People v. Dodge
Decision Date | 20 November 1969 |
Parties | The PEOPLE of the State of New York, Plaintiff v. William L. DODGE, Defendant. |
Court | New York County Court |
This motion is brought by the defendant to dismiss the information pending against him on the grounds of double jeopardy.
The defendant was arraigned on a charge of possessing a dangerous drug in contravention of Section 220.05 of the Penal Law. A jury was demanded and the matter eventually came to trial on April 9, 1969. On the latter date a jury was empaneled and sworn and openings to the jury were made by both counsel. Witnesses were excluded from the courtroom during the voir dire and the openings. The District Attorney then called his first witness, and as appears from the trial transcript the following occurred:
'DIRECT-EXAMINATION BY MR. ROBBINS:
Q What is your name and badge number?
A Ptl. Ronald Dillon, Shield #1270, Eighth Precinct, Nassau County Police Department.
(Whereupon, there was a discussion at the bench.)
THE COURT: The first five jurors are excused. Will you kindly take the first five jurors to the jury room?
(Whereupon, the first five jurors were excused.)
It will be noted that defendant's counsel requested to approach the bench and it was during this discussion that the Court learned that the witness was at one time employed at the same Post Office and that he recalled Juror No. 6 as an employee of the Post Office, which fact prompted the Court to inquire of Juror No. 6 if he remembered Ptl. Dillon working for the Post Office Department. To which inquiry Juror No. 6 responded:
It will further be noted that defense counsel after the Court excused Juror No. 6 for Cause, stated, 'Thank you, Your Honor.'
The gravamen of defendant's motion is that double jeopardy attached once the witness was sworn and some evidence was taken. This contention is well established through case law. People v. Jackson, 20 N.Y.2d 440, 285 N.Y.S.2d 8, 231 N.E.2d 722, cert. denied 391 U.S. 928, 88 S.Ct. 1815, 20 L.Ed.2d 668; People on Complaint of Forastiere v. Clark, 3 A.D.2d 700, 159 N.Y.S.2d 66; Bland v. Supreme Court, New York County, 20 N.Y.2d 552, 285 N.Y.S.2d 597, 232 N.E.2d 633. The Court is thus presented with two issues. First, does the giving of his name and badge number by a witness constitute the giving of some evidence? Second, was the mistrial improperly granted? If the mistrial was properly granted then there is no bar to a subsequent prosecution on the same charge consistent with the defendant's constitutional rights. Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901; Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968.
This Court is of the opinion that the acquaintanceship between the juror and the witness was grounds for a mistrial. The trial judge is in the best position to exercise his discretion and to intelligently determine where the needs of substantial justice require the declaring of a mistrial. The exercise of that discretion has been favored and upheld. Gori v. United States, supra; United States v. Cimino, 2 Civ., 224 F.2d 274. It is significant that a conference took place involving defense counsel and that after further questioning and the granting of the mistrial defense counsel thanked the Court.
The Court is mindful, though hesitant to take...
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