52 Misc. 2d 1067 | N.Y. Sup. Ct. | 1967
Defendant, under an indictment of assault, second degree (2 counts), brings on this motion for an order permitting him to amend his original plea of not guilty by adding a plea of former acquittal (Code Crim. Pro., § 332, subd. 3) and for an order dismissing the indictment on the ground that his former jeopardy of conviction of the crimes thereby charged bars his further prosecution thereunder. The motion to amend the plea in the form requested is denied, because the termination of the prior trial did not result in a judgment of acquittal (Code Crim. Pro., § 334, subd. 4) even if, as defendant contends, it involved prior jeopardy, In the absence of any statutory authorization for an appropriate form of plea, the objection is properly raised by defendant’s motion to dismiss the indictment on that ground (People ex rel. Brinkman v. Barr, 248 N, Y. 126, 129) and this latter part of the motion is considered on the merits, and denied, on the ground that the prior trial had not progressed to the point where jeopardy had attached.
The undisputed facts give rise to a single issue of law (People ex rel. Brinkman v, Barr, supra; People ex rel, Stabile v. Warden, 202 N. Y, 138, 153). It appears from the records of the court that this case came on for trial on November 21, 1966, on which date a jury was impaneled and sworn to try the issues. On November 22, 1966, after the District Attorney had opened to the jury, defendant’s counsel proceeded with his opening statement and, in so doing, made remarks which brought the District Attorney to object and, eventually, to move for a mistrial. The Trial Judge granted the motion, the jury was discharged, defendant’s counsel took exception to the ruling and a new trial date was designated. The present motion is intended to forestall that trial. I hold that in these circumstances, defendant had not
Although it is said that1 ‘ the general rule * * * is that, when a person has been placed on trial on a valid indictment or information before a court of competent jurisdiction, has been arraigned, and has pleaded, and a jury has been impaneled and sworn, he is in jeopardy” (22 C. J. S., Criminal Law, § 241, p. 637) “ the general rule in this State is that if the court has jurisdiction and all prior proceedings are valid, a prisoner is placed in jeopardy when he has been arraigned and pleaded to a valid charge, a jury has been examined and sworn, and evidence given ” (People ex rel. Meyer v. Warden, 269 N. Y. 426, 428, emphasis supplied). The New York requirement that evidence be given seems to be the “ slight variation ” from the rule in other jurisdictions, as stated in the text of the authority cited (16 C. J., p. 236)
The rule laid down in that case has since been reiterated and applied indiscriminately, both in jury trials (see, e.g., People ex rel. Blue v. Kearney, 181 Misc. 981, 984, affd. 292 N. Y. 679; People ex rel. Carlucci v. La Vallee, 11 A D 2d 553; People v. Di Marco, 19 A D 2d 150, 152; Matter of Heib v. Newberg, 24 A D 2d 691)
New York’s rejection of that distinction was reaffirmed recently in Matter of Nolan v. Court of Gen. Sess. (supra, p. 119) where the court, after quoting the applicable rule from People v. Goldfarb (152 App. Div. 870, 874, affd. 213 N. Y. 664, supra) — a nonjury case — stated that it had been referred to
. Except insofar as the earlier work reads: “ A jury have been impaneled ”, the statement of the .rule is in the identical language quoted from 22 C. J. S., p; 637.
. In both Heib and Di Marco, selection of a jury had been commenced, but not completed, when the proceedings were terminated, and the respective defendants were thereafter indicted. In Heib, the defendant resorted to an article 78 proceeding to prevent prosecution under the indictment on former jeopardy grounds and in dismissing the proceeding, the Third Department quoted the Meyer rule and noted its recent reaffirmanee in the Nolan case (11 N Y 2d 114, 119). In Di Marco, the defendant demurred to the indictment on the ground that the Grand Jury lacked jurisdiction. The Fourth Department found it unnecessary to decide whether selection of a jury was essential to a “commencement of the trial” (Code Crim. Pro., § 59) since no trial was in progress at the time of the indictment. In its discussion, the court noted that in double jeopardy cases, the rule is that “ jeopardy attaches when evidence is first received” (citing Meyer and Pearl cases) (19 A D 2d 150, 152).
, Chief Judge Crane bad meanwhile said, in People v. Peed (276 N, Y. 5, 12) that the courts had “ become so sensitive to the rights of defendants as to encourage the claim that such a motion [to dismiss an indictment for insufficiency as a pleading] made after the drawing of a jury might, if granted, give rise subsequently to a plea of former jeopardy.”