People v. Boynton

— Appeal by the People from an order of the Supreme Court, Queens County, dated February 17,1978, which, upon acceptance of a verdict of guilty as to the third count of the indictment, dismissed the remaining or first count thereof, upon which the jury had failed to agree. (The second count was never submitted to the jury, it having been previously dismissed.) Order reversed, on the law, the first count of the indictment is reinstated, and the case is remanded to Criminal Term for further proceedings in accordance herewith. The trial court dismissed the second count of the three-count indictment lodged against this defendant after the close of the evidence and submitted the two remaining counts to the jury for their determination. After due deliberation, the jury returned a guilty verdict on the count alleging that the defendant had endangered the welfare of a child (the third count of the indictment), but reported itself inextricably deadlocked on the charge of rape in the first degree (the first count). At this juncture, the court, sua sponte, dismissed the first count of the indictment stating: "Under the circumstances, the Court will accept the verdict of the jury with respect to the Third Count. As I said earlier, I am very frank to tell you that these are 12 good minds, and they gave an awful lot of consideration to this case, and I cannot see myself ordering a trial before another jury and saddle the State with the expense. I want you to know it costs the State a minimum of $25,000 a day.” No other explanation for the dismissal was offered. The People appeal. In our opinion, the order appealed from must be reversed. The only statute which even colorably authorizes a dismissal such as the one before us is CPL 210.40 (subd 1), which empowers a court to dismiss an indictment or any count thereof when "such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosectution of the defendant upon such indictment or count would constitute or result in injustice.” This court has previously held that a dismissal pursuant to CPL 210.40 requires notice to the People and an opportunity for a hearing (People v Clayton, 41 AD2d 204), but neither was provided in the instant case. This defect alone would constitute reversible error (People v Trottie, 47 AD2d 751). The record herein is devoid of any facts which even remotely suggest that a retrial would work an injustice upon this defendant. The dismissal of the rape count in the absence of such a showing was clearly improper (cf. People v Geller, 65 AD2d 774; People v Kwok Ming Chan, 45 AD2d 613). Acquittal, like conviction, requires a unanimous verdict in this State, and were the logic of Criminal Term to be applied generally, a "hung” jury would be as beneficial to a defendant as a verdict of not guilty. CPL 310.60 and 310.70 are clearly to the contrary and contemplate a retrial of the defendant under circumstances such as the present. Additionally, if the trial court believed that the evidence adduced by the People was legally insufficient to sustain a conviction, it should have dismissed the remaining count of the indictment on that ground, rather than speculate on the cost-effectiveness of a second trial. For all of these reasons there should be a reversal. Although not briefed by the parties, there is an additional factor in this case which remains to be considered, as the prospect of a possible retrial of this defendant presents a difficult double jeopardy issue which has yet to be resolved. In fact, had this precise case come before us as recently as one year ago, we would have been compelled to dismiss the appeal on constraint of People v Brown (40 NY2d 381, cert den 429 US 975, mot for rearg den 42 NY2d 1015, cert den 433 US 913) and People v O’Neill (59 AD2d 540). However, the situation today is different. In the Brown case (p 391, supra), the Court of Appeals, following the principles set forth in United States v Jenkins (420 US 358) and its companion cases (United States v Wilson, 420 US 332 and Serfass v United States, 420 US 377), held: "On the basis of these three cases we conclude that the Supreme Court has formulated a double jeopardy rule — albeit what may be characterized as a mechanical rule — which precludes the People from taking an appeal from an adverse trial ruling whenever such appeal if resolved favorably for the People might require the defendant to stand retrial — or even if it would then be necessary for the trial court 'to make supplemental findings’ (United States v Jenkins, 420 US 358, 370, supra). Double jeopardy principles will bar appeal unless there is available a determination of guilt which without more may be reinstated in the event of a reversal and remand. Application of such rule to the provisions of CPL 450.20 (subd 2) permitting the People to appeal from a trial order of dismissal renders that section unconstitutional except in the instance where disposition of the motion is reserved until after the jury verdict has been returned.” (Emphasis supplied.) A similar rationale would be applicable to the case at bar. Since that time, however, the Supreme Court of the United States has had occasion to reconsider its Jenkins decision and has, in fact, explicitly overruled it in United States v Scott (437 US 82). Contemporaneously, the Court of Appeals has had occasion in People v Key (45 NY2d 111) to reassess its prior decision in People v Brown (supra). If nothing else, these two recent cases, and