
    The People of the State of New York, Respondent, v Eric Michael, Appellant.
    Argued June 4, 1979;
    decided July 10, 1979
    
      POINTS OF COUNSEL
    
      Laurence J. Kaiser for appellant.
    I. The sua sponte mistrial declaration predicated solely on convenience was prejudicial error. It improperly exposed defendant to double jeopardy in violation of the United States Constitution, the New York Constitution and the Criminal Procedure Law. (Matter of Girard v Rossi, 40 AD2d 13; People ex rel. Thomas v Judges of Family Ct. of State of N. Y., County of Kings, 85 Misc 2d 569; Matter of Kim v Criminal Ct. of City of N. Y., 77 Misc 2d 740, 47 AD2d 715; United States v Gordy, 526 F2d 631; Beasley v Thomas, 379 F Supp 195, 491 F2d 507, 417 US 955; Matter of Fonseca v Judges of Family Ct. of County of Kings, 59 Misc 2d 492; People v Singletary, 54 AD2d 767; United States v Perez, 9 Wheat [22 US] 579; Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114; Matter of Ferlito v Judges of County Ct., Suffolk County, 31 NY2d 416.) II. Defendant’s double jeopardy immunity is properly before this court on appeal. (People ex rel. Pendleton v Smith, 54 AD2d 195; Illinois v Somerville, 410 US 458; Himmelfarb v United States, 175 F2d 924; Schneckloth v Bustamonte, 412 US 218; Johnson v Zerbst, 304 US 458; Carnley v Cochran, 369 US 506; Barker v Wingo, 407 US 514; United States v Estremera, 531 F2d 1103, 425 US 979; United States v Sudduth, 458 F2d 1222, 409 US 871; People v Droz, 39 NY2d 457.) III. The mistrial was directed in the absence of Mr. Michael’s counsel. This alone infringed defendant’s constitutional right of counsel particularly at this critical stage, and requires dismissal of the indictment. (People v McLaughlin, 291 NY 480; People v Al-Kanani, 31 AD2d 838, 26 NY2d 473; People v Loiacono, 40 AD2d 856; People v Sykes, 23 AD2d 701; United States v Wade, 388 US 218; United States v Sudduth, 458 F2d 1222, 409 US 871; United States v Jorn, 400 US 470; United States v Dinitz, 424 US 600; People v Medina, 44 NY2d 199.) IV. There is no basis in the record for the finding that defendant was competent to stand trial. (People v Boundy, 10 NY2d 518; Pate v Robinson, 383 US 375; People v Francabandera, 33 NY2d 429; Dusky v United States, 362 US 402; People v Valentino, 78 Misc 2d 678; People v Swallo, 60 Misc 2d 171; People v Posey, 74 Misc 2d 149.) V. The court erroneously charged the jury on the issue of defendant’s intoxication. (People v Jackson, 14 NY2d 5; People v Cook, 51 AD2d 1072; People v Trisvan, 49 AD2d 913; People v Orr, 43 AD2d 836, 35 NY2d 829; People v Carlo, 46 AD2d 764; People v Morrison, 58 AD2d 699; People v Lee, 35 NY2d 826; People v Valentine, 54 AD2d 568.)
    
      Robert M. Morgenthau, District Attorney (Donald J. Siewert and Robert M. Pitler of counsel), for respondent.
    I. Appellant’s guilt was established beyond a reasonable doubt. II. Appellant’s claim that the Trial Judge abused his discretion in declaring a mistrial is not properly before this court. In any event, the mistrial was necessitated by the absence of appellant’s counsel. Appellant was therefore not subjected to double jeopardy in being retried. (People v La Ruffa, 37 NY2d 58, 423 US 917; Menna v New York, 423 US 61; United States v Perez, 565 F2d 1227; People ex rel. Pendleton v Smith, 54 AD2d 195; People v Patterson, 39 NY2d 288; People v Berrios, 28 NY2d 361; People v Esajerre, 35 NY2d 463; Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114; Matter of Napoli v Supreme Ct. of State of N. Y., 40 AD2d 159, 33 NY2d 980, 417 US 947.) III. Appellant was not deprived of the assistance of counsel below. (People v Kelly, 60 AD2d 220, 44 NY2d 725.) IV. The Trial Judge’s refusal to permit the jury to consider evidence of appellant’s intoxication on the counts of rape and sodomy was proper. There was insufficient evidence to support an intoxication charge on these counts. Even if the Judge’s refusal to instruct the jury that they might consider appellant’s intoxication on the rape and sodomy charges was incorrect, appellant was not prejudiced by the error. (Dudley v Nowill, 11 App Div 203; People v Yannucci, 283 NY 546; People v Vicaretti, 54 AD2d 236; People v Koerber, 244 NY 147; Henry v United States, 432 F2d 114, 434 F2d 1283, 400 US 1011; People v Orr, 43 AD2d 836, 35 NY2d 829; People v Morrison, 58 AD2d 699; People v Kastenhuber, 57 AD2d 655.) V. The finding at appellant’s first trial that he was competent to stand trial was supported by the record. (People v Carl, 58 AD2d 948, 46 NY2d 806; People v Francabandera, 33 NY2d 429; People v Valentino, 78 Misc 2d 678; People v Santos, 43 AD2d 73.)
   OPINION OF THE COURT

