People v. Michael

• Citation: 48 N.Y.2d 1,420 N.Y.S.2d 371,394 N.E.2d 1134
• Parties: , 394 N.E.2d 1134 The PEOPLE of the State of New York, Respondent, v. Eric MICHAEL, Appellant.
• Decision Date: 10 July 1979
• Court: New York Court of Appeals

Page 371

420 N.Y.S.2d 371

48 N.Y.2d 1, 394 N.E.2d 1134

The PEOPLE of the State of New York, Respondent, v. Eric MICHAEL, Appellant.

Court of Appeals of New York.

July 10, 1979.

Laurence J. Kaiser, New York City, for appellant

Robert M. Morgenthau, Dist. Atty. (Donald J. Siewert and Robert M. Pitler, New York City, of counsel), for respondent.

OPINION

PER CURIAM:

Defendant raises a substantial double jeopardy claim and seeks reversal of an order of the Appellate Division which affirmed his conviction, upon a second trial, of several counts of robbery, burglary, rape and sodomy arising from an incident hich occurred in Manhattan on April 25, 1975. Defendant was first put on trial for these crimes in July of 1975, together with one France Dugne, also accused of participating in the same criminal activities. During the course of that trial, the court Sua sponte declared a mistrial as to defendant Michael, without obtaining his consent and in the absence of his counsel, because of certain circumstances discussed in detail below. Defendant now contends that the retrial which resulted in the convictions which he now seeks to have overturned was barred by application of the prohibitions against double jeopardy contained in our State and the Federal Constitutions (N.Y.Const., art. I, § 6; U.S.Const., 5th Amdt.). As we are persuaded that defendant's arguments are correct, it is our unpleasant duty to reverse the order appealed from and order that the indictment charging defendant with these serious crimes of violence be dismissed solely because of the trial court's abuse of its authority to declare a mistrial.

Before discussing the merits of defendant's double jeopardy defense, we must first determine whether it presents a question of law reviewable by this court. ¹ In criminal cases the Court of Appeals, unlike the Appellate Divisions, may only review questions of law, except in capital cases (compare CPL 470.35 with CPL 470.15 and CPL 470.30). CPL 470.05 (subd. 2) provides that "(f)or purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. * * * In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered". Defendant Michael failed to raise any double jeopardy claim before or at trial, and instead sought to raise it for the first time on appeal. Hence, his claim does not present a question of law reviewable in this court unless it falls within the small group of claims so fundamentally basic that they constitute questions of law for purposes of our review despite the failure to raise them in a timely manner.

There exist certain narrowly drawn exceptions to the general rule that a timely objection or request is necessary to create a question of law reviewable by this court, for certain principles of law are deemed so fundamental to our criminal justice system that a claimed violation of those principles creates a question of law despite the failure to timely raise that claim in the courts below (see People v. Patterson, 39 N.Y.2d 288, 294-296, 383 N.Y.S.2d 573, 576-578, 347 N.E.2d 898, 902-903, aff'd 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281). The requirement that a claim must be timely raised in order to create a question of law is grounded in large part in the need to preserve limited judicial resources and avoid untoward delay in the resolution of criminal proceedings. Certainly, every defendant must be provided at least one opportunity to assert any defense or any claim that the proceedings against him are in some way tainted by a violation of the law. At the same time, the very real interest of the State in achieving finality in a criminal prosecution mandates that such objections be timely raised. Any other rule would serve as an invitation to delay and could result in an unmanageable morass of collateral proceedings within each prosecution. Hence, it is both proper and necessary for the State to require that all such objections be raised at a time when they can be dealt with most readily. At the same time, there exist certain rules of law, be they founded on the common law, prescribed by statute, or mandated by or Constitutions, which are so basic to the validity of a criminal proceeding that the failure to observe such a rule may be raised at any time during the appellate process.

