Potenza v. Kane

• Citation: 437 N.Y.S.2d 189,79 A.D.2d 467
• Parties: In the Matter of the Application of Rocco POTENZA, Petitioner, v. Hon. James B. KANE, Hon. Theodore S. Kasler, Hon. Paul I. Miles and Edward C. Cosgrove, Respondents.
• Decision Date: 27 March 1981
• Court: New York Supreme Court Appellate Division

Page 189

437 N.Y.S.2d 189

79 A.D.2d 467

In the Matter of the Application of Rocco POTENZA, Petitioner, v. Hon. James B. KANE, Hon. Theodore S. Kasler, Hon. Paul I.

Miles and Edward C. Cosgrove, Respondents.

Supreme Court, Appellate Division, Fourth Department.

March 27, 1981.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo (Paul Cambria, Buffalo, of counsel), for petitioner.

Robert Abrams, Atty. Gen., Albany (Patrick McCormack, Asst. Atty. Gen., Buffalo, of counsel), for respondents Kane, Kasler and Miler.

Edward C. Cosgrove, Buffalo (John DeFranks, Buffalo, of counsel), for respondent Cosgrove.

Before SIMONS, J. P., and HANCOCK, DOERR, DENMAN and MOULE, JJ.

SIMONS, Justice Presiding.

Petitioner is an attorney charged with bribing an Assistant District Attorney to obtain favorable treatment for his clients. His trial ended when his motion for a mistrial was granted. Claiming that the double jeopardy clause bars retrial because his motion was provoked by prosecutorial misconduct, he brings this Article 78 proceeding seeking an order of prohibition (see Matter of Di Lorenzo v. Murtagh, 36 N.Y.2d 306, 309, 367 N.Y.S.2d 761, 327 N.E.2d 805; Matter of Kraemer v. County Court of Suffolk County, 6 N.Y.2d 363, 189 N.Y.S.2d 878, 160 N.E.2d 633; Matter of De Canzio v. Kennedy, 67 A.D.2d 111, 113, 415 N.Y.S.2d 513). We find no misconduct by the prosecution warranting the relief requested and therefore dismiss the petition.

The charges against petitioner arose out of an incident in which his clients, posing as reputable repairmen, allegedly defrauded 81 year-old Mabel Hartung of $9,000 by making unnecessary repairs to her home. The matter was reported eventually to Richard Mancuso, Assistant District Attorney of Erie County in charge of the Consumer Fraud Bureau. It was the theory of the prosecution, and Mancuso so testified, that petitioner paid Mancuso $1,000 to avoid prosecution of his clients and to permit the matter to be settled by civil compromise. To prove its case, the prosecution relied primarily on the testimony of Richard Mancuso and evidence contained in recordings of three telephone conversations between Mancuso and petitioner.

During the three weeks of trial, petitioner's counsel made twelve motions for mistrial and he now asserts that the prosecutorial misconduct which provoked these motions, when considered cumulatively, was so egregious and prejudicial that his retrial should be prohibited. The alleged misconduct falls generally into three separate areas involving such matters as the prosecutor's opening statement and his prejudicial gestures before the jury, his questions while examining witnesses and, finally, petitioner's claim that the prosecutor intentionally failed to deliver to him the original tape of one of his four intercepted telephone conversations with Mancuso. This latter incident precipitated the court's ruling terminating the trial, but the court did not rely upon it alone in granting petitioner's motion.

