People v. Kirby

• Decision Date: 31 March 1983
• Citation: 460 N.Y.S.2d 572,92 A.D.2d 848
• Parties: The PEOPLE of the State of New York, Appellant, v. Timothy KIRBY and Freddie Franklin, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 572

460 N.Y.S.2d 572

92 A.D.2d 848

The PEOPLE of the State of New York, Appellant, v. Timothy KIRBY and Freddie Franklin, Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

March 31, 1983.

N. Barclay, New York City, for appellant.

I. Perl, New York City, for defendants-respondents.

Before MURPHY, P.J., and ROSS, CARRO, ASCH and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order entered February 2, 1982 in Supre Court, New York County, granting defendants' motion and dismissing the indictment charging the defendants with murder in the second degree, attempted murder in the second degree and assault in the first degree, unanimously reversed, on the law and the facts, the motion denied, and the indictment reinstated, 112 Misc.2d 906, 447 N.Y.S.2d 606.

On January 12, 1979 a gypsy cab driver was murdered. Timothy Kirby was arrested and tried in March of 1980 on a January 1979 indictment charging the above crimes. That trial resulted in a mistrial because the jurors could not agree upon a verdict. In July of 1980 Freddie Franklin was arrested on an unrelated charge and on October 31, 1980 a New York County Grand Jury returned a superceding indictment accusing both men of these crimes.

The jurors in the first trial retired to deliberate on March 25, 1980 and the following day a mistrial was declared--with the consent of the defense--because the jury was hopelessly deadlocked. With the court's permission the attorneys questioned and learned from the jurors that they had stood ten-to-two for conviction.

A second trial of both defendants began on February 26, 1981, and on March 29th another mistrial was declared, on consent of the defense, this jury also being unable to agree upon a verdict. This time the jurors were split eight-to-three for acquittal of Franklin, and six-six in the case of Kirby.

A third trial on the indictment (second for Franklin) began in October of 1981, but this, too, ended in a jury deadlock and a mistrial, on November 13, 1981. The jurors on this panel stated that they had been ten-to-two in favor of convicting both men.

A month later the defendants moved in Criminal Term, Part 50, to dismiss the indictment on the grounds that continued prosecution would subject them to double jeopardy, would constitute cruel and unusual punishment and would not be in the interests of justice. (U.S. Const., Amendments V, VII, XIV; CPL 210.40). The court, after a creative and well-reasoned discussion of the law, granted the motion (112 Misc.2d 906, 447 N.Y.S.2d 606).

We fully agree with the judge below that the constitutional claims raised are without merit, 112 Misc.2d at 907-909, 447 N.Y.S.2d 606. And we do not hold, as the people would have us hold, that the lower court was without discretion beyond that provided for in CPL 210.40. Although the court below, finding no contrary authority, adopted the reasoning of the Supreme Court of Tennessee, in State v. Witt (572 S.W.2d 913), we believe it to be fundamental that a trial court has "inherent authority to terminate a prosecution in the exercise of a sound judicial discretion." (572 S.W.2d at 917; 112 Misc.2d at 912, 447 N.Y.S.2d 606). The source of this discretion is found not only in the ultimate responsibility of the court to assure the integrity of its judgment within its jurisdiction, but more simply, it is traceable to the principle of the separation of powers, upon which our government is based. While such discretion is easily recognized when the issues assume constitutional dimension, Commissioner v. Roberto G., 72 A.D.2d 9, 423 N.Y.S.2d 155, it is in reality a residual continuum extending even to the most mundane....