After a jury was selected and sworn in Defendant's trial for various criminal offenses, the prosecutor was granted a one day continuance because his first witness had suffered a heart attack. The next day, the court stated that the witness would be unavailable for at least seven weeks. The court denied a second continuance that the prosecutor requested. The People moved for, and were granted, a mistrial over Defendant's objection. In granting the motion, the court found a mistrial manifestly necessary because of the critical nature of the witness' testimony.
On the day scheduled for the start of Defendant's second trial, he entered a plea of guilty to reduced charges. As a condition of the plea agreement, Defendant waived his right to appeal and expressly waived any double jeopardy claim.
Defendant appealed his conviction to the Appellate Division. He argued that the waiver of his right to appeal on the ground of double jeopardy was invalid, and that the trial court erred in finding manifest necessity for mistrial. The Appellate Division affirmed the conviction, holding that although the waiver was invalid, the trial court properly granted the motion for a mistrial based on manifest necessity. Thus, Defendant's double jeopardy right was never triggered. Defendant appeals that judgment.
Whether a defendant may waive the right to appeal based on a double jeopardy claim, under N.Y. Const., art. I, § 6, as a condition of a valid plea agreement.
Yes. Order affirmed.
A. Prior state of law in New York
Double jeopardy may be waived by an accused, as long as the waiver is made voluntarily and knowingly. See, e.g., People v. McQueen, 395 N.Y.S.2d 750 (N.Y.App. Div. 2d Dept. 1977); People v. Lawton, 521 N.Y.S.2d 76, appeal denied, 71 N.Y.2d 1029 ( N.Y. 1987) (finding implied consent to waive where defendant did not protest mistrial declaration due to prosecution's difficulty in finding witnesses).
The court found no statutory, constitutional, or public policy grounds to insulate the right against a double jeopardy from waiver in plea bargaining. An express waiver of double jeopardy was distinguished from established non-waivable rights (e.g. speedy trial, People v. Blakley, 34 N.Y.2d 311, 314-15 (N.Y. 1974)) because it neither causes innocent persons to plead guilty out of necessity nor conflicts with the fairness afforded to criminal defendants.
The court previously recognized that an express double jeopardy waiver may be possible. People v.Michael, 48 N.Y.2d 1 (N.Y. 1979) (suggesting such a finding for consent to retrial by defendant); People v. Ferguson, 67 N.Y.2d 383 (N.Y. 1986) (holding implied consent to retrial not barred by double jeopardy). The court does not distinguish between the express waiver of double jeopardy in this case and the implied consent to retrial in Ferguson. Therefore, the right against double jeopardy does not bar its express waiver in plea agreements.
Judge Titone suggested that the double jeopardy right is not waivable in plea agreements. However, due to the sudden and unexpected unavailability of the prosecution witness, Titone saw no merit in Appellant's claim that the double jeopardy right had been triggered by the declaration of mistrial.
The reasons that a significant societal interest in the correct outcome of double jeopardy cases exists includes protection against government overbearing, the organization of the court, impairment to criminal proceedings, People v. Voliton, 83 N.Y.2d 192 (N.Y. 1994), and the concept of justice, People v. Michael, 48 N.Y.2d 1 (N.Y. 1979).
Judge Titone found fault with the majority's waiver analysis because Ferguson concerned the validity of consent to mistrial and here, Defendant never consented to mistrial. Just as waiver of the right to a speedy trial would diminish one's ability to defend and increase the necessity of a guilty plea, the majority's holding allows the People to force Defendant to choose between a second trial and a guilty plea with waiver of the double jeopardy defense. Therefore, the People now have the power to "vitiate" the double jeopardy right.
A majority of jurisdictions parallel New York in holding that a double jeopardy objection may be waived pursuant to a plea bargain. In Novaton v. State, 634 So.2d 607 (Fla. 1994), defendant's entering into a plea bargain was held to constitute waiver. In Cox v. State, 416 P.2d 741 (Kan. 1966), the Kansas Supreme Court held that under the statute, a guilty plea is a waiver of all objections including double jeopardy. Massachusetts allowed waiver by plea bargain in Commonwealth v. Norman, 534 N.E.2d 816 (Mass. App. Ct. 1989) (citing Ricketts v. Adamson, 483 U.S. 1 (1987) without discussion).
