People v. Cuvilje
| Citation | 380 N.Y.S.2d 872,85 Misc.2d 628 |
| Parties | The PEOPLE of the State of New York v. William CUVILJE, Defendant. |
| Decision Date | 21 January 1976 |
| Court | United States State Supreme Court (New York) |
James L. R. Costello, New York City, for defendant.
Mario Merola, Dist. Atty., New York City (Philip G. Schnelwar, New York City, of counsel), for plaintiff.
Immediately before commencement of jury selection in a new trial upon the ten count indictment in this criminal action, after an earlier declaration of a mistrial arising from the first jury's failure to reach a verdict, defendant made an oral application to prohibit the People from reprosecuting him under the indictment's fifth and eighth counts, which the first trial court (Joseph P. Sullivan, J.) declined to submit to the jury, and under the ninth and tenth counts, which that court dismissed at the close of the People's case upon the basis of legally insufficient trial evidence. Claiming that a retrial under these four counts would result in his being twice put in jeopardy for the same offenses, defendant asserted that §§ 280.20 and 310.60 of the Criminal Procedure Law, insofar as they purport to prescribe that a mistrial, brought about by jury deadlock or otherwise, has the effect of reviving dismissed counts for the purpose of further trial, do violence to the Double Jeopardy Clause of the Fifth Amendment of the Federal Constitution.
In essence, the application presents questions of (1) whether the dismissal of a count of an indictment for want of legally sufficient trial evidence amounts to an acquittal which bars subsequent prosecution of the dismissed count upon retrial of the indictment after a jury hangs as to other counts submitted, and (2) whether the mere refusal of a trial court to submit to a jury has the same effect as outright dismissal where reprosecution is concerned.
Following argument, this court answered the first question in the affirmative and the second in the negative, and thus granted the application to the extent of prohibiting the People from retrying defendant upon the ninth and tenth counts. The balance of relief, involving the previously unsubmitted fifth and eighth counts, was denied. To the degree that they stood in the way of a successful plea of the defense of former jeopardy under the circumstances, sections 280.20 and 310.60 of the Criminal Procedure Law were striken down on constitutional grounds.
This disposition was made summarily from the bench with the understanding and consent of counsel that this formal opinion and order would follow. The court was not unmindful that the challenge to the constitutionality of State statutes raised by defendant dictated that the Attorney General of New York be given notice and an opportunity to intervene and defend under the provisions of § 71 of the Executive Law (See People v. Darson, 48 A.D.2d 931, 369 N.Y.S.2d 530). Nevertheless, the age and stage of the case and the need to move an overcrowded trial calendar were factors which led to dispensing with compliance with this requirement.
On the basis of acts said to have been committed on June 21, 1974, defendant was indicted on several charges ranging from attempted murder of a police officer performing his official duties to assault in the first and second degrees, robbery in the first degree, burglary in the first degree, grand larceny in the third degree and criminal possession of a weapon.
Trial of the cause to a court and jury was begun during the month of June, 1974. At the close of the State's case and on July 9, 1975, Mr. Justice Sullivan, acting upon a defense motion for a trial order throwing out all counts, dismissed the robbery charges, specified in the ninth and tenth counts of the indictment, for lack of sufficient proof to sustain them. What is more, an examination of the trial minutes discloses that, at that time, the prosecutor conceded the shortcomings of the People's case in this regard. After both sides had rested, the trial judge refused to give one of the first degree assault charges and one of the burglary first charges, set forth in the fifth and eighth counts respectively, to the jury. The jury failed to agree upon a verdict as to any of the six remaining counts after three days of deliberations, the case was mistrialed, the jurors were discharged and a new trial was ordered.
The case was reached for retrial in this part earlier this month and the double jeopardy questions were raised for the first time.
These questions draw into focus the two sections of the Criminal Procedure Law previously mentioned. Further, they call for a reexamination of the meaning and consequences of the remedy now known as a Trial order of dismissal as well as a close look at a related area of the same chapter, namely, the section authorizing appellate review of such an order. The examination must be made from the standpoint of the relationship between the concept of double jeopardy and the subject matter of the statutory sections.
The catchline of § 280.20 of the Criminal Procedure Law is 'Motion for mistrial; status of indictment upon new trial'.
The body of the section states that '(u)pon 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.' (Emphasis supplied.)
Section 310.60 of the same act bears the catchline 'Discharge of jury before rendition of verdict and effect thereof'.
Subdivision 2 of this section, pertinent here, provides that when a deliberating jury is discharged after deadlock and mistrial, (Emphasis supplied.)
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People v. Alvarez
...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. ......
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People v. O'Neill
..."authorized" the retrial of the dismissed second count, that statute is unconstitutional (see People v. Brown, supra; People v. Cuvilje, 85 Misc.2d 628, 380 N.Y.S.2d 872; People v. Smith, 81 Misc.2d 926, 365 N.Y.S.2d Not only was the retrial of the second count unconstitutional, such retria......