There is a strong policy of American Law favoring finality in criminal proceedings which is expressed in the constitutional and statutory prohibitions against double jeopardy (U.S.Const., 5th Amdt.; and see Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (applying the 5th Amdt. to the states); N.Y.Const., Art. I, § 6; CPL 40.20, subd. 1). The amendments are designed to protect the individual's basic human right not to be harassed or perhaps impoverished by successive prosecutions for the same offense either by means of multiple trials, multiple punishments or deliberate efforts by the prosecution to find a court or jury that will convict the defendant. The underlying idea, in the words of Justice Black, is that the state with all its power may not be allowed to make repeated attempts to convict an individual, "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). When applied to mistrials, the double jeopardy clause also protects a defendant's "valued right to have his trial completed by a particular tribunal", but his right is not absolute and it may at times be subordinated to the public interest in fair trials and just judgments (Wade v. Hunter, 366 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974; and see United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267; Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425). Thus, it has been held that a trial may be aborted even without the consent or acquiescence of the defendant, and he may be retried if there was a "manifest necessity for the act, or the ends of public justice would otherwise be defeated" if retrial was barred (United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165; see Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717; Illinois v. Somerville, supra, p. 461, 93 S.Ct. at 1069; United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543; Matter of Cardin v. Sedita, 53 A.D.2d 253, 385 N.Y.S.2d 667, or if "it clearly appears that a mistrial has been granted in the sole interest of the defendant" (Gori v. United States, 367 U.S. 364, 369, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901). Needless to say, when a defendant requests that the trial be terminated, his request ordinarily removes the constitutional barrier and he may not claim that the double jeopardy clause prevents a second prosecution even though the mistrial is based upon prosecutorial or judicial error (United States v. Dinitz, supra; United States v. Jorn, supra; Drayton v. Hayes, 2nd Cir., 589 F.2d 117). Notwithstanding that general rule, in extreme cases of prosecutorial overreaching, an exception has been recognized, for the prosecutor may not pre-empt defendant's right to complete his trial by misconduct which leaves defendant with no choice but to move for a mistrial. "The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed" in the event of prosecutorial or judicial error (United States v. Dinitz, supra, p. 609, 96 S.Ct. at 1080). As long as he does, his voluntary motion permits retrial. When defendant's motion is induced or provoked by prosecutorial harassment, retrial may be prohibited.

Although the United States Supreme Court and the courts of New York recognize this exception, neither has yet barred reprosecution following a successful defense motion for mistrial because of prosecutorial misconduct. ¹ Moreover, in discussing the exception neither has specified, except in the most general terms, what misbehavior will be viewed as sufficiently grave to warrant prohibition. Culling from the decisions, however, it seems that the exception will not apply unless the prosecutor's misconduct was motivated by bad faith (United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 supra; see Lee v. United States, 432 U.S. 23, 33, 97 S.Ct. 2141, 2147, 53 L.Ed.2d 80; Mitchell v. Smith, 2nd Cir., 633 F.2d 1009, 1013), a characterization which suggests conduct that is wilful or grossly negligent and that is "designed to avoid an acquittal" (United States v. Jorn, 400 U.S. 470, 485, n.12, 91 S.Ct. 547, 557 n.12, 27 L.Ed.2d 543, supra), or to provoke a motion for mistrial (United States v. Cox, 9th Cir., 633 F.2d 871; Mitchell v. Smith, supra, 1013; see, also, Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100; Drayton v. Hayes, 2nd Cir., 589 F.2d 117, 121, supra; United States v. Martin, 8th Cir., 561 F.2d 135, 138-140, supra; United States v. Kessler, 5th Cir., 530 F.2d 1246, 1256-1258, supra; United States v. Beasley, 5th Cir., 479 F.2d 1124, 1126, cert. den. 414 U.S. 924, 94 S.Ct. 252, 38 L.Ed.2d 158). It is not enough that the prosecutor's conduct is motivated by a desire to gain an edge over defendant. Such misconduct may require a new trial but it will not normally prevent reprosecution. Reprosecution will be prohibited only if the misconduct was aimed at vitiating the protection of the double jeopardy clause to gain a more favorable opportunity to convict defendant. Concededly, motivation may be difficult to determine, but the misconduct must be so reprehensible as to justify the inference that it was done in bad faith for the purpose of provoking defendant's motion. Prejudice to defendant is also a part of the equation, for logically, if defendant has not been prejudiced, it would seem that his motion was not coerced but was voluntary and made for strategic purposes (Mitchell v. Smith, supra, p. 1013; Drayton v. Hayes, supra, p. 122). Former Chief Judge Breitel capsulized these considerations when he observed in dictum that reprosecution is not barred so long as the motion is made by defendant and the error prompting it is not motivated by bad faith or a desire to provoke the motion (People v. Key, 45 N.Y.2d 111, 119, 408 N.Y.S.2d 16, 379 N.E.2d 1147; see, also, Annot., 98 A.L.R.3d 997; Comment, The Double Jeopardy Clause and Mistrials Granted on Defendant's Motion, 18 Duq.L.Rev. 103; Comment, Double Jeopardy, An Illusory Remedy to Governmental Overreaching, 29 Buffalo L.Rev. ---).

A certain degree of finesse is required in judging the issue, because the public interest is not served if every prosecutorial miscue, no matter how slight, results in double jeopardy consequences. On the other hand, neither defendant's nor society's interests are advanced if the court, fearing double jeopardy, refuses to grant a defendant's motion for mistrial except in the most extreme case of misconduct. That approach forces defendant to slog his way through a hopelessly flawed trial to its ultimate conclusion, inevitable appeal and later retrial, and it runs counter to the purposes underlying the double jeopardy...