Opinion
November 30, 1970
Appeal by the People from an order of the Supreme Court, Westchester County, dated May 1, 1969, which granted defendant's motion during trial to dismiss the indictment as insufficient in law. Order affirmed. No opinion. Christ, P.J., Hopkins, Latham and Brennan, JJ., concur; Munder, J., dissents and votes to reverse the order, reinstate the indictment and order a new trial, with the following memorandum: Defendant was charged in a short form indictment with having committed the crime of coercion in violation of section 530 of the former Penal Law. He made a pretrial motion for a bill of particulars seeking, inter alia, (a) the name or names of the person or persons it was claimed he had threatened or coerced, (b) the words or actions of his that it was claimed constituted the crime and (c) the date and time when and the place where the crime was allegedly committed. He also requested particulars with respect to other items which need not be set forth since it is the consensus of this court that he was not entitled to them. The District Attorney agreed to furnish the particulars requested in (a) and (c), except as to the time of the commission of the alleged crime, and otherwise opposed the motion. The County Court, Westchester County, granted the motion as to items (a) and (c), other than the time of the commission of the alleged crime, and denied it as to all other particulars. This was implemented by an order dated September 5, 1967. The bill of particulars as so limited by the court was filed and served by the District Attorney on or about September 28, 1967. On April 30, 1969, the case came on for trial in the Supreme Court, Westchester County. After the jury was sworn and both sides made opening statements, the People's first witness testified to some factual background with respect to his business. At that point defense counsel interrupted the examination and moved to dismiss the indictment for insufficiency. The trial court granted the motion on the ground that the short-form indictment, even when read in conjunction with the bill of particulars, failed to state facts sufficient to spell out the crime of coercion. Prior to the dismissal, the Assistant District Attorney requested permission to file a further bill of particulars supplementing the existing one. Defendant objected and the Trial Justice disregarded the prosecutor's request, stating that his ruling rendered the question academic. It is from the order of dismissal that the People appeal. In my opinion, the trial court erred in denying the People's request for permission to file a further bill of particulars and in dismissing the indictment. I agree that the bill of particulars was insufficient because it did not adequately apprise defendant of the manner in which the alleged coercion had been committed. I think that item (b) of defendant's demand was proper to the extent that it sought such information. However, in view of the prior ruling that the People need furnish only the particulars requested in items (a) and (c), the insufficiency of the bill for failing to furnish the details with respect to item (b) was a matter for review by an appellate court on an appeal from a judgment of conviction if that resulted. The Trial Justice, in dismissing the indictment for the reason given, in effect, overruled the prior decision of a Judge of co-ordinate jurisdiction and acted in an appellate capacity. It is basic that a prior decision establishes the law of the case to be adhered to by Judges of co-ordinate jurisdiction. The rationale of the rule is to avoid protracted litigation, promote harmony and foster the exercise of comity and courtesy ( Matter of Hines, 88 F.2d 423, 425; People ex rel. Manceri v. Doherty, 192 N.Y.S.2d 140; George W. Collins, Inc. v. Olsker-McLain Ind., 22 A.D.2d 485; Field v. Public Administrator of County of N.Y., 10 A.D.2d 97; Mutual Life Ins. Co. of N.Y. v. 160 East 72nd St. Corp., 272 App. Div. 48; cf. People v. Lenti, 46 Misc.2d 682, 685). In Collins ( supra), the Fourth Department held that the decision of Special Term established the law of the case whether or not a formal order was entered (citing Bannon v. Bannon, 270 N.Y. 484, 489-493, and Walker v. Gerli, 257 App. Div. 249). The court further stated ( supra, p. 489) that the "decision was therefore binding upon all courts of coordinate jurisdiction and they may not arrogate to themselves powers of appellate review". At bar since the People could have amended the indictment or bill of particulars at the trial (Code Crim. Pro., § 295-j), their request should have been granted in the interests of justice. The refusal to do so, in view of the prior ruling on the bill of particulars, in my opinion, constituted an abuse of discretion. In conclusion, I note that by timing his motion to dismiss as he did, defense counsel laid the basis for a claim of double jeopardy in case this court would reinstate the indictment. He waited until the jury was impanelled and a witness was called. However, it is clear the dismissal was not based on the evidence, or insufficiency thereof, because in fact no real evidence had been introduced. The dismissal was granted, at the request of defendant, because as a matter of law the indictment could not support any judgment of conviction. Under these circumstances, I do not believe a claim of double jeopardy has merit. At the time the Code of Criminal Procedure was amended to permit the People to appeal in a situation as at bar (Code Crim. Pro., § 518, subd. 3), the Judicial Council noted that it "believed that this change would be constitutional, although a question of double jeopardy exists" (see Eighth Annual Report of N.Y. Judicial Council, 1942, p. 63; see, also, Fifth Annual Report, 1939, p. 41). The question of double jeopardy has not been answered by our Court of Appeals and is therefore still open (see Matter of Kraemer v. County Court of Suffolk County, 6 N.Y.2d 363, 369). I agree with the Judicial Council that subdivision 3 of section 518 is constitutional (see, generally, 1 Wharton's, Criminal Law, §§ 395, 397). Accordingly, I conclude that (1) the order should be reversed, (2) the People directed to file and serve a further bill of particulars and (3) a new trial ordered.