People v. Boynton

• Decision Date: 20 February 1979
• Citation: 67 A.D.2d 982,413 N.Y.S.2d 431
• Parties: The PEOPLE, etc., Appellant, v. Ernest BOYNTON, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 431

413 N.Y.S.2d 431

67 A.D.2d 982

The PEOPLE, etc., Appellant, v. Ernest BOYNTON, Respondent.

Supreme Court, Appellate Division, Second Department.

Feb. 20, 1979.

John J. Santucci, Dist. Atty., Kew Gardens (Deborah Carlin Stevens, Kew Gardens, of counsel), for appellant.

Pietrina J. Reda, Freeport, for respondent.

Before O'CONNOR, J. P., and GULOTTA, COHALAN and MARGETT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Queens County, dated February 17, 1978, which, upon acceptance of a verdict of guilty as to the third count of the indictment, dismissed the remaining or first count thereof, upon which the jury had failed to agree. (The second count was never submitted to the jury, it having been previously dismissed.)

Order reversed, on the law, the first count of the indictment is reinstated, and the case is remanded to Criminal Term for further proceedings in accordance herewith.

The trial court dismissed the second count of the three-count indictment lodged against this defendant after the close of the evidence and submitted the two remaining counts to the jury for their determination. After due deliberation, the jury returned a guilty verdict on the count alleging that the defendant had endangered the welfare of a child (the third count of the indictment), but reported itself inextricably deadlocked on the charge of rape in the first degree (the first count). At this juncture, the court, sua sponte, dismissed the first count of the indictment stating "Under the circumstances, the Court will accept the verdict of the jury with respect to the Third Count. As I said earlier, I am very frank to tell you that these are 12 good minds, and they gave an awful lot of consideration to this case, and I cannot see myself ordering a trial before another jury and saddle the State with the expense. I want you to know it costs the State a minimum of $25,000 a day."

No other explanation for the dismissal was offered. The People appeal. In our opinion, the order appealed from must be reversed.

The only statute which even colorably authorizes a dismissal such as the one before us is CPL 210.40 (subd. 1), which empowers a court to dismiss an indictment or any count thereof when "such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice." This court has previously held that a dismissal pursuant to CPL 210.40 requires notice to the People and an opportunity for a hearing (People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106), but neither was provided in the instant case. This defect alone would constitute reversible error (People v. Trottie, 47 A.D.2d 751, 364 N.Y.S.2d 563). The record herein is devoid of any facts which even remotely suggest that a retrial would work an injustice upon this defendant. The dismissal of the rape count in the absence of such a showing was clearly improper (cf. People v. Geller, App.Div., 409 N.Y.S.2d 791 (2d Dept., dec. Nov. 13, 1978); People v. Kwok Ming Chan, 45 A.D.2d 613, 360 N.Y.S.2d 425).

Acquittal, like conviction, requires a unanimous verdict in this State, and were the logic of Criminal Term to be applied generally, a "hung" jury would be as beneficial to a defendant as a verdict of not guilty. CPL 310.60 and 310.70 are clearly to the contrary and contemplate a retrial of the defendant under circumstances such as the present. Additionally, if the trial court believed that the evidence adduced by the People was legally insufficient to sustain a conviction, it should have dismissed the remaining count of the indictment on that ground, rather than speculate on the cost-effectiveness of a second trial. For all of these reasons there should be a reversal.

Although not briefed by the parties, there is an additional factor in this case which remains to be considered, as the prospect of a possible retrial of this defendant presents a difficult double jeopardy issue which has yet to be resolved. In fact, had this precise case come before us as recently as one year ago, we would have been compelled to dismiss the appeal on constraint of People v. Brown (40 N.Y.2d, 381, 386 N.Y.S.2d 848, 353 N.E.2d 811, cert. den. 429 U.S. 975, 97 S.Ct. 482, 50 L.Ed.2d 583, mot. for rearg. den. 42 N.Y.2d 1015, 398 N.Y.S.2d 1034, 368 N.E.2d 289, cert. den. 433 U.S. 913, 97 S.Ct. 2986, 53 L.Ed.2d 1099) and People v. O'Neill (59 A.D.2d 540, 397 N.Y.S.2d 408). However, the situation today is different.