Other states impose minimal conditions on the waiver of double jeopardy objections. Wisconsin affirmed a defendant's waiver of double jeopardy objections because "knowingly, intelligently, and expressly" made. Salters v. State, 191 N.W.2d 19 (Wisc. 1971). Oregon upheld an express waiver of double jeopardy in Oregon v. Williams, 538 P.2d 89 (Or. Ct. App. 1975).
Other states uphold double jeopardy challenges to a conviction under certain circumstances. For example, Missouri indicates that double jeopardy objections must be raised before the guilty plea unless sufficient information appears in the record to determine that a double jeopardy violation occurred. Soto v. State, 858 S.W.2d 869 (Mo. Ct. App. 1993). Although other states have held that guilty pleas waive all "non-jurisdictional" defects in the complaint, double jeopardy objections have not been considered jurisdictional and are waived. See, e.g., State v. Magill, 804 P.2d 947, 949 (Idaho Ct. App. 1991).
Finally, a minority of states explicitly prohibit waiver of double jeopardy in plea agreements. See N.M. Stat. Ann. § 30-1-10 (1995) (expressly prohibiting waiver of double jeopardy objections). Georgia has reached the same result through judicial construction in Reading v. State, 374 S.E.2d 339 (Ga. Ct. App. 1988). An Illinois appellate court has expressly held that a voluntary guilty plea does not operate as a waiver of a defendant's double jeopardy claim. People v. Billops, 466 N.E.2d 304 (Ill. App. Ct. 1984).
The protection against double jeopardy has shielded criminal defendants from the danger of arbitrary and discriminatory persecution by the government for more than two hundred years. Despite this history, double jeopardy jurisprudence is not well settled. In addition to the present issue of whether the right may be waived in a plea agreement, there are numerous other problems. See, e.g., Sarah O. Wang, Note, Insufficient Attention to Insufficient Evidence: Some Double Jeopardy Implications, 79 Va. L. Rev. 1381 (1993) (discussing the uncertainty about which events terminate original jeopardy, thus ripening the double jeopardy claim); Adam R. Fox, Note, The Ninth Circuit Renegade -- United States v. $405,089.23 U.S. Currency: Finding Double Jeopardy in a Single Coordinated Prosecution, 5:1 Cornell J. L. Pub. Pol'y (forthcoming 1995) (discussing the controversial case that finds double jeopardy where civil and criminal proceedings against a defendant for the same offense were coordinated and filed contemporaneously).
The class of non-waivable issues seems to be limited to those identified in People v. Blakley, 34 N.Y.2d 311 (N.Y. 1974) (the right to a speedy trial), People v. Francabandera, 33 N.Y.2d 429 (N.Y. 1974) (legality of court imposed sentences), and People v. Armlin, 37 N.Y.2d167 (N.Y. 1975) (defendant' s competency to stand trial). While the court's test allows for other rights to be found non-waivable, the identification of such rights is yet to be undertaken. Even the established categories may not be rigid. Blakley has been questioned by the Second Department in People v. Gooden, 542 N.Y.S.2d 757, 758-59 (N.Y. App. Div. 2d Dept. 1989). It is unclear whether the Court of Appeals is reaffirming and extending Blakley or simply failing to address the concerns in Gooden.
If the court is using the Seaberg test, "when there is no constitutional or statutory mandate and no public policy prohibiting it, an accused may waive any right which he or she enjoys," People v. Seaberg, 74 N.Y.2d 1 (N.Y. 1989), what constitutes public policy? The language of the Court would seem to indicate that only those societal concerns "which formed the basis of [their] decisions in the cases holding that a certain appellate claim is non-waivable," Allen at 2, are valid (i.e. those concerns listed in Blakley, Francabandera, and Armlin).
