THE PEOPLE &C., RESPONDENT, v. JOSE ADAMES, APPELLANT.
83 N.Y.2d 89, 629 N.E.2d 391, 607 N.Y.S.2d 919 (1993).
December 21, 1993
1 No. 266 (1993 NY Int. 276)
Decided December 21, 1993
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Arthur H. Hopkirk, for Appellant.
Sylvia Wertheimer, for Respondent.
BELLACOSA, J.:
This appeal, on a grant of leave to defendant by a Judge of this
Court, presents a narrow question. The case, which has generated a
constitutional double jeopardy claim, has traveled an unusual
procedural path. At defendant's first trial, the court reserved
decision on defendant's motion for a mistrial based on prosecutorial
misconduct. The case proceeded to a jury verdict of guilt, which was
subsequently vacated by the trial court. Defendant next moved on
double jeopardy grounds to dismiss the indictment and prevent his
retrial. This motion was denied and defendant was again found guilty
by a second jury of criminal sale and possession of a controlled
substance in the third degree. We now affirm the order of the
Appellate Division upholding that conviction.
Particularly in the procedural circumstances pertinent to this case,
constitutional double jeopardy principles are not implicated. The
corrective action for prosecutorial trial misconduct should ordinarily
not vary whether a verdict is nullified by a trial court or by an
appellate court. The usual, complementing relief in such circumstances
includes the allowance of a retrial. Some prosecutorial error may be
so egregious or provocative as to warrant the interposition of the
double jeopardy bar, even when no mistrial is granted, but that is not
this case (see, e.g., Matter of Potenza v Kane, 79 AD2d 467, 470;
compare, Matter of Randall v Rothwax, 78 NY2d 494). Such egregious
cases might evoke an exceptional circumstances approach to the general
remedial relief which allows for retrial, but we leave that question
for another day and an appropriate case. We hold here only that
retrial was appropriate to this procedural setting.
I.
SNIPPETS:
This appeal, on a grant of leave to defendant by a Judge of this Court, presents a narrow
The case, which has generated a constitutional double jeopardy claim, has traveled an unusual
the court reserved decision on defendant's motion for a mistrial based on prosecutorial
This motion was denied and defendant was again found guilty by a second jury of criminal sale
We now affirm the order of the Appellate Division upholding that conviction.
The corrective action for prosecutorial trial misconduct should ordinarily not vary whether a
Some prosecutorial error may be so egregious or provocative as to warrant the interposition
Such egregious cases might evoke an exceptional circumstances approach to the general
At the time of arrest, no "buy money" or drugs were found on the defendant.
On cross-examination, the prosecutor asked the co-defendant whether he had told the arresting
The Trial Judge sustained defendants' objections and cautioned the jury about this
After the Trial Judge firmly admonished the prosecutor and explained the ruling,
The Trial Judge sustained an objection to the word "uncontroverted," stating that "t is not a
The court vacated the verdict because of the persistent prosecutorial misconduct in the
However, in denying defendant-appellant's ensuing motion to dismiss the indictment on double
The Appellate Division affirmed the conviction, also rejecting defendant-appellant's double
Appellant's proposed rule --acknowledged as a significant change in approach -- would bar
The People essentially urge adoption of the Federal rule, under which no double jeopardy bar
The trial court's candid acknowledgement of inadvertent error and attempt to rectify the harm
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