In the Brown case (40 N.Y.2d at p. 391, 386 N.Y.S.2d at p. 855, 353 N.E.2d at p. 818, supra ), the Court of Appeals, following the principles set forth in United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 and its companion cases (United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 and Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265), held:

"On the basis of these three cases we conclude that the Supreme Court has formulated a double jeopardy rule albeit what may be characterized as a mechanical rule which precludes the People from taking an appeal from an adverse trial ruling Whenever such appeal if resolved favorably for the People might require the defendant to stand retrial or even if it would then be necessary for the trial court 'to make supplemental findings' (United States v. Jenkins, 420 U.S. 358, 370, (95 S.Ct. 1006, 43 L.Ed.2d 250) Supra ). Double jeopardy principles will bar appeal unless there is available a determination of guilt which without more may be reinstated in the event of a reversal and remand. Application of such rule to the provisions of CPL 450.20 (subd. 2) permitting the People to appeal from a trial order of dismissal renders that section unconstitutional except in the instance where disposition of the motion is reserved until after the jury verdict has been returned." (Emphasis supplied.)

A similar rationale would be applicable to the case at bar.

Since that time, however, the Supreme Court of the United States has had occasion to reconsider its Jenkins decision and has, in fact, explicitly overruled it in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65. Contemporaneously, the Court of Appeals has had occasion in People v. Key, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147 to reassess its prior decision in People v. Brown (supra). If nothing else, these two recent cases, and others, demonstrate that the mechanical test of Jenkins and Brown (supra) is no longer valid and has been replaced by a functional test in which the ultimate decision must rest on whether a second trial will violate any of the defendant's rights protected by the Double Jeopardy Clause. It is this "new" test which we must apply here.

In the course of so doing, it is of the greatest importance to note that the first count of the instant indictment was Not dismissed on the ground that the prosecution's case was legally insufficient, as any dismissal on such a ground would be tantamount to an acquittal and would operate as a bar to any further prosecution (see Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1; Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15). It is well established that the prosecution is only entitled to one opportunity to mount its case against a defendant, and that its failure to do so adequately will not inure to the latter's detriment. "The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding" (Burks v. United States, supra, p. 11, 98 S.Ct., p. 2147).

In the instant case, however, the record reveals that the trial court dismissed the first count of the indictment primarily because it wanted to spare the State the expense of a second trial and (apparently) because it formed the opinion that a second jury would not have been superior to the first in terms of its wisdom or industry. The sufficiency of the prosecution's evidence was thus never mentioned, nor did the court determine the defendant to be innocent of the underlying count. In sum, therefore, there was no dismissal on the ground of legal insufficiency, nor was there any factual determination which was favorable to the defendant. ^*

This much established, the next question to be considered is this: would a second trial impermissibly deprive this defendant of his "valued right to have his trial completed by (the first) * * * tribunal" (see Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974). An affirmative answer cannot be sustained.

The record discloses that the first count of the indictment was dismissed by the court only after the jury had deliberated from 12:40 P.M. on February 17, 1978 until 12:30 A.M. of the next day (with sufficient time for meals) and had reported itself to be hopelessly deadlocked. The jury was then polled by the court and its representation as to the deadlock was confirmed (cf. Matter of Tuite v. Shaw, 49 A.D.2d 737, 372 N.Y.S.2d 219). At this point, the court had before it what has recently been termed "the classic basis for a proper mistrial" (Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717). In fact, had the trial court merely proceeded to declare a mistrial at this juncture, it is doubtful that anyone would have questioned the right of the People to retry this case.

In our view, once Criminal Term properly found the jury to be hopelessly deadlocked, the doctrine of " 'manifest necessity' " required the declaration of a mistrial, whether the Trial Justice knew or appreciated this fact, and whether or not he explicitly so found (see Arizona v. Washington, supra, p. 516, 98 S.Ct. 824). The defendant's right to proceed to a verdict with the first jury terminated at this...