People v. Davis

• Decision Date: 23 September 1974
• Parties: The PEOPLE of the State of New York v. Clarence DAVIS, Defendant.
• Court: New York Supreme Court

Page 637

359 N.Y.S.2d 637

79 Misc.2d 137

The PEOPLE of the State of New York v. Clarence DAVIS, Defendant.

Supreme Court, Niagara County.

Sept. 23, 1974.

Robert A. Rotundo, Niagara Falls, for Clarence Davis.

Aldo DiFlorio, Dist. Atty., for Niagara County, Lockport by John Mariano, Asst. Dist. Atty., for the People.

MEMORANDUM

SEBASTIAN J. BELLOMO, Justice.

The Defendant, Clarence Davis, was indicted by a Niagara County Grand Jury for criminal sale of a dangerous drug in the Third Degree in violation of former Section 220.35 of the Penal Law of the State of New York, committed on or about the 17th day of July, 1973. The Defendant was arraigned on the 6th day of August, 1973 and pled not guilty. Trial was held in County Court Part I, before the Honorable Charles Hannigan, Niagara County Judge, on the 4th day of March, 1974. At the time, the District Attorney called the matter ready for trial and a complete jury was impaneled and sworn. On the 6th day of March, 1974, the District Attorney requested a continuance of the trial until Wednesday, the 13th day of March, 1974. The Court granted said request. Again, on the 13th day of March, 1974, the Court granted a further continuance to the 18th day of March, 1974. At all times, the Defendant and his attorney were ready to proceed with the trial. On the 18th day of March, 1974, the Court convened; the Defendant, the Jury and all Counsel were present; a request was made by the District Attorney for a mistrial due to the fact that the principal witness had had his life threatened and attempts had been made on his life; and that the witness, at that time, could not be located. Judge Charles Hannigan granted a mistrial and the previously selected and sworn jury was discharged and dismissed.

The matter is now before this Court on a motion of the Defendant, Clarence Davis, to dismiss Indictment No. 4394--F pursuant to Section 210.20 of the C.P.L. upon the ground that the prosecution is barred by reason of a prior prosecution and by the concept of double jeopardy as contained in the United States Constitution, Fifth Amendment; New York State Constitution, Article I, Section 6, and the C.P.L., Section 40.20.

The facts of the present case are not in dispute. The sole question before this Court is whether the continued prosecution of this Indictment places the Defendant in jeopardy.

Until adoption of C.P.L., Section 40.30(1)(b), the traditional double jeopardy rule in New York State had been that 'the jury has been examined and sworn, and evidence given. . . .', Mtr. of Bland v. Supreme Court, New York, 20 N.Y.2d 552, 554, 285 N.Y.S.2d 597, 598, 232 N.E.2d 633, 634 (1967). The Criminal Procedure Law purportedly modifies this position and shortens the point at which jeopardy attaches to the swearing of a witness. See C.P.L., Section 40.30(1)(b).

Actually, in spite of C.P.L., Section 40.30(1)(b), the present rule is now the federal rule as enunciated in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) which held that jeopardy attaches with the impaneling and swearing of the jury. Under the federal rule, no witness need be called. The Downum double jeopardy rule has been grafted on the body of New York Law by the thrust of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), which made the Fifth Amendment directly applicable to the states.

The present case is clearly within the standard set forth in Downum v. United States, (supra). Furthermore, C.P.L., Section 40.30(1)(b), on the 19th day of March, 1974, was amended by the legislators (L.1974, ch. 80) to comply with the rule of Downum. So, therefore, a person 'is prosecuted' for an offense, within the meaning of C.P.L., Section 40.20 when he is charged therewith by an accusatory Instrument filed in a...