People v. Gentile
| Decision Date | 17 June 1982 |
| Citation | 452 N.Y.S.2d 507,114 Misc.2d 610 |
| Parties | The PEOPLE of the State of New York v. Steven GENTILE and William Rydstrom, Defendants. |
| Court | New York County Court |
Patrick Henry, Dist. Atty. of Suffolk County by Timothy Mazzei, Asst. Dist. Atty., for the People.
Clive Lerner, Central Islip, for defendant Gentile.
Eric Naiburg, for defendant Rydstrom.
Defendants move pursuant to CPL § 210.20(1)(e), to dismiss the indictment against each defendant upon the grounds of a previous prosecution, after the trial judge, sua sponte and over the objection of the defendants, declared a mistrial when the Assistant District Attorney, after the trial had commenced, insisted that he would call the trial judge to testify at the jury trial over which he was the sole presiding judge.
The decision of this motion involves the competing values of not subjecting a defendant to defend himself twice on the same issue, as against a dubious possibility that there might develop a conflict with the historic concept that a judge should not be a witness in a trial over which he is presiding, and thereby demean the appearance of justice (People v. Dohring, 59 N.Y. 374).
A subordinate issue is whether or not this court has the authority to pass upon matters already determined by a judge of coordinate jurisdiction. See the dissent in People v. Petgen, 55 N.Y.2d 529, 450 N.Y.S.2d 299, 435 N.E.2d 669, 1982. This motion to dismiss because of a previous prosecution was made subsequent to the trial judge's sua sponte declaration of a mistrial and therefor could not have been made before the original trial judge. This motion is a de novo motion and the defendants are entitled to a decision thereon from this court.
The nature of the motion is such that as a matter of necessity, and not of choice, a review of the prior trial activities must be made. This court should not and will not shirk its duty to decide. It will decide this motion as made by the defendants as a matter of their right and it will also be entertained by this court as a matter of discretion in the interests of justice [ (CPL § 210.20(3) ].
Defendants were indicted and being tried for robbery in the second degree and assault in the second degree, allegedly arising out of an incident which occurred on July 28, 1981 at a diner. Defendants, patrons in the diner and after having imbibed some alcohol, became engaged in a mutual brawl with four off-duty police officers and a civilian who were also patrons in that diner. During the brawl, it is alleged that certain personal property was taken from the police officers, including a police badge, a wallet, police identification, a St. Christopher's medal and perhaps some currency.
Defendants' trial commenced on May 10, 1982 with the selection of the jury. On May 13, 1982, prior to the opening statements, both defense counsel entered the Judge's chambers, requested that the Assistant District Attorney be excluded from the anticipated conference, and he was so excluded. Defense counsel laid upon the Judge's desk, a police badge, a wallet, identification and a St. Christopher's medal. The Judge, without touching the objects, immediately summoned the Assistant District Attorney into his chambers and turned the property over to him. Defense counsel, claiming the privilege of the attorney-client relationship, did not disclose how the evidence came into their possession, other than to say that they received it that same morning.
Opening statements were made and the trial continued with the taking of testimony. Then on May 18, 1982, the Assistant District Attorney called upon the Judge to take the witness stand. An offer of proof by the defendants was placed upon the record in the absence of the jury as to the events of May 13, 1982 concerning the surrender of the property in the Judge's chambers. On May 19, 1982, the Assistant District Attorney persisted in calling the Trial Judge to the witness stand. The Trial Judge then declared a mistrial, sua sponte, over the objections of the defendants who wanted to continue with the trial, and who claimed that the Judge was not competent to testify at the trial over which he was presiding.
This court does not find any prosecutorial misconduct with the intent to provoke a mistrial, nor is there any misconduct on the part of defense counsel, nor is there any judicial misconduct.
When a mistrial has been declared over defendant's objection in a criminal action, the double jeopardy clauses of our State and Federal Constitutions have traditionally limited the instances in which such a...
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Gentile v. County of Suffolk
...In 1982, the state trial court dismissed the indictments because retrial was barred by the Double Jeopardy Clause. People v. Gentile, 114 Misc.2d 610, 452 N.Y.S.2d 507 (Suffolk Co.Ct.1982). More than a year later, the Appellate Division, Second Department, reversed this ruling and reinstate......
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People v. Gentile
...and BROWN, JJ. MEMORANDUM BY THE COURT. Appeal by the People from an order of the County Court, Suffolk County, dated June 17, 1982, 114 Misc.2d 610, 452 N.Y.S.2d 507, which granted the defendants' motions to dismiss their indictment on the ground that their retrial was barred by a prior Or......