The opinion of the court was delivered by: PLATT
By separate orders to show cause with petitions, affidavits and other papers annexed thereto, petitioners have applied for writs of habeas corpus directing respondents to discharge them from custody forthwith and to dismiss Kings County Indictment No. 821-77 against them on the grounds that any further proceedings against them upon such indictment would subject them to be twice put in jeopardy of life or limb for the same offense in violation of the Fifth and Fourteenth Amendments to the United States Constitution.
The applications arise out of alleged "deliberate misconduct" of Mr. Justice Gerald Held in the trial of the petitioners in December, 1977, in the Kings County Supreme Court and additional alleged "deliberate misconduct" on the part of the prosecutor, Assistant District Attorney Kenneth Ramseur, at such trial.
The facts which do not appear to be in dispute since the respondents specifically referred this Court to petitioner Drayton's statement thereof are, as stated in the latter's memorandum of law, as follows:
"Petitioner Rudolph Drayton and a co-defendant, Thomas McQueen, were alleged to have robbed the owner of a laundromat outside his business establishment on August 19, 1976. Petitioner's arrest resulted from an on-the-street identification by the complainant on March 13, 1977, seven months after the incident. The joint trial on the seven count indictment began on December 9, 1977, with Hon. Gerald S. Held, Justice of the Supreme Court, presiding. The prosecution case rested solely upon the testimony of the complaining witness.
"Mr. Drayton presented an alibi defense. His medical record and the testimony of two witnesses were offered in support of his claim that he was committed to the custody of Creedmoor Psychiatric Center and was being held and treated in a secure observation ward on the date of the crime.
"As required by New York Criminal Procedure Law § 250.20 (McKinney Supp. 1977), defense counsel had served advance notice of his intention to offer this alibi evidence. In turn, he requested that the prosecution notify him if it intended to call rebuttal witnesses. The prosecutor, Assistant District Attorney Kenneth Ramseur, informed defense counsel Frank Markus and the Court that the only rebuttal witness the people intended to call was Mr. John Johnson of the ABC News network. The reporter had reported on lax security measures at Creedmoor Psychiatric Center in March, 1974, two years before the incident charged. Defense counsel vigorously contested the propriety of calling Mr. Johnson on grounds of relevance and materiality. After a hearing at which Mr. Johnson was represented by counsel, Justice Held declared that Mr. Johnson's proffered testimony was neither relevant nor material to the factual issues in dispute.
"After granting the motion to quash a defense subpoena served upon Mr. Johnson, the following colloquy ensued in which the Court suggested to the prosecutor that he seek other rebuttal witnesses. . . . The Court . . . name[d] a potential contact in the State Department of Mental Hygiene who was a personal friend and offer[ed] to provide the prosecutor with his home phone number:
THE COURT: Well, why didn't you then bring in the New York State Department of Mental Hygiene who medically conducted an investigation and I would assume took steps to correct those defects which were pointed out by Mr. Johnson's investigative series?
MR. RAMSEUR: Your Honor, I didn't have that information available to me. It was an oversight on the part of myself.
THE COURT: Well, you do now and we're not going to resume this case until eleven o'clock tomorrow morning and so, therefore, you'll have the opportunity to speak to the New York State Department of Mental Hygiene and if my memory serves me correctly, Mr. Alfred Besunder is the man to speak with on this and if you want his home telephone number, I think I could get that for you too because he happens to be a friend of mine.
MR. RAMSEUR: Can I use your name, your Honor?
THE COURT: Well, you can tell him I suggested that you call him if that's what you want to do. I have no objection to that.
MR. RAMSEUR: That's the Department of Mental Hygiene.
THE COURT: I forget his official title but he's very high up there and it's part of his jurisdiction. The State, I understand, is broken down into various mental hygiene districts and I believe he's an administrator of that district. Did you ever come across that name?
THE WITNESS [Johnson]: Yes, but I don't think he's the director but I'm not sure what his position is.
THE COURT: He's in a position to steer you in the right direction, I believe.
(Trial transcript at 298-99)
"Defense counsel objected to the presentation of alibi witnesses on the grounds that he had not been afforded notice and asked that if additional witnesses were to be called he be given the adjournment ...