People v. Scott
| Citation | 40 A.D.2d 933,337 N.Y.S.2d 640 |
| Parties | PEOPLE of the State of New York, Respondent, v. Arthur SCOTT, Appellant. |
| Decision Date | 02 November 1972 |
| Court | New York Supreme Court Appellate Division |
Henrietta M. Wolfgang, Buffalo, for appellant.
Aldo DiFlorio, Lockport, Shavasp Hanesian, Niagara Falls, for respondent.
Before DEL VECCHIO, J.P., and MARSH, WITMER, MOULE and HENRY, JJ.
Appellant was convicted of criminally selling a dangerous drug in the third degree. His guilt was established beyond a reasonable doubt and we find no error during the trial to warrant a reversal. It is necessary, however, to discuss appellant's motion to dismiss the indictment on the ground that he was being subjected to double jeopardy. On December 1, 1971, after four jurors had been selected and sworn, the court granted People's motion for a mistrial on the ground that an indispensable witness was out of the state and would not be available for the trial. On January 3, 1972, when the case was again called for trial, appellant moved to dismiss the indictment on the ground that he was being subjected to double jeopardy, contending that the trial had commenced by the previous selection of four jurors. In support of that claim, appellant relied on section 260.30 of the Criminal Procedure Law which, in prescribing the order in which a jury trial shall proceed, provides: However, in view of other sections of the Criminal Procedure Law directed specifically to the subject of double jeopardy, we think the section relied on by appellant is neither relevant nor determinative. Prior to the adoption of the Criminal Procedure Law, the traditional double jeopardy rule in New York was that a person was not placed in jeopardy until the jury had been examined and sworn and evidence given (Matter of Bland v. Supreme Court, 20 N.Y.2d 552, 554, 285 N.Y.S.2d 597, 598, 232 N.E.2d 633, 634). The new criminal procedure statute, effective September 1, 1971, includes section 40.20, which provides that a person may not be twice prosecuted for the same offense. (N.Y.Const., art. I, Section 6). By way of implementation of this provision, section 40.30, subd. 1(b) states that a person 'is prosecuted' for an offense, within the meaning of section 40.20, when the action proceeds to the trial stage and a witness is sworn. By this provision it is clear that, under the Criminal Procedure Law, jeopardy attaches, not on the selection and and swearing of the jury...
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