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January 9, 1990


The opinion of the court was delivered by: Elfvin, District Judge.


The abovenamed petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254 affording him release from the custody of New York's Department of Correctional Services. The Petition was referred by the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) to United States Magistrate Edmund F. Maxwell who filed a Report and Recommendation ("R & R") March 29, 1989 urging that the Petition be dismissed. No objections thereto, timely or otherwise, have been filed in this Court.*fn1 Ordinarily in such circumstances the R & R would be adopted as the opinion and order of this Court. However, inasmuch as this Court finds the Magistrate's instant determinations not fully dispositive of the merits of the Petition, this Court has conducted a de novo review.

The petitioner was initially indicted June 11, 1981 in the County Court for the County of Niagara on 340 counts of rape, sodomy, sexual abuse and endangering the welfare of a child.*fn2 Record on Appeal ("R.") at 809. Upon the close of the prosecution's case in chief, all but 140 of the charges were dismissed because of the unavailability of a key witness to testify with respect to them. R. at 807. Of the remaining 140 charges, the trial judge selected fourteen for submission to the jury as a representative sampling of the petitioner's alleged crimes pursuant to subdivision 6(b) of section 300.40 of New York's Criminal Procedure Law ("CrPL"). Ibid. The prosecution objected to the submission of representative counts because, inter alia, of the uncertainty of the status of the counts which would thereby be deemed dismissed under subdivision 7 of CrPL § 300.40. R. at 781.

The jury returned verdicts of guilty on eight of the fourteen counts and of not guilty on the other six.*fn3 R. at 804-805. On appeal the New York Supreme Court, Appellate Division, Fourth Department, reversed because of the lack of specificity of those counts of the indictment and because the trial court had, in effect, instructed the jury that it could consider crimes other than those submitted. R. at 806-808; see People v. Faux, 99 A.D.2d 654, 472 N.Y.S.2d 230 (4th Dept.), appeal denied, 62 N.Y.2d 649, 476 N.Y.S.2d 1043 (1984). The Appellate Division granted the prosecution leave to resubmit "the charges" to another grand jury but did not specify whether it thereby meant all of the 340 charges in the original indictment, or the 140 retained at the close of the prosecution's case, or the fourteen actually submitted to the jury, or merely the eight charges of which the petitioner was convicted. Ibid.

Subsequently, the petitioner was re-indicted on twenty-nine counts of rape, sodomy and sexual abuse.*fn4 R. at 10-20. He was convicted by a trial jury on all twenty-nine counts. R. at 7-9. One of these counts had not appeared in the original indictment. All of the others were previously-lodged charges revisited. The petitioner had been acquitted in his first trial on three of the renewed charges (counts 2, 4 and 8 of the new indictment) and convicted in the first trial on seven of them. The remaining counts had been among those dismissed under the operation of subdivision 7 of CrPL § 300.40 when a representative sampling of charges had been submitted to the jury.

On appeal from the verdict in the second trial, the petitioner argued inter alia that he could only be re-tried on those charges upon which he had been convicted in his first trial. See Brief for Defendant-Appellant, dated November 10, 1986. The Appellate Division reversed the petitioner's conviction on the three charges of which he had been previously acquitted,*fn5 ruling that his re-trial on such charges violated his constitutional right against double jeopardy, but affirmed his convictions on all other counts. See People v. Faux, 124 A.D.2d 20, 511 N.Y.S.2d 192 (4th Dept. 1987). The petitioner sought leave to appeal to New York's Court of Appeals, but such was denied February 6, 1987.*fn6

On the instant Petition it is argued that the right against double jeopardy precluded re-trial on the eighteen charges which had been dismissed at the petitioner's first trial pursuant to subdivisions 6(b) and 7 of CrPL § 300.40, and also that certain evidence introduced at the second trial respecting such alleged crimes (and others for which the petitioner was not re-indicted) prejudicially infected the jury's deliberations respecting the other charges in violation of the petitioner's right to due process.*fn7

The Fifth Amendment's double jeopardy clause,*fn8 which is applicable to the States under the Fourteenth Amendment — see Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) —, rests upon the deeply-rooted, Anglo-American jurisprudential premise that "a defendant should not be twice tried or punished for the same offense." United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 1020, 43 L.Ed.2d 232 (1975). This is because "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).

The double jeopardy clause has therefore been held to afford "three related protections" — viz., (1) against a subsequent prosecution for the same offense following an acquittal, (2) against a subsequent prosecution for the same offense following a conviction and (3) against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

The bar against re-trial following acquittal, whether by jury verdict or a court ruling of insufficient evidence, is unequivocal. United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977). But, where charges are dismissed without a final resolution of their merits against the accused, a subsequent trial on these charges is not necessarily precluded. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978). On the one hand, the accused has a "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949); accord, Arizona v. Washington, supra, 434 U.S. at 503 & fn. 11, 98 S.Ct. at 829 fn. 11. A second trial might be "grossly unfair" if it "increases the financial and emotional burden on the accused," or "prolongs the period in which he is stigmatized." Id., at 503-504, 98 S.Ct. at 829. But, on the other hand, the right to a single trial must "in some instances be subordinated to the public's interest." Wade v. Hunter, supra, 336 U.S. at 689, 69 S.Ct. at 837. Thus, whenever a trial judge over a defendant's objection declares a mistrial because of "manifest necessity" — Arizona v. Washington, supra, 434 U.S. at 505, 98 S.Ct. at 830 — or a defendant successfully obtains upon his own motion a termination of the trial in his favor prior to any verdict as to guilt or innocence — United States v. Scott, 437 U.S. 82, 94, 101, 98 S.Ct. 2187, 2195, 2199, 57 L.Ed.2d 65, reh. denied, 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed.2d 197 (1978) —, a subsequent prosecution does not offend the double jeopardy clause.

At the close of the prosecution's case during the first trial and after double jeopardy protections had attached — see Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975) ("In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn.") —, the trial judge had, as noted hereinabove, submitted only a selected "representative sampling" of the then-remaining 140 counts of the indictment pursuant to subdivision 6(b) of CrPL § 300.40. The petitioner argues that he was de facto acquitted on the unsubmitted charges.

To understand the petitioner's contention it is necessary to examine the statute under which a New York trial court is enabled to submit only "representative" counts to a jury. Subdivision 6 provides:

    "[T]he court is not required to submit any
  particular count to the jury when:
    "(b) The number of counts or the complexity of
  the indictment requires selectivity of counts by
  the court in order to avoid placing an unduly
  heavy burden upon the jury in its consideration of
  the case. In such case, the court may submit to
  the jury a ...

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