Esposito v. Farrar, 28 N.Y.2d 553 (1971)
In New York, a defendant is not placed in jeopardy until the jury has been examined and sworn, and evidence has been given.
Summary
The petitioners sought to prohibit their retrial on an indictment, arguing that it would violate the double jeopardy rule because a mistrial had been declared in their first trial after the jury was impaneled and sworn. The New York Court of Appeals affirmed the denial of their applications, holding that, under New York law, jeopardy does not attach until the jury has been sworn and evidence presented. The court reasoned that the timing of when jeopardy attaches is somewhat arbitrary but necessary to prevent prosecutorial harassment and that the New York rule was still applicable.
Facts
The petitioners were indicted for robbery, grand larceny, assault, and criminally possessing a loaded pistol.
A jury was selected and sworn in Supreme Court, New York County.
After the jury was sworn, the prosecutor requested and received a continuance.
The prosecutor requested a further continuance because a complaining witness was unavailable. The court granted a continuance over the petitioner’s objection.
The prosecutor then informed the court he had not located one witness but another was present. The petitioners moved to dismiss for failure to prosecute.
The court denied the motion and declared a mistrial.
Procedural History
The petitioners sought orders prohibiting the Supreme Court from proceeding with a retrial, arguing double jeopardy.
The Appellate Division denied their applications.
The New York Court of Appeals affirmed the Appellate Division’s decision.
Issue(s)
Whether compelling the petitioners to stand trial on the indictment after a mistrial would violate the double jeopardy rule.
Holding
No, because under New York law, an indicted defendant who has pleaded not guilty is not placed in jeopardy until the jury has been examined and sworn, and evidence has been given.
Court’s Reasoning
The court relied on the established New York rule that jeopardy attaches only after the jury is sworn and evidence is presented. The court acknowledged that the precise point at which jeopardy attaches varies among states and federal courts but emphasized the importance of having a cutoff point to prevent prosecutorial harassment. It stated, “It makes little difference whether this point be regarded as having been reached when the oath is administered to the jury or when the first witness for the People is sworn. If a prosecutor were attempting to harass a defendant, he could refrain from having the jury sworn, if jeopardy attaches at that point, and whether the point is reached on swearing the jury or the first witness makes little difference in protecting a defendant’s rights.”
The court distinguished Downum v. United States, stating it does not mandate that all states have uniform rules regarding when jeopardy attaches. Instead, Downum means that once jeopardy has attached, a mistrial cannot be declared merely to obtain a witness whose presence was doubtful at the trial’s commencement.
Because no witness had been sworn in the first trial, the appellant had not been placed in jeopardy; therefore, the court did not need to determine if the mistrial was a “manifest necessity.”
The court concluded that changing the “time-honored New York rule” would not substantively impact the essence of double jeopardy, particularly as no evidence was presented in the first trial.