Turning now to the exigencies of the instant appeal, we must first determine whether a claim that the constitutional prohibitions against double jeopardy have been violated poses a question of law reviewable in this court despite the failure to raise that defense before the trial court. We conclude that it does, for double jeopardy implicates the very power of the State to prosecute a particular defendant for a particular crime and serves as an important check on the potential power of the State to intimidate its citizenry. The constitutional prohibition against double jeopardy is fundamental not only to the process of criminal justice, but to our system of government itself. It is, moreover, a doctrine with obvious jurisdictional overtones. That this is so at least in this State is strongly suggested by the fact that double jeopardy is a traditional ground for obtaining the extraordinary remedy of prohibition (e.g., Matter of Nolan v. Court of Gen. Sessions, 11 N.Y.2d 114, 227 N.Y.S.2d 1, 181 N.E.2d 751), which normally lies only where there is an attempt to act without or in excess of jurisdiction (see Matter of BT Productions v. Barr, 44 N.Y.2d 226, 231, 405 N.Y.S.2d 9, 11, 376 N.E.2d 171, 172; LaRocca v. Lane, 37 N.Y.2d 575, 376 N.Y.S.2d 93, 338 N.E.2d 606; Note, The Writ of Prohibition in New York Attempt to Circumscribe an Elusive Concept, 50 St. John's L.Rev. 76). Although a double jeopardy objection may be waivable (see Menna v. New York, 423 U.S. 61, 63, n.2, 96 S.Ct. 241, 46 L.Ed.2d 195; People v. LaRuffa, 37 N.Y.2d 58, 371 N.Y.S.2d 434, 332 N.E.2d 312, cert. denied 423 U.S. 917, 96 S.Ct. 227, 46 L.Ed.2d 147) in certain unusual cases, as where a defendant explicitly consents to retrial despite a double jeopardy defense, double jeopardy nonetheless has strong ties to the concept of jurisdiction, and that, taken together with the significance of the prohibition as a bulwark against governmental overbearing, compels us to hold that a double jeopardy defense based on the State and Federal Constitutions poses a question of law reviewable in this court despite the failure to raise it at the trial level. ² This conclusion is supported by an examination of the double jeopardy defense in light of the rationale supporting the general rule requiring that an issue be timely raised: namely, the avoidance of unduly prolonged proceedings and the possibility of repeated trials. The State's legitimate interests are not seriously touched by allowing a constitutional double jeopardy claim to be raised for the first time on appeal, since such a claim, even if successful, will not result in repeated proceedings, as it is the very essence of a successful double jeopardy defense that there are no further proceedings. Similarly, there will be no need for any additional factual findings in such cases, as such a defense is made out from the record of the prior proceedings and entails no factual inquiry. Finally, double jeopardy does not constitute the type of error which can be remedied so as to allow the trial to proceed in accordance with law if it is timely raised, for such a defense, if valid, is simply not correctable.

Having determined that defendant's constitutional double jeopardy claim does present a question of law reviewable by this court, we next turn to the merits of that defense. The factual basis for defendant's argument is both simple and sad. One morning several days after the commencement of defendant's first trial, the court received a phone call from the office of defendant's attorney, notifying the court that the attorney's father had died unexpectedly during the night and the attorney would be unable to appear in court that day. When the case was called, the court informed the prosecutor and counsel for the co-defendant of this problem, and asked their advice. The prosecutor suggested that the case be adjourned until defendant's counsel could return. The court stated that it would instead probably declare a mistrial since it was impossible to continue the trial in the absence of defense counsel, and an adjournment was not feasible because the trial had to terminate by the end of the week since the court and several members of the jury had made vacation plans for the following week. It was then Tuesday, and the court was of the opinion that even a single day's delay would make it impossible to complete the trial by that Friday. Accordingly, it believed a mistrial to be necessary at least as to this defendant. The court apparently also considered declaring a mistrial as to the co-defendant as well, because it was possible that even though the trial could continue apace against him it too might not be completed by Friday. Eventually, however, the court decided to continue the trial as to co-defendant in the hope that it would indeed end by Friday, but to declare a mistrial as to defendant Michael. During this discussion, in which the defendant had no part, both the prosecutor and counsel for the co-defendant suggested to the court that to declare a mistrial might create a double jeopardy...