The concurrence suggests that allowing waiver of double jeopardy claims is tantamount to giving the People the power to vitiate the double jeopardy right. The method whereby the District Attorney might exercise this power is unclear, and the majority did not directly address the issue.
A. Clarifying waivability and its narrow exceptions
Although New York precedent established non-waivable appellate claims, such as the right to a speedy trial, see People v. Blakely, 34 N.Y.2d 311, 314-15 (N.Y. 1974), challenges to the legality of court-imposed sentences, see People v. Francabandera, 33 N.Y.2d 429, 434, n. 2 (N.Y. 1974), and the competency of the accused to stand trial, see People v. Armlin, 37 N.Y.2d 167, 172 (N.Y. 1975), the possibility of other non-waivable issues has not been precluded by the court. In Allen, the court isolates these exceptions as the recognized non-waivable claims and leaves little room for additional ones unless their correct resolution has a "larger societal interest." See People v. Callahan, 80 N.Y.2d 273, 280 (N.Y. 1992). As a result, the court's narrow exceptions have two important implications regarding plea agreements.
First, the court's interpretation of the double jeopardy defense as an individual defendant's right suggests that these waivers will be upheld as long as they are made voluntarily and knowingly. See 31 N.Y. Jur. 2d, Criminal Law § 104 (1983 & Supp. 1995). Case law has identified three interests for the defendant, namely nullification, avoiding double punishment, and finality. See Po Yin Sit, Note, Double Jeopardy, Due Process, and the Breach if Plea Agreements, 87 Colum. L. Rev. 142, 148 (1987) (citing Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 84). The U.S. Supreme Court has held the federal Double Jeopardy Clause to protect against two basic abuses: successive prosecutions and multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969). This protection effects a number of policy goals: preventing a defendant's embarrassment, expense, and uncertainty at the prospect of multiple prosecutions, and ensuring fairness and predictability of imposed punishments. See Elizabeth S. Jahncke, Note, United States v. Halper, Punitive Civil Fines, and the Double Jeopardy and Excessive Fines Clauses, 66 N.Y.U. L. Rev. 112, 134-36 (1991). In plea bargains, practitioners should expect the courts to consider such agreements as an alternative means of attaining finality, one that works in parallel with double jeopardy.
Second, the court's analysis broadly reinforces the importance of agreements between the state and criminal defendants. It suggests the court will rarely intervene to strike down a waiver as part of a plea bargain. The court recognizes the plea agreement as a "vital part of our criminal justice system." People v. Seaberg, 74 N.Y.2d 1, 7 (N.Y. 1989). Therefore, prosecutors should feel comfortable in relying on plea bargains with waivers to conserve court resources as long as defendants knowingly enter into such arrangements.
B. Double jeopardy: a Supreme Court challenge
The Court of Appeals took the Supreme Court's dicta in Menna v. New York, 423 U.S. 61, 62 (1975), that perhaps double jeopardy can be waived and gave it force in New York. This decision seems definitive in the state, since the Supreme Court has already found that double jeopardy can be waived by a knowing and voluntary waiver. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973). However, the Supreme Court still might review such a decision. In cases involving guilty pleas with waivers of appellate constitutional defenses, the Court balances the state's interest in the finality of criminal convictions, see Brody v. United States, 397 U.S. 742, 749-753 (1970), and the defendant's interest in asserting certain constitutional defenses notwithstanding his plea of guilty, see Blackledge v. Perry, 417 U.S. 21, 30-31 (1974). For further discussion, see Augustine V. Cheng, Note, Appellate Review of Double Jeopardy Claims in the Guilty Plea Context, 56 Fordham L. Rev. 983, 983-90 (1988).
In Allen, the majority focuses on non-waivable claims and society's interest in them. This approach, when combined with the view that double jeopardy is primarily an individual right, yields the reult that such claims are waivable. Only the concurring opinion asserts the balancing approach in its rejection of the waiver in order to protect core constitutional rights. While the Supreme Court has noted that double jeopardy can be effectively waived, it might review a case like Allen to clarify the approach courts should take in validating waivers of constitutional defenses.
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