Per Curiam.

Defendant raises a substantial double jeopardy claim and seeks reversal of an order of the Appellate Division which affirmed his conviction, upon a second trial, of several counts of robbery, burglary, rape and sodomy arising from an incident which occurred in Manhattan on April 25, 1975. Defendant was first put on trial for these crimes in July of 1975, together with one France Dugne, also accused of participating in the same criminal activities. During the course of that trial, the court sua sponte declared a mistrial as to defendant Michael, without obtaining his consent and in the absence of his counsel, because of certain circumstances discussed in detail below. Defendant now contends that the retrial which resulted in the convictions which he now seeks to have overturned was barred by application of the prohibitions against double jeopardy contained in our State and the Federal Constitutions (NY Const, art I, § 6; US Const, 5th Arndt). As we are persuaded that defendant’s arguments are correct, it is our unpleasant duty to reverse the order appealed from and order that the indictment charging defendant with these serious crimes of violence be dismissed solely because of the trial court’s abuse of its authority to declare a mistrial.

Before discussing the merits of defendant’s double jeopardy defense, we must first determine whether it presents a question of law reviewable by this court. In criminal cases the Court of Appeals, unlike the Appellate Divisions, may only review questions of law, except in capital cases (compare CPL 470.35 with CPL 470.15 and CPL 470.30). CPL 470.05 (subd 2) provides that "[fjor purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. * * * In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered”. Defendant Michael failed to raise any double jeopardy claim before or at trial, and instead sought to raise it for the first time on appeal. Hence, his claim does not present a question of law reviewable in this court unless it falls within the small group of claims so fundamentally basic that they constitute questions of law for purposes of our review despite the failure to raise them in a timely manner.

There exist certain narrowly drawn exceptions to the general rule that a timely objection or request is necessary to create a question of law reviewable by this court, for certain principles of law are deemed so fundamental to our criminal justice system that a claimed violation of those principles creates a question of law despite the failure to timely raise that claim in the courts below (see People v Patterson, 39 NY2d 288, 294-296, affd 432 US 197). The requirement that a claim must be timely raised in order to create a question of law is grounded in large part in the need to preserve limited judicial resources and avoid untoward delay in the resolution of criminal proceedings. Certainly, every defendant must be provided at least one opportunity to assert any defense or any claim that the proceedings against him are in some way tainted by a violation of the law. At the same time, the very real interest of the State in achieving finality in a criminal prosecution mandates that such objections be timely raised. Any other rule would serve as an invitation to delay and could result in an unmanageable morass of collateral proceedings within each prosecution. Hence, it is both proper and necessary for the State to require that all such objections be raised at a time when they can be dealt with most readily. At the same time, there exist certain rules of law, be they founded on the common law, prescribed by statute, or mandated by our Constitutions, which are so basic to the validity of a criminal proceeding that the failure to observe such a rule may be raised at any time during the appellate process.

