The opinion of the court was delivered by: PLATT
Petitioner seeks a writ of habeas corpus and a stay of an allegedly imminent retrial of a criminal action against him in the Supreme Court, Kings County, on the ground that such retrial would violate his constitutional right not "to be twice put in jeopardy" for the same offense and his constitutional right to due process of law under the Fifth Amendment to the United States Constitution.
In an indictment returned in 1977, petitioner was charged with the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees and on January 31, 1978, a jury trial commenced. At the trial the People presented evidence that petitioner sold a quantity of cocaine to an undercover police officer and petitioner presented four alibi witnesses.
The jury commenced its deliberations at approximately 2:00 p.m. on February 20, 1978, and at 5:00 p.m. it advised the Court that it was hopelessly deadlocked whereupon the Court (Beldock, J.) delivered a "modified Allen charge" and sent the jury back for further deliberations. The jury was sequestered overnight and deliberated during the entire day on February 21 until 4:30 p.m. at which time it sent the Court a second note indicating that it was hopelessly deadlocked and again the Court delivered a "modified Allen charge" and sent the jury back for further deliberations.
A communication written at 6:05 p.m. and apparently revealed in open court after dinner at approximately 8:00 p.m. indicated that the jury had reached a verdict. In open court the foreman announced that the jury had found the petitioner not guilty on all counts but juror number eight, Miss Janice E. Ferguson, apparently shook her head negatively throughout the announcement which caused the prosecutor to request that the jury be polled pursuant to New York Criminal Procedure Law § 310.80. Upon being polled Miss Ferguson stated that the announced verdict was not her verdict and then volunteered the following pertinent comments:
"MISS FERGUSON: I will tell you what happened. I was badgered personally.
MISS FERGUSON: Do you want to hear what I have to say? I think the system is good as far as it goes. After a certain number of hours of deliberation we in good faith can go over the testimony. But after a certain point I found I was being badgered. It becomes personal, very vicious. Finally I got to the point where I frankly said sarcastically whatever you want me to say, count me in. If you want me to say this, count me in, knowing full well they knew it was sarcastic. And a vote was taken, fine. But if polled individually, I am not going to lie here."
On hearing this, the Court stated that it felt it had "no choice but to discharge this jury at this point." Defense counsel objected and at a side bar conference requested that the jury be sent back for further deliberations claiming that the jury had not indicated it was hopelessly deadlocked. Thereupon the Court asked the foreman whether there was any point "to my sending you back inside for further discussion of this matter in any way" to which the foreman replied "none whatsoever". Under persistent pressure from the defense counsel the Court then said "so there will be no mistakes, go back into the jury room and discuss among yourselves" at which point the jurors requested that they be polled on this question. The Court then asked each juror whether there was "any way you can arrive at any kind of a verdict" and each juror replied in the negative. Only after all of this colloquy did the Court declare a mistrial and discharge the jury.
It is also significant to note that in the Court's colloquy with Miss Ferguson she stated that she had "made it very clear at the time that I was going along because I had been badgered and brow beaten. That was very clear to every other member in the jury room. They had me in tears. I still held on . . ."
Petitioner then sought to bar commencement of a second trial in an Article 78 proceeding in the Appellate Division, Second Department, claiming double jeopardy and this application was denied on June 16, 1978, by the Appellate Division, without opinion. Thereafter, petitioner sought permission to appeal to the New York Court of Appeals and leave to appeal was denied on September 21, 1978.
Petitioner claims that double jeopardy arises in this case because the trial court failed to comply with the provisions of § 310.80 of the New York Criminal Procedure Law pertaining to the recording of the verdict and polling of the jury which provides as follows:
"After a verdict has been rendered, it must be recorded on the minutes and read to the jury, and the jurors must be collectively asked whether such is their verdict. Even though no juror makes any declaration in the negative, the jury must, if either party makes such an application, be polled and each juror separately asked whether the verdict announced by the foreman is in all respects his verdict. If upon either the collective or the separate inquiry any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to resume its deliberation. If no disagreement is expressed, the jury must be discharged from the case, except as otherwise provided in sections 125.30 and 125.35 of the penal law."
His argument is that the foregoing statute conclusively establishes that there was no "manifest necessity" for the declaration of a mistrial under the rule established in the United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L. Ed. 165 (1824), and followed consistently by the United States Supreme Court in Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834, 93 L. Ed. 974 (1949); Green v. United States, 355 U.S. 871, 78 S. Ct. 122, 2 L. Ed. 2d 76 (1957); Gori v. United States, 367 U.S. 364, 81 S. Ct. 1523, 6 L. Ed. 2d 901 (1961); Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963); United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971); Illinois v. Somerville, 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066 (1973); United States v. Dinitz, 424 U.S. 600, 96 S. Ct. 1075, 47 ...