People v. Smith

• Decision Date: 16 January 1974
• Citation: 81 Misc.2d 926,365 N.Y.S.2d 317
• Parties: The PEOPLE of the State of New York, Respondent, v. Lloyd SMITH, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Term

Page 317

365 N.Y.S.2d 317

81 Misc.2d 926

The PEOPLE of the State of New York, Respondent, v. Lloyd SMITH, Defendant-Appellant.

Supreme Court, Appellate Term, First Department.

Jan. 16, 1974.

William E. Hellerstein and Robert Kasanof, New York City (Allen E. Burns, New York City, of counsel), for appellant.

Frank S. Hogan, Dist. Atty. (Michael R. Juviler and John Bernard Mullady, New York City, of counsel), for respondent.

Before MARKOWITZ, P.J., and QUINN and LUPIANO, JJ.

PER CURIAM:

Defendant stands convicted of the crime of criminal impersonation (Penal Law, § 190.25). Defendant has been tried twice on six misdemeanor charges. The crime of which he stands convicted was one of these charges.

At the first trial, at the conclusion of the presentation of evidence by both sides, the trial judge dismissed this, and one other, count on the ground that, as a matter of law, the People had failed to establish defendant's guilt on these charges beyond a reasonable doubt. When the jury at the first trial was unable to agree upon a verdict on the remaining four counts, a mistrial was declared and a new trial ordered. Under the asserted mandate of the Criminal Procedure Law, defendant was retried on all six counts (§§ 280.20, 310.60(2), 360.55, 440.10(6), 470.55). On the retrial the jury found defendant guilty only of the count of criminal impersonation.

At the inception of the second trial, defendant had moved to dismiss this court on the basis of double jeopardy (U.S. Constitution, 5th and 14th Amendments; N.Y. Constitution, Art. 1, § 6; Criminal Procedure Law, § 40.20, subd. 1; Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; People v. Jackson, 20 N.Y.2d 440, 285 N.Y.S.2d 8, 231 N.E.2d 722, cert. den. 391 U.S. 928, 88 S.Ct. 1815, 20 L.Ed.2d 668; People v. Ressler, 17 N.Y.2d 174, 179--180, 269 N.Y.S.2d 414, 416--417, 216 N.E.2d 582, 584). It was error to deny this motion (United States v. Sisson, 399 U.S. 267, 288, 90 S.Ct. 2117, 2128, 26 L.Ed.2d 608, 623; United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300, 303; People ex rel. Stabile v. Warden, 202 N.Y. 138, 151, 95 N.E. 729, 733).

A person may not be twice prosecuted for the same offense (Criminal Procedure Law, § 40.20). A person 'is prosecuted' for an offense when the action proceeds to the trial stage and a witness is sworn (Ibid. § 40.30(1)). Clearly, defendant was put in jeopardy at the first trial, which went far beyond the swearing of a witness (cf. People v. Paquette, 31 N.Y.2d 379, 399 N.Y.S.2d 959, 292 N.E.2d 17; People v. Scott, 40 A.D.2d 933, 337 N.Y.S. 640). Moreover, where, at a trial, the proof falls below the prescribed standard for conviction, the accused is entitled as a matter of law to an acquittal (People v. Ledwon, 153 N.Y. 10, 46 N.E. 1046). Having previously been put at the risk of conviction, and been acquitted of the charge of criminal impersonation (see also, People v. Schwartzman, 24 N.Y.2d 241, 250, 299 N.Y.S.2d 817, 825, 247 N.E.2d 642, 647--648; People v. Vidal, 26 N.Y.2d 249, 253, 309 N.Y.S.2d 336, 339, 257 N.E.2d 886, 889), constitutionally defendant could not thereafter be tried on this charge (People v. Goldfarb, 152 App.Div. 870, 874, 138 N.Y.S. 62, 65, affd. 213 N.Y. 664, 107 N.E. 1083; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199).

To the extent that the cited sections of the Criminal Procedure Law may be construed to the contrary, they are constitutionally unenforceable.

