?

"THE FOREPERSON: We cannot reach a verdict, Sir.

"THE COURT: All right and that further deliberation will not be fruitful?

"THE FOREPERSON: No, Sir, not at this time."

The court then discharged the jury.

Both the State and Federal Constitutions provide that the State may not put a defendant in jeopardy twice for the same offense (N.Y. Const., art. I, § 6; U.S. Const. 5th Amend.; Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707). These constitutional protections unequivocally prohibit a second trial following an acquittal. If the innocence of the accused has been confirmed by a final judgment, no matter how erroneous that judgment may be, the Constitutions conclusively presume that a second trial would be unfair.

Because jeopardy attaches as soon as a jury has been sworn (CPL 40.30[1][b] ), our constitutional provisions also embrace the defendant's right to be free from reprosecution if the first trial has not continued to conclusion. As a general rule, the prosecutor is entitled to one, and only one, opportunity to require the accused to stand trial for a defendant possesses a "valued right" to have his trial completed by a particular tribunal on the first presentation of the evidence (see, Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 557, 27 L.Ed.2d 543; and see, Arizona v. Washington, 434 U.S. 497, 503-504, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717; Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199). Even if the first trial is not completed, a second prosecution may be grossly unfair because it increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.

If the merits of the charges against the defendant have not been resolved, however, the "valued right" to have the trial concluded by a particular tribunal may be subordinate to the public interest "in seeing that a criminal prosecution proceed to verdict" (Illinois v. Somerville, 410 U.S. 458, 463, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425; Arizona v. Washington, supra, 434 U.S. at 505, 98 S.Ct. at 830). The "classic example" of charges which may be retried when the first trial has been aborted without defendant's consent arises when the jurors reach an impasse and are unable to arrive at a verdict (Downum v. United States, 372 U.S. 734, 735-736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100; Matter of Owen v. Stroebel, 65 N.Y.2d 658, 491 N.Y.S.2d 611, 481 N.E.2d 243; Matter of Plummer v. Rothwax, 63 N.Y.2d 243, 481 N.Y.S.2d 657, 471 N.E.2d 429). Retrial is not prohibited in such cases.

The determination of a Trial Judge that deadlock has occurred and that a mistrial is necessary involves the exercise of discretion. The trial court's judgment is entitled to great deference by reviewing courts for it is best situated to take all the circumstances of the particular proceeding into account and determine whether a mistrial is in fact required (Matter of Plummer v. Rothwax, supra, at 250, 481 N.Y.S.2d 657, 471 N.E.2d 429; Hall v. Potoker, 49 N.Y.2d 501, 505, 427 N.Y.S.2d 211, 403 N.E.2d 1210; see also, People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794; Illinois v. Somerville, supra, 410 U.S. at 462, 93 S.Ct. at 1069; see also, People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134; Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901). Nevertheless, Trial Judges are not free to act without restraint. The defendant's right to obtain a verdict from the first jury selected should not be...