People v. Lawton

• Decision Date: 12 March 1985
• Citation: 487 N.Y.S.2d 273,127 Misc.2d 800
• Parties: The PEOPLE of the State of New York v. Ronnie LAWTON, Defendant.
• Court: New York Supreme Court

Page 273

487 N.Y.S.2d 273

127 Misc.2d 800

The PEOPLE of the State of New York v. Ronnie LAWTON, Defendant.

Supreme Court, Criminal Term Kings County, Part 15.

March 12, 1985.

John C. Corbett, Brooklyn, for defendant.

Elizabeth Holtzman, Dist. Atty., and John Tasolides, Asst. Dist. Atty., Brooklyn, of counsel, for the People.

OPINION OF THE COURT

A. FREDERICK MEYERSON, Justice.

This motion brought by the defendant to dismiss the above-captioned indictment is predicated on the contention that to try the defendant would subject him to double jeopardy.

The chronology of this case insofar as it is relevant to this motion, began on January 29, 1985, when the People answered ready for trial in Complex H, and the matter was sent to this part for trial. A Huntley hearing was conducted and a decision pursuant thereto was rendered by this Court on January 29, 1985, and the voir dire began the following day, January 30.

On January 30, prior to the commencement of jury selection, the Assistant District Attorney informed defense counsel and this Court at a bench conference, for the first time, that he was encountering difficulty in obtaining the presence of his witnesses. An agreement was reached by both attorneys and this Court, that if the problem persisted, the jury would not be sworn as a jury once selection was completed, but that selection would continue in the meantime. After defense counsel made defendant aware of the nature of this bench conference, this agreement was placed on the record. Neither defense counsel nor defendant raised an objection thereto.

Jury selection then commenced. The first two groups of 4 jurors each were sworn in on January 31. The following day, one juror was sworn in. Following that, a group consisting of three was sworn in, after which the clerk swore in two alternates. The case was adjourned to the following day without the jury being sworn in.

On the following day, a Friday, the court advised the still unsworn jury that the case had to be put over until the following Monday. After the jury was excused, in the presence of both attorneys and the defendant, the Court stated on the record that if the District Attorney was unable to procure his witnesses by Monday, the jury would be dismissed and the case would be returned to the complex.

On February 4, the individuals chosen as jurors were discharged without ever having been sworn en masse. The case was sent to the Administrative Judge, who sent it to another part for jury selection. Defendant, with counsel, appeared at that part and announced readiness to proceed to trial and jury selection. The People, however, stated that due to the unavailability of their main witness, they would be unable to do so at that time. Their request for an adjournment was granted, whereupon defendant raised this claim for the first time.

The principles of double jeopardy are codified in Article 40 of the Criminal Procedure Law. A person may not be twice prosecuted for the same offense. CPL Sec. 40.20. So far as is relevant to the facts herein, CPL Sec. 40.30(1)(b) provides that a person is prosecuted for an offense, within the meaning of Section 40.20, when he is charged by an accusatory instrument and when the action proceeds to the trial stage and a jury has been impaneled and sworn. This requirement accords with the standard set forth by the United States Supreme Court in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), which was subsequently made binding on the state under the Fourteenth Amendment in Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Neither of these cases, nor, for that matter, any reported case in New York, addresses the question of at what point the jury is "impaneled" and/or "sworn".

In People v. Bestle, 22 Misc.2d 1088, 197 N.Y.S.2d 820 (1960), the failure to swear the jury in a criminal case prior to the taking of testimony was held to be fatal error to the proceedings, and not subject to waiver. However, the court there reversed the lower court's dismissal of the case, ruling that in order to provide both the People and the defendant a proper determination on the issues, the court should have declared a mistrial and selected a new jury. In People v. Williams, 13 A.D.2d 522, 212 N.Y.S.2d 210 (2 Dept.1961), where, upon the selection of nine jurors, the court administered the oath to them without awaiting the defendant's acquiescence with respect to all of the twelve jurors to be selected, the Second Department affirmed based upon "the discretion of the trial court to determine the practice to be adopted at the trial".

It has always been the practice of this Court to conduct three separate swearings in: the first at the time the veniremen are assembled in the courtroom as a panel and prior to their names being called for voir dire; the second, after selection (either singly or as a group, as the case may be) following questioning and the exercise of challenges by both sides; and the third, following the selection of the complete jury of...