Judgment of conviction reversed on the law, information, dismissed, and bail exonerated.

QUINN, Justice (dissenting).

Defendant was tried twice before juries on a six-count indictment. On the second trial the jury found him guilty of the crime of criminal impersonation and not guilty of the other counts submitted. On the first trial the count charging criminal impersonation had not been submitted to the jury because of the trial judge's 'trial order' granting the motion By defendant to dismiss it for insufficiency of evidence. On the first trial the jury was unable to agree to a verdict on any of the counts submitted to it and, with the unconditional consent of defendant, was discharged.

Defendant's trial the second time, on the same evidence, for criminal impersonation was authorized under the provisions of CPL 310.60, subdiv. 2, because of the discharge of the hung jury with the consent of defendant. That section provides in part:

'When the jury is so discharged, the defendant or defendants may be retried upon the indictment. Upon such retrial, the indictment is deemed to contain all the counts which it contained at the time the previous trial was commenced regardless of whether any count was dismissed by the court in the course of such trial.'

Defendant on this appeal assails this statutory provision on the ground that it files in the face of the constitutional ban against double jeopardy; thus necessarily urging that the court's dismissal for insufficiency of evidence of the count of criminal impersonation on the first trial is the same unchallengeable consummation as a verdict of acquittal by the jury. The legislature however has equated a court's trial order of dismissal with any other judicial ruling in the course of the trial by the section under attack (CPL 310.60) and by making it appealable (CPL sec. 450.20). Certainly it is not a finding or determination of the facts, reserved to the jury alone (People v. Cignarale, 110 N.Y. 23, 27, 17 N.E. 135, 140--141), but a fallible, legal conclusion by the trial judge that on technical consideration, in his opinion, the evidence is of such insufficiency in point of law that the triers of the fact should not be permitted to attempt to rely on it as a basis for finding facts, beyond a reasonable doubt, establishing defendant's guilt. (People v. Ledwon, 153 N.Y. 10, 46 N.E. 1046). To equate the trial judge's legal ruling of the insufficiency of the evidence to the jury's unappealable verdict of acquittal is to render infallible the trial judge's ruling on the whole body of the evidence though inconsistently recognizing the same judge's capacity to err on every interim ruling throughout the trial in the piecemeal accumulation of the evidence.

Once a witness is sworn in a criminal prosecution the defendant is Potentially in jeopardy, so that if the trial ends in acquittal, or fails of completion for some reason (other than it being impossible to proceed without manifest injustice to the public or the defendant himself) the defendant may not be retried without violating his rights under the federal and state constitutions (U.S.Const. 5th and 14th Amendments; N.Y.Const. Art. 1, sec. 6). These constitutional provisions have been traditionally construed to guarantee freedom from Harassment by prosecuting officers through Needless exposure to the personal strain and uncertainty of a second trial. (People v. Barrett, 2 Caines, 304, 308; United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543; Matter of Bland v. Supreme Ct. of N.Y., 20 N.Y.2d 552, 555, 285 N.Y.S.2d 597, 599, 232 N.E.2d 633, 634--635; Mtr. of Nolan v. Court of Gen'l Sessions, 11 N.Y.2d 114, 227 N.Y.S.2d 1, 181 N.E.2d 751).

The constitutional ban against a second trial is not absolute. It has not been so since relaxation of the early English rule that a jury in a criminal case, once sworn, could not be discharged under any circumstances and, locked up without light, heat, food or drink, had to report a verdict or perish. In this country it has been traditionally construed to be conditional; the condition being that, so long as a retrial does not constitute Needless prosecution for the purpose of Harassment, upon good cause shown, the doctrine of no second trial shall yield to the manifest need to protect a vital public interest which on considerations of justice outweighs the need to promote the private good. (People v. Barrett, supra). The above-cited cases and many others to which they refer, are ample authority for the proposition that the individual's right to a single trial has traditionally been held to yield to the right of the People to have interrupted, or incomplete...