People v. Mayo

• Decision Date: 15 November 1979
• Citation: 48 N.Y.2d 245,397 N.E.2d 1166,422 N.Y.S.2d 361
• Parties: , 397 N.E.2d 1166 The PEOPLE of the State of New York, Respondent, v. David B. MAYO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 361

422 N.Y.S.2d 361

48 N.Y.2d 245, 397 N.E.2d 1166

The PEOPLE of the State of New York, Respondent, v. David B. MAYO, Appellant.

Court of Appeals of New York.

Nov. 15, 1979.

Douglas P. Rutnik, Public Defender (James E. Banagan, Albany, of counsel), for appellant.

Sol Greenberg, Dist. Atty. (F. Patrick Jeffers, Albany, of counsel), for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

Following a trial court's decision to dismiss a charge of first degree robbery on grounds of insufficient evidence, defendant Mayo was again brought to trial for the same offense in clear violation of his rights under the double jeopardy clause of the United States Constitution. The novel question presented upon this appeal is whether reversal of his conviction of a lesser included offense is required even though the jury in the second trial was instructed not to consider the original first degree robbery charge, the sole count in the indictment. After examining the relevant principles and precedents. We conclude that the conviction must be reversed.

Defendant Mayo was initially brought to trial under a single-count indictment charging him with having committed robbery in the first degree in violation of subdivision 3 of section 160.15 of the Penal Law. At the close of the trial, defendant moved to have the sole charge against him dismissed on the ground that the People had failed to establish an essential element of the crime, the use or threatened use of a dangerous weapon (see Penal Law, § 160.15, subd. 3). Although the Trial Judge declined to dismiss the indictment outright, he indicated his agreement with defendant's position and instructed the jury that it could find defendant guilty only of the lesser included offense of robbery in the second degree or, in the alternative, robbery in the third degree (see CPL 300.30, subd. 1; 300.50, subd. 1). The proceedings ultimately terminated in the declaration of a mistrial after the jury was unable to reach agreement as to defendant's guilt on these lesser charges.

Rather than obtaining a new indictment charging defendant with the less serious crimes of robbery in the second and third degrees, the People elected to bring defendant to trial a second time under the original indictment. Defendant promptly objected to being retried on the first degree robbery count and moved to dismiss the indictment, but the trial court concluded that retrial was not proscribed by the double jeopardy clause of the Fifth Amendment and, accordingly, permitted the trial to go forward. ¹

Notwithstanding this determination, the Trial Judge subsequently decided that the first degree robbery charge should be withdrawn from the jury's consideration. Consequently, before sending the jurors out to deliberate, the Trial Judge informed them that although defendant had been indicted for first degree robbery, they were not to consider that charge in arriving at their verdict "for legal reasons" with which they need not concern themeselves. The jurors were further instructed that they should consider defendant Mayo's guilt only in relation to the lesser included offenses of robbery in the second and third degrees, which were not specifically charged in the indictment. This time, the jury found the defendant guilty of robbery, second degree.

On appeal from the judgment of conviction, the Appellate Division determined that the trial court had erred in permitting defendant to be tried a second time for first degree robbery. Nonetheless, applying a "harmless error" analysis, the Appellate Division held that reversal was not warranted, since the jury was not permitted to consider the improperly raised first degree robbery charge and, in fact, had been made aware of it only through "fleeting" references. Because we find the application of "harmless error" analysis wholly inappropriate in this context, we are constrained to reverse the Appellate Division's determination and dismiss the underlying indictment.

We note at the outset that the Appellate Division was correct in concluding that defendant Mayo's rights under the double jeopardy clause of the Fifth Amendment were violated in the most fundamental manner when he was haled into court and made to answer the charge of first degree robbery for the second time. Although the jury in the first trial was not permitted to consider that charge, the trial court's decision to withdraw the first degree robbery count from the jury's consideration on the ground of insufficient evidence was equivalent to an acquittal and therefore operated as a bar to any further prosecution of that charge (People v. Key, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147; accord United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642; see Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1).

It may be that defendant could have been retried and convicted under a properly drawn indictment charging him only with the lesser included crimes of robbery in the second and third degrees. As to these charges, the proceedings were inconclusively terminated by the declaration of a mistrial following the jury's inability to reach a verdict, and, under settled double jeopardy principles, there could be no objection to the bringing of a second criminal proceeding (United States v. Perez, 9 Wheat (22 U.S.) 579, 6 L.Ed. 165; see United States v. Scott, 437 U.S. 82, 92-94, 98 S.Ct. 2187, 57 L.Ed.2d 65; Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717; Matter of Nolan v. Court of Gen. Sessions, 11 N.Y.2d 114, 119, 227 N.Y.S.2d 1, 4, 181 N.E.2d 751, 753). ² The fact remains, however, that here the People did not choose to limit the charges in the second proceeding to the permissible counts of second and third degree robbery. Instead, they opted to proceed under the original indictment, thereby placing defendant once again at risk of being convicted of first degree robbery, a crime of which he had previously been, in effect, acquitted. It is precisely this type of imposition that the double jeopardy clause of the Fifth Amendment was calculated to prevent.

That defendant Mayo was not actually convicted of first degree robbery upon retrial does not undermine our conclusion that his second trial was constitutionally prohibited. As we have noted on several occasions, the evil to which the double jeopardy clause is addressed occurs when a defendant is brought into court to defend against a criminal charge for the second time and is again subjected to the attendant expense, personal anxiety and social opprobrium (People v. Michael, 48 N.Y.2d 1, 7-8, 420 N.Y.S.2d 371, 373-374, 394 N.E.2d 1134, 1136-1137; Matter of Nolan v. Court of Gen. Sessions, 11 N.Y.2d 114, 119, 227 N.Y.S.2d 1, 4, 181 N.E.2d 751, 753, Supra ; accord Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 57 L.Ed.2d 24; Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199). The effect of such a burden simply cannot be rectified by the defendant's subsequent exoneration.

This principle was the basis of the United States Supreme Court's decision in Price v Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 2d 300. The appellant in Price initially had been tried on a murder charge, but had been convicted only of the lesser included offense of voluntary manslaughter. Although this conviction constituted an implied acquittal on the more serious murder charge, the State sought to try the appellant once again on that count after his voluntary manslaughter conviction was set aside on appeal. Once again the appellant was convicted only of the lesser charge of voluntary manslaughter. The Supreme Court reversed the appellant's conviction on double jeopardy grounds, even though the crime for which the appellant had been convicted was not the crime for which he had been twice placed in jeopardy. In so doing, the Price court rejected the contention that the violation of the appellant's rights under the double jeopardy clause could be considered harmless and stated (p. 331, 90 S.Ct. p. 1762): "The Double Jeopardy Clause * * * is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial * * * is an ordeal not to be viewed lightly. Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense * * * rather than to continue to debate his innocence".

Notwithstanding the clear import of this language, we are urged to distinguish Price from the case presently before us on the ground that in Prince the jury was permitted to consider the more serious charge of which the appellant had previously been exonerated, while here the first degree robbery count, which was barred under the double jeopardy clause, was withdrawn from the jury...