New York Family Law Blog
A New York Family Lawyer said that, in this Article 78 proceeding the petitioner, a boy 15 years of age, seeks an order prohibiting the respondent, Judges of the Family Court of the County of Kings, from re-conducting a fact-finding hearing upon the ground that to do so would place him in double jeopardy.
A New York Child Custody Lawyer said that, the juvenile delinquency petition made by a police officer, alleged in substance, on information and belief, that on November 19, 1968 the petitioner, while acting in concert with two other youths, did take and operate a Chevrolet truck, without the owner’s consent or permission, and did drive the truck across the street into two other parked vehicles, as a result of which all three vehicles were damaged. It was further alleged that the acts of the petitioner, if done by an adult, would constitute the crime of Unauthorized Use of Vehicle.
A Kings Order of Protection Lawyer said that, the fact-finding hearing, at which both sides were represented by counsel and had indicated readiness to proceed, commenced on January 14, 1969. The police officer testified that while on patrol he received information, gave chase, and apprehended the petitioner who was running on the sidewalk and took him into custody. He did not see the petitioner in the truck. Confronted with this situation the prosecutor asked the court for a moment and then said ‘After further consultation’ but he got no further. The court declared ‘All right. Mistrial.’ Petitioner objected to a mistrial. The court then continued questioning the officer who reiterated his prior testimony. Finally, the prosecutor said he was not ready, ‘That’s the way it stands now’, but added that he did have a witness to establish that petitioner was in the truck. The court said ‘One adjournment. Mistrial granted. Adjourned.’ It then developed that the missing witness was the son of the owner of the truck who was not present because he was tending to the business. The owner indicated a willingness to telephone his son to see if he was able to come down. The petitioner’s attorney stated to the court that a double jeopardy question was involved. The hearing ended with the court’s statement ‘Adjourned to 2/7/69. Mistrial granted. Police officer needs a witness.’ The court endorsed that language on the back of the petition.
A Staten Island Family Lawyer the issues in this case are whether the record presents a case of double jeopardy; second, whether the exception of ‘manifest’ or ‘imperious necessity’ is applicable; and third, whether the constitutional safeguard against double jeopardy applies to a juvenile delinquency proceeding in the Family Court.
A Staten Island Child Custody Lawyer said the respondent argues at the outset that what the court intended was an adjournment and not a mistrial and that the judge should not be bound ‘in loosely using the term ‘mistrial “. This court disagrees. The distinction between an ‘adjournment’ and a ‘mistrial’ is so fundamental, so well understood, and so well established as to require no extended discussion or even definition. What was said and done determines the matter. Three times during the hearing the court granted a mistrial, and then so endorsed the papers giving as its reason that the police officer needs a witness. And such mistrial was declared over the petitioner’s objection and direct statement that a claim of double jeopardy would be made. The so-called adjourned date was in reality the date fixed for the new hearing since the proceeding could not remain suspended in mid-air. An additional reason for granting the mistrial was to enable another judge, if necessary, to conduct the subsequent hearing de novo. This court concludes that upon this record a mistrial was declared, because ‘police officer needs a witness’.
Both the State and Federal Constitutions prevent a person from being placed twice in jeopardy for the same offense. ‘No person shall be subject to be twice put in jeopardy for the same offense’. ‘It is the law of this State that a person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction, upon an indictment or information which is sufficient in form and substance to sustain a conviction, when a jury has been impaneled and when some evidence is taken.
In a Jury case jeopardy attaches when the jury has been examined and sworn and evidence given. The federal rule is that a defendant is subjected to jeopardy after a jury has been selected and sworn but we have refused to relax our rule which requires not only that the jury be sworn but that evidence be taken. In a non-jury case, the defendant is deemed to have been placed in jeopardy when the trial commences and evidence introduced. The rationale of the rule is that in nonjury cases the taking of evidence marks the commencement of the trial. There can be no question that in this case jeopardy had attached when the police officer testified as to the apprehension and arrest of the petitioner and a conversation had with him. Thus it was required that the hearing proceed and he prosecuted to a legal determination.
The guarantee against double jeopardy in the Fifth Amendment, is by virtue of the due process clause of the Fourteenth Amendment, applicable to the states and ‘the ruling on double jeopardy case. The question then becomes whether the doctrine of manifest necessity nevertheless permits a rehearing where the mistrial has been declared to enable the prosecution to produce a witness. A mistrial can only be ordered where the circumstances are exceptional. The reason must be ‘a necessitous one, actual and substantial’. In that case the court quoted with approval, the ‘excellent’ statement of the rule given as follows: ‘I am of opinion that it is the well-settled rule that where a person is arraigned on a criminal charge, and required to go to trial before a court of competent jurisdiction, unless the trial is terminated by the disagreement of the jury, or their discharge pursuant to law, or by the consent of the accused, or through extreme or absolute necessity, as by illness or death, he has been put in jeopardy and cannot be prosecuted again in the same or another court on the same charge; and the discontinuance of the prosecution is equivalent to a discharge, for the constitutional protection grants the defendant immunity against a second trial.
The doctrine of manifest necessity, in any event, contemplates a sudden and overwhelming emergency, beyond control of the court and unforeseeable. It does not mean expediency. It is clear to this court that upon the facts here the plea of former jeopardy must be sustained. The prosecutor obviously made no effort to ascertain that the necessary witnesses were present. The inference is plain that he was wholly unfamiliar with the prospective testimony of his police officer witness. Discovery after he had called this witness that a key witness was necessary and absent furnishes no adequate excuse for a mistrial. It was not an exceptional or extraordinary circumstance. This was not a case where the key witness could not be located. His whereabouts were disclosed to the court–he was at home taking care of the business. No effort at all was made to produce him. With reasonable diligence his presence could have been secured in an hour, or a continuance granted until the following morning. The prosecutor proceeded without sufficient evidence and such discovery after he had called a witness did not justify the declaration of a mistrial nor does it warrant a rejection of the plea of former jeopardy.
The court rejects the final argument of the respondent that the double jeopardy rule is not applicable to a juvenile delinquency proceeding in the Family Court because that court is civil in nature, that the adjudication of juvenile delinquency is not a conviction for a crime, and that the purpose in that court is to protect a person and not to punish him.
It is proper to do so in such a ‘quasi-criminal’ proceeding. It makes no sense to this court that the constitutional right would be available with respect to an adult or hardened criminal but not to a juvenile. Such a view would be unrealistic despite the recognition that some of the provisions of the Bill of Rights (entitlement to bail, indictment by a grand jury, public trial or trial by jury) would not be applicable in the Family Court.
Accordingly, the court held that the petition is granted.
If you are in the same situation, seek the advice of a Kings Order of Protection Attorney and Kings Family Attorney at Stephen Bilkis and Associates. Call us now.