Rafferty v. Owens

• Decision Date: 08 September 1981
• Citation: 82 A.D.2d 582,442 N.Y.S.2d 571
• Parties: James RAFFERTY, Petitioner, v. Thaddeus OWENS, a Justice of the Supreme Court, County of Richmond, State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 571

442 N.Y.S.2d 571

82 A.D.2d 582

James RAFFERTY, Petitioner, v. Thaddeus OWENS, a Justice of the Supreme Court, County of

Richmond, State of New York, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Sept. 8, 1981.

Behrins, Lemole, McCarthy & Peter J. Napolitano, P. C., Staten Island (Paul A. Lemole, Staten Island, of counsel), for petitioner.

Thomas R. Sullivan, Dist. Atty., Staten Island (Joseph O'Shea, Staten Island, of counsel), respondent pro se.

Before MOLLEN, P. J., and TITONE, MANGANO, THOMPSON and BRACKEN, JJ.

MOLLEN, Presiding Justice.

In this proceeding, the petitioner seeks a writ of prohibition to prevent a second trial of the Richmond County indictment pending against him. His first trial ended with a not guilty verdict on one count of the indictment and jury disagreement as to the remaining two counts. The petitioner's position here is, inter alia, that his motion for a trial order of dismissal should have been granted because the evidence presented at his trial was legally insufficient to sustain a criminal conviction. He contends that, as a result, a retrial on the unresolved counts would violate his constitutional right against double jeopardy. The novel issue presented is whether this court must at this time reach the merits of the petitioner's claim by reviewing the record of his trial and assessing the legal sufficiency of the evidence presented against him.

In a three-count indictment, the petitioner was accused of intentional murder, felony murder and sexual abuse. The charges arose out of the mutilation slaying of a 16-year-old girl on Staten Island. Trial was held and, following the close of the evidence and the denial of the petitioner's application for a trial order of dismissal, the case went to the jury, which then deliberated for some 18 hours over a three-day period. In the course of their deliberations, the jurors submitted several requests to the court, each of which was dealt with in a manner that provoked no defense objection. On the afternoon of their second day of deliberations, the jurors informed the court that they were "in no way reconcilable". The court nevertheless encouraged them to continue their deliberations, noting the importance of their reaching a verdict if possible. Again the defendant voiced no objection. Deliberations resumed and, before retiring for the night, the jury informed the court that "has been movement". The foreman, however, cautioned, "I don't think we will move any further." Some movement apparently did occur for, after further deliberation the following day, the court received a note which said, "the jury reached a decision on count one, not guilty, but we are deadlocked on counttwo and three." Without objection, the court accepted the partial verdict, acquitting the defendant of intentional murder, and declared a mistrial as to the second and third counts of the indictment. The jury was thereupon discharged and the petitioner subsequently instituted this proceeding to prohibit a retrial.

At the outset, we reject the petitioner's belated claim, made for the first time here, that the trial court erred in declaring a mistrial. With the court's entirely proper encouragement, the jurors engaged in lengthy deliberations and, after an initial announcement of irreconcilability, they managed to agree on one of the three charges submitted to them. In the circumstances of this case, we find that the court acted well within its discretion in accepting the partial verdict and in then discharging the jury which had finally declared itself deadlocked. (See CPL 310.60, 310.70; cf.People v. Presley, 22 A.D.2d 151, 154, 254 N.Y.S.2d 400, affd. 16 N.Y.2d 738, 262 N.Y.S.2d 113, 209 N.E.2d 729.)

We turn then to the question of whether, in this article 78 proceeding, the petitioner may obtain a review of the record of his trial and a determination of the legal sufficiency of the prosecution's evidence. As earlier noted, he contends that his constitutional right against double jeopardy would be violated by a second trial because the People failed to produce legally sufficient evidence at the first trial. In essence, he seeks to carve out a new exception to the general rule that the Double Jeopardy Clause is not offended by a second trial following the inability of the first jury to agree on a verdict. (See, e. g., United 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; see, also, Lee v. United States, 432 U.S. 23, 30, 97 S.Ct. 2141, 2145, 53 L.Ed.2d 80; United States v. Scott, 437 U.S. 82, 92-93, 98 S.Ct. 2187, 2194-2195, 57 L.Ed.2d 65.)

It is certainly true that considerations of double jeopardy will bar a second attempt by the People to adduce legally sufficient evidence of guilt after they have been unsuccessful in one full and fair opportunity to do so. (See, e. g., Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199.) It is equally true that a writ of prohibition may issue to prevent a retrial which would violate a defendant's double jeopardy rights. (See, e. g., Matter of Abraham v. Justices of N.Y. Supreme Ct. of Bronx County, 37 N.Y.2d 560, 564, 376 N.Y.S.2d 79, 338 N.E.2d 597; Matter of Scranton v. Supreme Ct. of State of N.Y., 36 N.Y.2d 704, 366 N.Y.S.2d 417, 325 N.E.2d 876.) Nevertheless, we reject the petitioner's suggestion that these principles in combination permit a defendant whose trial has ended in a mistrial to obtain appellate review of the sufficiency of the evidence through an article 78 proceeding.

Although petitioner's argument is framed in terms of double jeopardy, its connection to that constitutional doctrine is at best derivative. Considerations of double jeopardy in this case would not arise unless we were to review the record of the petitioner's trial and conclude that the prosecution's evidence was in fact legally insufficient. Hence, the petitioner is not actually seeking a ruling involving double jeopardy in the first instance. Rather, he is attempting to appeal from an adverse interlocutory ruling on evidentiary sufficiency, viz., the denial of his application for a trial order of dismissal. (See United States v. Carnes, 9th Cir., 618 F.2d 68, cert. den. 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124; United States v. Solano, 605 F.2d 1141, 1143.) The law of this State, however, does not authorize appeals from interlocutory rulings in criminal cases (see CPL art. 450) and thus the petitioner would appear to be precluded from obtaining the review he seeks at the present procedural posture of the case.

We recognize that, arguably, it is somewhat anomalous to draw a distinction in this regard between a convicted defendant and one whose trial is aborted by a jury deadlock. (See United States v. Becton, 5th Cir., 632 F.2d 1294...