OPINION OF THE COURT
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 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
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 6V2 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
“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.
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.”
ie 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. At that point,
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
The constitutional guarantee against double jeopardy safeguards the defendant’s “valued right to have his trial completed by a particular tribunal” (Wade v Hunter,
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, at p 688.) 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,
The decision to declare a mistrial necessarily rests in the broad discretion of the Trial Judge (Hall v Potoker,
Nevertheless, trial courts are not free to act without restraint. Rather, the “authority to discharge a jury from giving any verdict” is limited to those situations where “in [the trial court’s] opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” (United States v Perez, supra, at p 580.) While it may be impossible to define with precision those circumstances justifying the declaration of a mistrial (id.; Illinois v Somerville, supra, at p 462) — and, indeed, the rigid application of any mechanical formula would be invalid (Arizona v Washington, supra, at p 506; Illinois v Somerville, supra, at p 462) — still, there are some identifiable factors which are helpful in determining the “necessity” of discharging an apparently deadlocked jury.
Considering the circumstances of the present case in light of these factors, we believe that the Trial Judge did not abuse his discretion in deciding that the jury could not reach a verdict and declaring a mistrial. The trial was rather short and the issue to be resolved relatively simple. The People’s entire case took but one afternoon and the defense only several minutes the following morning. The evidence consisted of the testimony of only two government witnesses and one for defendant, and only that of the complainant was at all lengthy and detailed. Indeed, the case was a simple one involving only two straightforward counts of sodomy and assault predicated upon a single incident, and requiring the resolution of but one factual issue — i.e., the credibility of the complainant. Neither the law nor the facts were complicated or confusing, requiring any great length of time for the jury to analyze legal intricacies or sort out factual questions. Rather, there was involved but one potentially irresolvable factual issue — i.e., whether complainant’s trial testimony was believable in light of her earlier, somewhat disparate, testimony at the preliminary hearing and Grand Jury. It is not unlikely that a jury could shortly become deadlocked over a complainant’s testimony in a case such as this.
In light of the foregoing, it cannot be said that the jury’s deliberation, which lasted approximately 4xh hours excluding lunch, was per se insufficient as a matter of law. Indeed, jury deliberations lasting a similar period of time have repeatedly been held by Federal appellate courts throughout this country to be adequate under circumstances analogous to those here. (See, e.g., Nelson v District Ct., 543 F2d 631 [2½-day trial, 5½ hours deliberation];
Additionally, the Trial Judge adequately explored the genuineness of the deadlock with the jury itself. It is significant that the jury on its own initiative declared that it was hopelessly deadlocked. Presumably the jury reached a consensus before reporting to the Judge through the note presented by the foreperson. (See Arnold v McCarthy, supra, at p 1387; United States ex rel. Webb v Court of Common Pleas, 516 F2d 1034, 1044, n 56; United States v See, supra, at p 851; United States v Lansdown, 460 F2d 164, 170; United States ex rel. Russo v Superior Ct., 483 F2d 7, 16, cert den
Finally, inasmuch as the jury seemed genuinely to have reached a stalemate, it was reasonable for the trial court to
Accordingly, it cannot be said that the trial court abused its discretion in declaring a mistrial and discharging the jury, and a retrial is not barred by the constitutional or statutory guarantee against double jeopardy. The judgment of the Appellate Division should be affirmed.
Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur.
Judgment affirmed, without costs.
Notes
. CPL 310.60 provides in pertinent part:
“1. A deliberating jury may be discharged by the court withou t having rendered a verdict only when:
“(a) The jury has deliberated for an extensive period of time without agreeing upon a verdict with respect to any of the charges submitted and the court is satisfied that any such agreement is unlikely within a reasonable time”.
. The Fifth Amendment provides in part: “No person shall * * * be subject for the same offense to be twice put in jeopardy of life or limb”. While the Federal guarantee against double jeopardy was initially deemed not to be fundamental and, therefore, not applicable to the States by means of “incorporation” into the due process clause of the Fourteenth Amendment (see Palko v Connecticut,
. CPL 210.20 (subd 1) provides: “1. After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that * * * (e) The prosecution is barred by reason of a previous prosecution, pursuant to section 40.20”.
CPL 40.20 (subd 1), in turn, states: “1. A person may not be twice prosecuted for the same offense.”
. [2] The remedy of prohibition — albeit extraordinary and normally appropriate only where a judicial or quasi-judicial official or body acts or attempts to act without or in excess of jurisdiction (Matter of B.T. Prods, v Barr,