Turning now to the exigencies of the instant appeal, we must first determine whether a claim that the constitutional prohibitions against double jeopardy have been violated poses a question of law reviewable in this court despite the failure to raise that defense before the trial court. We conclude that it does, for double jeopardy implicates the very power of the State to prosecute a particular defendant for a particular crime and serves as an important check on the potential power of the State to intimidate its citizenry. The constitutional prohibition against double jeopardy is fundamental not only to the process of criminal justice, but to our system of government itself. It is, moreover, a doctrine with obvious jurisdictional overtones. That this is so at least in this State is strongly suggested by the fact that double jeopardy is a traditional ground for obtaining the extraordinary remedy of prohibition (e.g., Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114), which normally lies only where there is an attempt to act without or in excess of jurisdiction (see Matter of B. T. Prods. v Barr, 44 NY2d 226, 231; La Rocca v Lane, 37 NY2d 575; Note, Writ of Prohibition in New York — Attempt to Circumscribe an Elusive Concept, 50 St John’s L Rev 76). Although a double jeopardy objection may be waivable (see Menna v New York, 423 US 61, 63, n 2; People v La Ruffa, 37 NY2d 58, cert den 423 US 917) in certain unusual cases, as where a defendant explicitly consents to retrial despite a double jeopardy defense, double jeopardy nonetheless has strong ties to the concept of jurisdiction, and that, taken together with the significance of the prohibition as a bulwark against governmental overbearing, compels us to hold that a double jeopardy defense based on the State and Federal Constitutions poses a question of law reviewable in this court despite the failure to raise it at the trial level. This conclusion is supported by an examination of the double jeopardy defense in light of the rationale supporting the general rule requiring that an issue be timely raised: namely, the avoidance of unduly prolonged proceedings and the possibility of repeated trials. The State’s legitimate interests are not seriously touched by allowing a constitutional double jeopardy claim to be raised for the first time on appeal, since such a claim, even if successful, will not result in repeated proceedings, as it is the very essence of a successful double jeopardy defense that there are no further proceedings. Similarly, there will be no need for any additional factual findings in such cases, as such a defense is made out from the record of the prior proceedings and entails no factual inquiry. Finally, double jeopardy does not constitute the type of error which can be remedied so as to allow the trial to proceed in accordance with law if it is timely raised, for such a defense, if valid, is simply not correctable.

Having determined that defendant’s constitutional double jeopardy claim does present a question of law reviewable by this court, we next turn to the merits of that defense. The factual basis for defendant’s argument is both simple and sad. One morning several days after the commencement of defendant’s first trial, the court received a phone call from the office of defendant’s attorney, notifying the court that the attorney’s father had died unexpectedly during the night and the attorney would be unable to appear in court that day. When the case was called, the court informed the prosecutor and counsel for the codefendant of this problem, and asked their advice. The prosecutor suggested that the case be adjourned until defendant’s counsel could return. The court stated that it would instead probably declare a mistrial since it was impossible to continue the trial in the absence of defense counsel, and an adjournment was not feasible because the trial had to terminate by the end of the week since the court and several members of the jury had made vacation plans for the following week. It was then Tuesday, and the court was of the opinion that even a single day’s delay would make it impossible to complete the trial by that Friday. Accordingly, it believed a mistrial to be necessary at least as to this defendant. The court apparently also considered declaring. a mistrial as to the codefendant as well, because it was possible that even though the trial could continue apace against him it too might not be completed by Friday. Eventually, however, the court decided to continue the trial as to codefendant in the hope that it would indeed end by Friday, but to declare a mistrial as to defendant Michael. During this discussion, in which the defendant had no part, both the prosecutor and counsel for the codefendant suggested to the court that to declare a mistrial might create a double jeopardy problem. The court’s initial reaction to this possibility was to tell the prosecutor that that was the People’s problem, not the court’s, and to criticize the prosecutor for not having accepted defendant’s offer to plead guilty to a lesser charge instead of "wasting” the court’s time with a trial. Subsequently, the court indicated that it believed there would be no double jeopardy problem because it was impossible to continue with the trial.

Defendant was ultimately retried and convicted. The Appellate Division affirmed his conviction, without opinion, and leave to appeal was granted by an Associate Judge of this court. While defendant raises several claims of error, we deem it necessary to consider only his double jeopardy argument for our recognition of the validity of that defense mandates a dismissal of the charges against defendant. Accordingly, we do not reach his other arguments.

Where a court declares a mistrial without obtaining the defendant’s consent the double jeopardy provisions of both our State Constitution and the Federal Constitution prohibit retrial for the same crime unless "there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated” (United States v Perez, 9 Wheat [22 US] 579, 580; accord Matter of Nolan v Court of Gen. Sessions of County of N. Y., 11 NY2d 114, 119, supra). These principles have to some extent been codified in CPL 280.10 (subd 3), which allows a court to declare a mistrial on its own motion only "when it is physically impossible to proceed with the trial in conformity with law”. Since the Trial Judge is in the best position to determine whether a mistrial is in fact necessary in a particular case, that court is entrusted with discretion in this area, and deference is to be accorded the Trial Judge’s decision to declare a mistrial (Matter of Napoli v Supreme Ct. of State of N. Y., 33 NY2d 980, affg on opn below 40 AD2d 159; Arizona v Washington, 434 US 497, 513-514; Gori v United States, 367 US 364).

