Plummer v. Rothwax

• Decision Date: 18 October 1984
• Citation: 63 N.Y.2d 243,481 N.Y.S.2d 657,471 N.E.2d 429
• Parties: , 471 N.E.2d 429 In the Matter of Anthony PLUMMER, Appellant, v. Harold J. ROTHWAX, as a Justice of the New York State Supreme Court, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 657

481 N.Y.S.2d 657

63 N.Y.2d 243, 471 N.E.2d 429

In the Matter of Anthony PLUMMER, Appellant, v. Harold J. ROTHWAX, as a Justice of the New York State Supreme Court, et al., Respondents.

Court of Appeals of New York.

Oct. 18, 1984.

Paul Morgenstern and Paul Feinman, New York City, for appellant

Robert M. Morgenthau, Dist. Atty., New York City (Ronald G. Blum and Bruce Allen, New York City, of counsel), for respondents.

OPINION OF THE COURT

JASEN, Judge.

The narrow issue presented on this appeal is whether the trial court abused its discretion in declaring a mistrial by reason of the jury's apparent inability to reach a verdict. If there was such an abuse, a retrial would be barred as violative of the defendant's right against double jeopardy.

Defendant was brought to trial on charges of sodomy in the first degree and assault in the second degree. The People's case consisted solely of the testimony of the complainant and the arresting officer; the defense presented only a detective from the police crime laboratory.

The complainant testified that defendant had let himself into her apartment while she was alone under the guise that he needed to do some handiwork for the building superintendent, and that, shortly thereafter, he emerged from the bathroom naked and forced her to perform oral sex. She further testified that she ran away immediately thereafter and called the police.

On cross-examination, defense counsel questioned the complainant about the discrepancies between her testimony on direct and that given at the preliminary hearing and the Grand Jury. At the preliminary hearing, for example, the complainant had testified that the defendant entered her apartment together with the landlord, that he remained for several hours, and that she permitted him to use her shower prior to the alleged sexual assault. Additionally, the complainant had stated at the Grand Jury that she unsuccessfully attempted to defend herself with a kitchen knife--a matter which she failed to mention at either the preliminary hearing or at trial. While there were these and other more superficial inconsistencies in complainant's statements, nevertheless, she did not alter her testimony as to the forceful nature of the sexual act.

The arresting officer testified briefly that he received a radio transmission, met the complainant who explained the incident, found defendant in his own apartment and placed him under arrest, and took complainant to the hospital. The defendant's only witness testified that the laboratory test failed to disclose any sperm in complainant's mouth. On cross-examination, he acknowledged that such tests very rarely do.

The trial had commenced in the afternoon of April 18, 1983. The following morning, the defense rested, the court charged the jury and deliberations began at 11:00 a.m. During the 6 1/2 hours that followed, the jury spent 1 hour and 15 minutes for lunch, requested further instructions and readings of the complete testimonies of both prosecution witnesses which cumulatively took 32 minutes, and completed their deliberations.

At 5:40 p.m., the jury sent a note to the Trial Judge stating, "Your Honor, we cannot come to a verdict." The jurors were reassembled in the courtroom and the Judge read from CPL 310.60 ¹ and explained that the statute applies where further deliberations would be "fruitless"--where "there would be no possibility of further deliberations altering the positions of the jury."

Addressing the foreperson in the presence of the other jurors, he then engaged in the following dialogue:

"the court: Now, is that, Madame Foreperson, is that the position of the jury at this time? Do you think that if you were to discuss this case for any additional period of time the jury is likely to come to any changed position?

"the foreperson: No, sir.

"the court: You are suggesting to me that this jury is, what you might say hopelessly deadlocked, split down the middle and there is no chance of the jury changing their position? Essentially the problem is that this case was tried, it's true in only a period of a day but the circumstances provide that when a jury is discharged, the defendant is to be re-tried on the indictment and so we will select another jury with no more care than we selected this one. They will hear the same witnesses and they will have to hear the same case. So if you think you would like to go to dinner and continue your deliberations then you think that will produce anything, we will do that. If you want to indicate that this jury is so deadlocked that it's not going to help, you can tell me that now.