others, demonstrate that the mechanical test of Jenkins and Brown (supra) is no longer valid and has been replaced by a functional test in which the ultimate decision must rest on whether a second trial will violate any of the defendant’s rights protected by the double jeopardy clause. It is this "new” test which we must apply here. In the course of so doing, it is of the greatest importance to note that the first count of the instant indictment was not dismissed on the ground that the prosecution’s case was legally insufficient, as any dismissal on such a ground would be tantamount to an acquittal and would operate as a bar to any further prosecution (see Burks v United States, 437 US 1; Greene v Massey, 437 US 19). It is well established that the prosecution is only entitled to one opportunity to mount its case against a defendant, and that its failure to do so adequately will not inure to the latter’s detriment. "The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding” (Burks v United States, supra, p 11). In the instant case, however, the record reveals that the trial court dismissed the first count of the indictment primarily because it wanted to spare the State the expense of a second trial and (apparently) because it formed the opinion that a second jury would not have been superior to the first in terms of its wisdom or industry. The sufficiency of the prosecution’s evidence was thus never mentioned, nor did the court determine the defendant to be innocent of the underlying count. In sum, therefore, there was no dismissal on the ground of legal insufficiency, nor was there any factual determination which was favorable to the defendant.* This much established, the next question to be considered is this: would a second trial impermissibly deprive this defendant of his "valued right to have his trial completed by [the first] tribunal” (see Wade v Hunter, 336 US 684, 689). An affirmative answer cannot be sustained. The record discloses that the first count of the indictment was dismissed by the court only after the jury had deliberated from 12:40 p.m. on February 17, 1978 until 12:30 a.m. of the next day (with sufficient time for meals) and had reported itself to be hopelessly deadlocked. The jury was then polled by the court and its representation as to the deadlock was confirmed (cf. Matter of Tuite v Shaw, 49 AD2d 737). At this point, the court had before it what has recently been termed "the classic basis for a proper mistrial” (Arizona v Washington, 434 US 497, 509). In fact, had the trial court merely proceeded to declare a mistrial at this juncture, it is doubtful that anyone would have questioned the right of the People to retry this case. In our view, once Criminal Term properly found the jury to be hopelessly deadlocked, the doctrine of " 'manifest necessity’ ” required the declaration of a mistrial, whether the Trial Justice knew or appreciated this fact, and whether or not he explicitly so found (see Arizona v Washington, supra, p 516). The defendant’s right to proceed to a verdict with the first jury terminated at this juncture and had to give way to "society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws” (Arizona v Washington, supra, p 509; Wade v Hunter, supra, p 689). Clearly, then, this is not a case in which the prosecution has sought to use its superior resources to wear the defendant down by submitting the matter to successive tribunals in the hopes of securing an eventual conviction (see, generally, United States v Scott, 437 US 82, 87, supra; Swisher v Brady, 438 US 204). In short, there was no prosecutorial overreaching in the instant case, merely trial-type error by the Justice presiding in dismissing the first count rather than declaring a mistrial with respect thereto pursuant to CPL 310.70 (subd 1, par [a]). At least in the absence of an acquittal or a termination based on a ruling that the prosecution’s case was legally insufficient, no interest protected by the double jeopardy clause precludes a retrial when reversal is predicated on trial error alone (see Burks v United States, 437 US 1, 14-15, supra; cf. Sanabria v United States, 437 US 54). Thus viewed, any double jeopardy claim in the case at bar would be purely formalistic, one of the kind that has been consistently rejected of late by the United States Supreme Court. Moreover, no legitimate right of the defendant would be sacrificed by a retrial, as the dismissal herein was actually the result of an erroneous posttrial order by the Justice presiding. The trial itself terminated when the jury was unable to agree upon a verdict, and the subsequent dismissal could not alter the fact that the jury had neither found the defendant guilty of the first count, nor voted his acquittal. Both the defendant and the State are entitled to have one complete trial which terminates in a verdict, or, at the very least, a finding that the People’s case is legally insufficient to sustain a conviction. In the absence of any such finding here, and in the absence of overreaching by the prosecution (see People v Key, 45 NY2d 111, 119, supra), we hold that this defendant’s rights under the double jeopardy clause will not be offended by subjecting him to a new trial (see Swisher v Brady, supra, p 219). O’Connor, J. P., Gulotta and Hargett, JJ. concur.

* The fact that the Trial Justice may have contemplated an end to the prosecution is not, strictly speaking, determinative (see People v Key, 45 NY2d 111, 119).