People v. Gentile

• Decision Date: 29 August 1983
• Parties: The PEOPLE, etc., Appellant, v. Steven GENTILE and William Rydstrom, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 405

466 N.Y.S.2d 405

96 A.D.2d 950

The PEOPLE, etc., Appellant, v. Steven GENTILE and William Rydstrom, Respondents.

Supreme Court, Appellate Division Second Department.

Aug. 29, 1983.

Patrick Henry, Dist. Atty., Riverhead (Frederick Eisenbud, Asst. Dist. Atty., Riverhead, of counsel), for appellant.

Clive D. Lerner, Central Islip, for respondent Steven Gentile.

Before MOLLEN, P.J., and TITONE, BRACKEN 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 prosecution.

Order reversed, on the law, motions denied, indictment reinstated, and matter remitted to the County Court, Suffolk County, for further proceedings consistent herewith.

On November 27, 1981, defendants were indicted for robbery in the second degree (two counts) and assault in the second degree (three counts) as a result of an altercation with several off-duty police officers. Jury selection commenced on May 10, 1982 and was completed on May 12, 1982, at which time a jury of 12 jurors and two alternates was sworn. On May 13, 1982, prior to the delivery of opening statements, counsel for both defendants requested an in camera conference with the Trial Judge. Although their request was granted, there is no stenographic record of what actually transpired during this meeting. The fact that the prosecutor was excluded from the meeting is of particular significance to this appeal.

During this conference, the court was apparently informed that one of the defense attorneys had that day received the wallet which was the subject of the robbery indictment, and wished to surrender it to the court. Shortly thereafter, the prosecutor was permitted to join the conference, and was informed of what had transpired in his absence. He immediately objected to the "irregular" procedure and allegedly informed both the trial court and defense attorneys that they had become witnesses in the People's case. After hearing the opening statements, and the testimony of two of the People's witnesses, the court adjourned the trial until the following Monday, May 17, 1982.

When the trial resumed on May 17, defense counsel completed cross-examination of the People's second witness, Police Officer Michael Rogers. After the testimony of the People's third witness, Detective Robert Sisino, was heard, the prosecutor called the Trial Judge (MALLON, J.), as a witness. Recognizing that a sitting judge may not be a witness at a trial over which he is presiding (see People v. Dohring, 59 N.Y. 374), the trial court called a recess and adjourned to chambers, with all counsel present, for an offer of proof. At that time, the prosecutor recounted how he had been excluded from the prior conference, and explained that the Trial Judge's testimony had become necessary to enable the People to establish the manner by which they came into possession of the subject piece of evidence. After considering the matter overnight, the court ordered a mistrial over defense counsel's objection.

The case was subsequently transferred to Acting County Court Judge JOHN V. AYLWARD for retrial. Defendants each filed a notice of motion dated May 25, 1982, seeking dismissal of the indictment pursuant to CPL 210.20, which bars retrial on the basis of a prior prosecution.

By a decision and order dated June 17, 1982, the court (AYLWARD, J.), granted the motions to dismiss, concluding that the People had failed to establish "manifest necessity" for the mistrial, and that Judge MALLON had failed to consider the available alternatives to a mistrial. That determination was erroneous.

In People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134, the court, in reviewing the propriety of conducting a retrial where a mistrial had been granted over the defendant's objection, stated in pertinent part:

"Where a court declares a mistrial without obtaining the defendant's consent the double jeopardy provisions of both our State Constitution and the Federal Constitution prohibit retrial for the same crime unless 'there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated' (United States v. Perez, 9 Wheat [22 US] 579, 580 ; accord Matter of Nolan v. Court of Gen. Sessions of County of N.Y., 11 NY2d 114, 119, [227 N.Y.S.2d 1, 181 N.E.2d 751] supra ). These principles have to some extent been codified in CPL 280.10 (subd 3), which allows a court to declare a mistrial on its own motion only 'when it is physically impossible to proceed with the trial in conformity with law'. Since the Trial Judge is in the best position to determine whether a mistrial is in fact necessary in a particular case, that court is entrusted with discretion in this area, and deference is to be accorded the Trial Judge's decision to declare a mistrial (Matter of Napoli v. Supreme Ct. of State of N.Y., 33 NY2d 980, [353 N.Y.S.2d 740, 309 N.E.2d 137] affg on opn below 40 AD2d 159 ; Arizona v. Washington, 434 U.S. 497, 513-514 [98 S.Ct. 824, 834-35, 54 L.Ed.2d 717]; Gori v. United States, 367 US 364 [81 S.Ct. 1523, 6 L.Ed.2d 901] )."

(See, also, Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 464 N.Y.S.2d 418, 451 N.E.2d 176 [1983]; Hall v. Potoker, 49 N.Y.2d 501, 427 N.Y.S.2d 211, 403 N.E.2d 1210.)

In evaluating whether there was a "manifest necessity" for a mistrial, the word "necessity" is not to be interpreted literally; all that is required is a "high degree" of necessity before concluding that a mistrial is appropriate (Arizona v. Washington, 434 U.S. 497, 506, 98 S.Ct. 824, 830, 54 L.Ed.2d 717). As was noted in People v. Mallette, 59 A.D.2d 199, 202, 399 N.Y.S.2d 63:

"[I]n order to avoid the preclusion of double jeopardy where the People request a mistrial after having commenced testimony, the reason for the mistrial must be 'a necessitous one, actual and substantial' (Matter of Nolan v. Court of Gen. Sessions of County of N.Y., 11 NY2d 114, 118 [227 N.Y.S.2d 1, 181 N.E.2d 751] )."

This determination will by its nature, vary with the circumstances under which the mistrial was granted (Arizona v. Washington, supra...