"the foreperson: I believe that we are deadlocked.

"the court: I am sorry, I can't hear you.

"the foreperson: I do believe that we are deadlocked.

"the court: And you are suggesting that the division of twelve jurors is so hopelessly deadlocked that no amount of further deliberations will be of any value and it will be a waste of your time and the court's? Is that what you are suggesting?

"the foreperson: Yes."

At that point, the court made a finding that a verdict was not likely to be reached within a reasonable time and discharged the jury. Defense counsel noted his objection on the ground that the jury had deliberated for only a short time. The court, however, responded that the time was reasonable in light of the brevity of the case and the nature of the complainant's testimony, and that there was no dissent from any of the jurors that further deliberations would be of any value. The case was then reassigned for a new trial.

On reassignment to trial before respondent Supreme Court Justice, defendant moved to dismiss the indictment on the grounds that a retrial was violative of the protections against double jeopardy under the Fifth Amendment of the United States Constitution ² and CPL 210.20 (subd. 1, par. ). ³ The motion was denied and this article 78 proceeding was commenced in the Appellate Division. Defendant raised the same arguments in that court seeking a writ of prohibition to bar retrial. ⁴ The Appellate Division, 97 A.D.2d 680, 468 N.Y.S.2d 289 unanimously denied the petition, without opinion. We now affirm for the following reasons.

The constitutional guarantee against double jeopardy safeguards the defendant's "valued right to have his trial completed by a particular tribunal" (Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974) which "he might believe to be favorably disposed to his fate" (United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 558, 27 L.Ed.2d 543.) This "valued right" protects the defendant against the increased financial and emotional burden of a second prosecution, the prolongation of an unresolved stigma and the enhanced risk of an unjustified conviction. (Arizona v. Washington, 434 U.S. 497, 503-504, 98 S.Ct. 824, 829-830, 54 L.Ed.2d 717.) In the oft repeated words of Justice Black, "underlying idea * * * is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." (Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199.)

But the proscription against twice putting a defendant in jeopardy "does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in final judgment." (Wade v. Hunter, supra, 336 U.S. at p. 688, 69 S.Ct. at p. 837.) Rather, unlike the situation in which the trial has resulted in a judgment of acquittal, a retrial is not automatically barred where the merits of the charges against the defendant have not been resolved. Indeed, the valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest "in seeing that a criminal prosecution proceed to verdict". (Illinois v. Somerville, 410 U.S. 458, 463, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425; Arizona v. Washington, supra, 434 U.S. at p. 505, 98 S.Ct. at p. 830.) The "classic example" is a mistrial where the Trial Judge discharges a genuinely deadlocked jury. (Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100; see, also, iUnited States v. Perez, 9 Wheat 579, 6 L.Ed. 165; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429.) In such a case, there is no bar to a retrial.

The decision to declare a mistrial necessarily rests in the broad discretion of the Trial Judge (Hall v. Potoker, 49 N.Y.2d 501, 505, 427 N.Y.S.2d 211, 403 N.E.2d 1210; see, also, People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794; Illinois v. Somerville, supra, 410 U.S. at p. 462, 93 S.Ct. at p. 1069) who is best situated to take all the circumstances into account and determine whether a mistrial is in fact required in a particular case. (People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134; Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901.) Moreover, failure of reviewing courts to accord great deference to a Trial Judge's decision--and, instead, to bar retrial whenever the facts are viewed somewhat differently on appeal--might well encourage a needless waste of judicial resources and time by requiring further deliberation of juries that are hopelessly deadlocked (see Arnold v. McCarthy, 566 F.2d 1377, 1387 (9th Cir.); United States v. Goldstein, 479 F.2d 1061, 1068 (2nd Cir.)) and, more drastically, might similarly encourage the employment of "untoward pressure" upon juries or, simply, their eventual exhaustion to break deadlocks at the risk of unjust verdicts (see People v. Pagan, 45 N.Y.2d 725, 727, 408 N.Y.S.2d 473, 380 N.E.2d 299; People v. Carter, 40 N.Y.2d 933, 934, 389 N.Y.S.2d 835, 358 N.E.2d 517; People v. Faber, 199...