Nonetheless, a mistrial founded solely upon the convenience of the court and the jury is certainly not manifestly necessary. While the court could not have continued defendant’s trial in the absence of defense counsel, a delay of several days would certainly appear to have been reasonable, despite any inconveniences it might have imposed upon the court and some jurors. Rather than considering this alternative seriously, the court sua sponte and unfortunately declared a mistrial. That decision constituted an abuse of discretion. A defendant’s right to have his fate determined as expeditiously as possible and by the first jury to which the case is presented is a basic one, and may not be set aside without strong reason. While it is unfortunate that the travel plans of the court and several jurors might have been disrupted, such inconvenience is a necessary part of our criminal justice system. One who accepts the responsibility of the robe must be prepared at times to put aside his or her own desires and plans in response to the call of public duty. Weighed in the balance of judicial obligations, a necessary change in travel plans is of little significance.

Similarly, a citizen called to jury duty will often be required to make some personal sacrifices, financial or otherwise. This usually seems unjust to those so called upon, and in fact it sometimes is unjust, but it is necessary as long as we are to persist in our cherished belief that an accused felon is entitled to be tried by a jury of his peers. This does not mean that juror discontent will never justify a mistrial. Indeed, if a jury becomes biased against a defendant as a result of the length of the trial or for some other reason, and is unable to fairly consider that defendant’s guilt or innocence, the court is then required to declare a mistrial. Such cases, however, are rare, for a distinction must be drawn between the ordinary pique of a juror at being forced to postpone his or her normal pursuits, and that inability to fairly view the evidence which mandates a mistrial. Most jurors will remain faithful to their oath and put aside their personal grievances in the attempt to reach a fair verdict. Were this not so, the jury system would be a mockery, for there are few jurors who would not prefer to be elsewhere.

The decision whether a mistrial is necessary because of juror bias if often based on subtle indications of discontent, not always apparent on the cold face of the record presented to an appellate court. Hence, as is noted above, a Trial Judge is entrusted with considerable discretion in making such determinations, for it is the Trial Judge, better than any other, who can detect the ambience of partiality. In such cases, moreover, it is often better to err on the side of caution, for retrial is a lesser evil than conviction by a biased jury. The court’s discretion in making such decisions, however, is not unlimited. Where, as here, the decision to declare a mistrial is based solely on the fact that a delay in trial would inconvenience the court and the jury, and without any inquiry into the effect of such a delay on the jury’s ability to render a fair verdict, discretion falters and abuse appears.

In short, our examination of the trial record persuades us that it was not at all necessary to declare a mistrial at the time that decision was made, although it is not inconceivable that a mistrial might have eventually become a necessity had defense counsel’s absence continued unduly. Hence, the retrial of this defendant for the same crimes was prohibited by the Constitutions of both New York and the United States, and these constitutional prohibitions against double jeopardy mandate reversal of defendant’s conviction and dismissal of the indictment.

Accordingly, the order appealed from should be reversed and, perforce, the indictment should be dismissed.

Jasen, J.

(dissenting). I would affirm the order of the Appellate Division on the ground that defendant, in not asserting the defense of constitutional double jeopardy prior to or during his second trial, in effect "waived” this personal defense (People v La Ruffa, 37 NY2d 58, cert den 423 US 917) by failing to preserve an issue of law reviewable by this court. (CPL 470.05, subd 2; People v Iannone, 45 NY2d 589, 600.)

As we recently stated in People v La Ruffa (37 NY2d 58, 60-61, supra) in reaffirming a deeply rooted body of case law, both State and Federal, the "constitutional immunity from double jeopardy is a personal right which if not timely interposed at trial may be waived (e.g., Kepner v United States, 195 US 100, 131; United States v Perez, 565 F2d 1227, 1232; United States v Young, 503 F2d 1072, 1074; United States v Conley, 503 F2d 520, 521; United States v Scott, 464 F2d 832, 833; United States v Buonomo, 441 F2d 922, 924, cert den 404 US 845; Grogan v United States, 394 F2d 287, 289, cert den 393 US 830) and which likewise may be forfeited by a plea of guilty (Cox v State of Kansas, 456 F2d 1279, 1280; Kistner v United States, 332 F2d 978, 980; United States v Hoyland, 264 F2d 346, 351, cert den 361 US 845; Berg v United States, 176 F2d 122, 125, cert den 338 US 876; Caballero v Hudspeth, 114 F2d 545, 547). Such has long been the law in this State as well. (Former Code Crim Pro, §§ 332, 339; CPL 210.20; see People v Cignarale, 110 NY 23, 29; People ex rel. Williams v Follette, 30 AD2d 693, affd 24 NY2d 949; People v Lynch, 40 AD2d 856; People v Allen, 18 AD2d 840.)”

