People v. Garofalo

• Decision Date: 26 July 1979
• Citation: 71 A.D.2d 782,419 N.Y.S.2d 784
• Parties: The PEOPLE of the State of New York, Appellant, v. Frank S. GAROFALO, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 784

419 N.Y.S.2d 784

71 A.D.2d 782

The PEOPLE of the State of New York, Appellant, v. Frank S. GAROFALO, Respondent.

Supreme Court, Appellate Division, Third Department.

July 26, 1979.

Daniel T. Smith, Warren County Dist. Atty., Lake George, for appellant.

McPhillips, Fitzgerald, Meyer & McLenithan, Glens Falls (Joseph R. Brennan, Glens Falls, of counsel), for respondent.

Before MAHONEY, P. J., and SWEENEY, KANE, STALEY and HERLIHY, JJ.

MEMORANDUM DECISION

Appeal from an order of the County Court of Warren County, entered January 31, 1979, which granted a motion by defendant to suppress evidence.

Defendant was indicted for grand larceny in the second degree in connection with a scheme to defraud a customer of defendant's produce company by paying off the customer's employee to induce him to accept and approve produce shipments which were less than the billing invoices and orders reflected. As the larceny became apparent, the customer's employee, one William Herbaly, was questioned by a Sheriff's deputy who obtained from Herbaly inculpatory admissions. At the request of this officer, Herbaly agreed to conceal a tape recorder on his person and engage defendant in conversation concerning their joint enterprise. A recorder was provided, and Herbaly, unaccompanied by any police observers, met defendant on October 31, 1977 and made a recording. Three days later the tape was turned over to Deputy Crannell.

On October 25, 1978, defendant was indicted for grand larceny in the second degree, and he was arraigned on October 30, 1978, at which time he entered a plea of not guilty, and was released on bail. On December 14, 1978, defendant made an omnibus motion relative to the indictment returnable on January 2, 1979, which included the motion to suppress the tape recording, and, on January 12, 1979, the trial court granted the motion to the extent that the court would hold a hearing thereon prior to or at trial.

On January 30, 1979, the trial of the indictment was commenced, and a jury was impaneled. After the jury had been impaneled, the court held a hearing to determine whether the tape recording was admissible in evidence, or whether it should be suppressed. On January 31, 1979, at the opening of court, the trial court ordered the suppression of the tape recording.

The District Attorney stated his intent to appeal the decision pursuant to CPL 450.20 and moved that the court declare a mistrial, excuse the jury and adjourn the proceedings pending an appeal. Defendant's attorney refused to consent to an adjournment, and stated his readiness to proceed to trial. Despite defendant's position, the court declared a mistrial and dismissed the jury.

Defendant now contends that the order granting the motion for suppression is not appealable. The People base the appeal on the provisions of subdivision 8 of section 450.20 of the Criminal Procedure Law. That subdivision authorizes an appeal by the People from an order suppressing evidence entered before trial. A jury trial commences with the selection of the jury (CPL 1.20, subd. 11). Here, a full jury was impaneled and sworn prior to the suppression hearing.

The right of the People to appeal in a criminal case is found only in statutes, which are to be strictly construed (Matter of State of New York v. King, 36 N.Y.2d 59, 63, 364 N.Y.S.2d 879, 882, 324 N.E.2d 351, 354; People v. Rossi, 5 N.Y.2d 396, 400, 185 N.Y.S.2d 5, 7, 157 N.E.2d 859, 861). No such jurisdiction can be found under CPL 450.20 (subd. 8), since the order suppressing the evidence was made after the jury was sworn, and, therefore, after the pre-trial stage of the proceedings. Defendant did not wait until the jury was sworn and then spring a suppression motion, thus forcing a post impanelment hearing. The motion to suppress was made December 14, 1978, and the court indicated on January 12, 1979 that the hearing would be held at or before trial, but, instead, the hearing was held after the trial had commenced, on January 30, 1979.

Defendant further contends that, if the People are not precluded from appealing the order of suppression pursuant to CPL 450.20, under the circumstances here, a retrial of the defendant on the same indictment would subject him to double jeopardy. Not every declaration of a mistrial prevents a retrial, but only in certain exceptional circumstances does the trial court have discretionary power to discharge a jury, and put the defendant to a new trial. A reason justifying the ordering of a mistrial in a criminal case must be "a necessitous one, actual and substantial" (Matter of Nolan v. Court of Gen. Sessions of County of N.Y., 11 N.Y.2d 114, 118, 227 N.Y.S.2d 1, 4, 181 N.E.2d 751, 753).

