People v. Garofalo

CourtNew York Supreme Court Appellate Division
Writing for the CourtHERLIHY; HERLIHY
Citation71 A.D.2d 782,419 N.Y.S.2d 784
PartiesThe PEOPLE of the State of New York, Appellant, v. Frank S. GAROFALO, Respondent.
Decision Date26 July 1979

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.

Page 785

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,

Page 786

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

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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...

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9 practice notes
  • Kevin B., Matter of
    • United States
    • New York Supreme Court Appellate Division
    • May 7, 1987
    ...fact-finding hearing. While statutory provisions defining the right to appeal must be strictly construed Page 974 (People v. Garofalo, 71 A.D.2d 782, 419 N.Y.S.2d 784; see, Brownstein v. County of Westchester, 51 A.D.2d 792, 380 N.Y.S.2d 62), we find these orders of dismissal to be appealab......
  • People v. Ainsworth
    • United States
    • New York Supreme Court Appellate Division
    • February 9, 1989
    ...324 N.E.2d 351), and is to be strictly construed (People v. Rossi, 5 N.Y.2d 396, 400, 185 N.Y.S.2d 5, 157 N.E.2d 859; People v. Garofalo, 71 A.D.2d 782, 419 N.Y.S.2d 784, app. dism. 49 N.Y.2d 879, 427 N.Y.S.2d 990, 405 N.E.2d 233). The first trial of this case began in June 1983, shortly af......
  • People v. Weaver
    • United States
    • New York Supreme Court — Appellate Division
    • November 21, 1991
    ...part of the order suppressing them is appealable at this juncture of the proceedings (see, CPL 450.20[8]; see also, People v. Garofalo, 71 A.D.2d 782, 419 N.Y.S.2d 784, appeal dismissed 49 N.Y.2d 879, 427 N.Y.S.2d 990, 405 N.E.2d 233). The People's appeal from the suppression order, then, i......
  • In the Matter of Michael C. Green v. Demarco
    • United States
    • New York Supreme Court Appellate Division
    • June 17, 2011
    ...suppression order because it was not entered prior to trial ( see CPL 450.20 [8]; see generally [925 N.Y.S.2d 765] People v. Garofalo, 71 A.D.2d 782, 419 N.Y.S.2d 784, appeal dismissed 49 N.Y.2d 879, 427 N.Y.S.2d 990, 405 N.E.2d 233). Although the “appealability or nonappealability of an is......
  • Request a trial to view additional results
9 cases
  • Kevin B., Matter of
    • United States
    • New York Supreme Court Appellate Division
    • May 7, 1987
    ...fact-finding hearing. While statutory provisions defining the right to appeal must be strictly construed Page 974 (People v. Garofalo, 71 A.D.2d 782, 419 N.Y.S.2d 784; see, Brownstein v. County of Westchester, 51 A.D.2d 792, 380 N.Y.S.2d 62), we find these orders of dismissal to be appealab......
  • People v. Ainsworth
    • United States
    • New York Supreme Court Appellate Division
    • February 9, 1989
    ...324 N.E.2d 351), and is to be strictly construed (People v. Rossi, 5 N.Y.2d 396, 400, 185 N.Y.S.2d 5, 157 N.E.2d 859; People v. Garofalo, 71 A.D.2d 782, 419 N.Y.S.2d 784, app. dism. 49 N.Y.2d 879, 427 N.Y.S.2d 990, 405 N.E.2d 233). The first trial of this case began in June 1983, shortly af......
  • People v. Weaver
    • United States
    • New York Supreme Court — Appellate Division
    • November 21, 1991
    ...part of the order suppressing them is appealable at this juncture of the proceedings (see, CPL 450.20[8]; see also, People v. Garofalo, 71 A.D.2d 782, 419 N.Y.S.2d 784, appeal dismissed 49 N.Y.2d 879, 427 N.Y.S.2d 990, 405 N.E.2d 233). The People's appeal from the suppression order, then, i......
  • In the Matter of Michael C. Green v. Demarco
    • United States
    • New York Supreme Court Appellate Division
    • June 17, 2011
    ...suppression order because it was not entered prior to trial ( see CPL 450.20 [8]; see generally [925 N.Y.S.2d 765] People v. Garofalo, 71 A.D.2d 782, 419 N.Y.S.2d 784, appeal dismissed 49 N.Y.2d 879, 427 N.Y.S.2d 990, 405 N.E.2d 233). Although the “appealability or nonappealability of an is......
  • Request a trial to view additional results

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