(I)t is the well settled rule that where a person is arraigned on a criminal charge, and required to go to trial before a court of competent jurisdiction, unless the trial is terminated by the disagreement of the jury, or their discharge pursuant to law, or by the consent of the accused, or through extreme or absolute necessity, as by illness or death, he has been put in jeopardy, and cannot be prosecuted again in the same or another court on the same charge; and the discontinuance of the prosecution is equivalent to a discharge, for the constitutional protection grants the defendant immunity against a second trial. (People v. Golfarb, 152 App.Div. 870, 874, 138 N.Y.S. 62, 65, affd. 213 N.Y. 664, 107 N.E. 1083).

The reasons for a mistrial stated by the District Attorney do not constitute "necessitous ones, actual and substantial". No condition existed which rendered it physically impossible to proceed with the trial. The fact that certain evidence is ordered suppressed because it was obtained in violation of the defendant's constitutional rights is not such a situation to make it impossible to proceed with the trial.

Defendant was in jeopardy and, since the trial was not ended for reason of "manifest necessity" (Matter of Cardin v. Sedita, 53 A.D.2d 253, 385 N.Y.S.2d 667), the People are precluded from taking an appeal from an adverse trial ruling where such appeal, if resolved favorably for the People, might require the defendant to stand retrial (People v. Brown, 40 N.Y.2d 381, 386 N.Y.S.2d 848, 353 N.E.2d 811, cert. den. 433 U.S. 913, 97 S.Ct. 2986, 53 L.Ed.2d 1099).

In any case where a mistrial is declared without the consent of the defendant, he is necessarily "deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal" (United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543). That option attains special importance in such a case as this, where the defendant believed that the jury, for reasons untainted by bias, corruption or chicanery, was "favorably disposed to his fate" (United States v. Jorn, supra, at p. 486, 91 S.Ct. 547). In these circumstances, we are constrained to conclude that the court improvidently exercised its discretion when it declared a mistrial over the defendant's objection. On this record we find no manifest necessity nor any consideration of public justice sufficient to override this defendant's "valued right", which he so diligently strove to assert, "to have his trial completed by a particular tribunal" (Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974). The double jeopardy prohibition therefore shields this defendant from a second prosecution for the crime that was the subject of the aborted first trial. (Matter of Cardin v. Sedita, 53 A.D.2d 253, 259, 385 N.Y.S.2d 667, 671-72.)

We conclude that the order granting the motion is not appealable under CPL 450.20 and that if such order was reversed and a new trial ordered, defendant would be subjected to double jeopardy.

Appeal dismissed.

MAHONEY, P. J., and SWEENEY, KANE and STALEY, JJ., concur.

HERLIHY, J., dissents and votes to reverse in the following memorandum.

HERLIHY, Justice (dissenting).

The motion to suppress was made by the defendant and the statute provides that a trial "may not be commenced until determination of the motion" (CPL 710.40, subd. 3). The court was in legal error in failing to follow the statute. If the court had found in favor of the People and the defendant had thereafter been convicted, he would have a right to appeal the court's ruling. If the motion had been decided prior to the trial and against the People, there would have been a right to appeal. Thus, the failure of the defendant to insist upon a hearing prior to the opening of the trial and the failure of the court to follow the statute were legal errors and seriously prejudiced the rights of the People and, under such circumstances, the defendant should not now be allowed to hide behind "double jeopardy". This is particularly so when the determination of the motion in favor of the defendant was error (see People v. Rosenfeld, 15 A.D.2d 459, 460, 221 N.Y.S.2d 740, 742, revd. on other grounds 11 N.Y.2d 290, 229 N.Y.S.2d 360, 183 N.E.2d 656).

It is well settled law that a party to a conversation has no constitutional complaint if he is surreptitiously overheard or recorded, so long as another party to the conversation, who may well be a police officer, has consented to the invasion (see, e. g., Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462; People v. Gibson, 23 N.Y.2d 618, 619, 298 N.Y.S.2d 496, 497, 246 N.E.2d 349, 350, cert. den. 402 U.S. 951, 91 S.Ct. 1628, 29 L.Ed.2d 121; People v. Goldfeld, 60 A.D.2d 1, 9, 400 N.Y.S.2d 229, 234; People v. Phillips (Julius), 55 A.D.2d 661, 390 N.Y.S.2d 6).

What has happened in this case was foreseen in the concurring opinion of former Chief Judge Breitel in People v. Ganci, 27 N.Y.2d 418, 430, 318 N.Y.2d 484, 493, 267 N.E.2d 263, 270, cert. den. 402 U.S. 924, 91 S.Ct. 1398, 28 L.Ed.2d 663.

The defendant here, who has the ultimate burden to show that evidence should be suppressed (People v. Baldwin, 25 N.Y.2d 66, 70, 302 N.Y.S.2d 571, 573, 250 N.E.2d 62, 63), can...