Today, the majority without paying so much as lip service to principles of stare decisis (see Baden v Staples, 45 NY2d 889; People v Hobson, 39 NY2d 479), blithely casts aside this body of law in holding that defendant’s claim of double jeopardy presents a question of law reviewable by this court notwithstanding his failure to assert this defense either prior to or during the course of his second trial. To accomplish this task, the majority strains to force the defense of double jeopardy into a narrowly drawn exception to our State preservation requirement carved from the general rule to permit appellate review, notwithstanding the absence of timely objection, of an alleged violation of certain principles of law deemed fundamental to the administration of criminal proceedings. Support for this unenviable task, apparently culled from People v Patterson (39 NY2d 288, affd 432 US 197), is misplaced.

In Patterson, we characterized the narrow exception to the preservation requirement mandated by statute (CPL 470.05, subd 2) as encompassing claimed errors which affect the organization of the court or the mode of proceedings prescribed by law. (39 NY2d, at p 295, supra.) As examples of this type of error, we pointed to the trial of a defendant before a jury of less than 12 members (Cancemi v People, 18 NY 128), and prosecution by information of an "infamous” crime where the State Constitution guaranteed such prosecution only by Grand Jury indictment (People ex rel. Battista v Christian, 249 NY 314). A claim of double jeopardy, although conceptually related to jurisdiction, does not go to either the organization of the court nor its mode of proceedings and, thus, is not reviewable in this court absent a timely objection in the trial court. Nothing in Patterson suggests that we intended to depart from our implicit holding in La Ruffa to this effect.

Nor does the majority demonstrate any sound reason for such departure. As we stated in Patterson, "[sjtrict adherence to the requirement that complaint be made in time to permit a correction serves a legitimate State purpose. (Henry v Mississippi, 379 US 443, 447.) A defendant cannot be permitted to sit idly by while error is committed, thereby allow the error to pass into the record uncured, and yet claim the error on appeal. Were the rule otherwise, the State’s fundamental interest in enforcing its criminal law could be frustrated by delay and waste of time and resources invited by a defendant.” (39 NY2d, at p 295, supra.) In this regard, the majority’s contention that the State’s legitimate interests are not seriously affected by permitting assertion of a double jeopardy claim for the first time on appeal because, if successful, a defendant will not put the State to the task of retrying him a third time misses the point. Had the defendant in this case raised the claim of double jeopardy successfully at his second trial, the State would not have needlessly expended its time and money trying him a second time. It is just such delay and waste of time and resources, as well as inconvenience of witnesses, which the requirement that a defendant timely object to claimed error in the trial court was intended to obviate.

Finally, to preclude defendant from raising his claim in this court does not impermissibly impair his constitutional right not to be twice placed in jeopardy. In People v La Ruffa (37 NY2d 58, cert den 423 US 917, supra), we predicated our decision on two closely related, but conceptually distinct, grounds: first, that the defendant waived his constitutional defense of double jeopardy by failing to raise it prior to pleading guilty; and, second, that in not timely asserting this defense he in effect "waived” it by failing to preserve an issue of law reviewable by this court. In Menna v New York (423 US 61), the Supreme Court held that a defendant who unsuccessfully raises a defense of double jeopardy prior to pleading guilty does not, without more, waive his right to assert that claim thereafter. Although Menna does preclude a finding in the instant case that defendant waived his defense of constitutional double jeopardy in the sense of a knowing abandonment of this claim (see Johnson v Zerbst, 304 US 458), the Supreme Court’s denial of certiorari in La Ruffa (423 US 917), while certainly not unequivocal in significance, permits the inference that the court found constitutionally unobjectionable our holding in La Ruffa that the defendant in effect "waived” his double jeopardy claim by failing to raise timely this issue and thereby preserve an issue of law reviewable by this court. I see no valid reason for departing from that holding today.

Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Cooke and Judges Gabrielli, Fuchsberg and Meyer concur in Per Curiam opinion; Judge Jasen dissents and votes to affirm in a separate opinion in which Judges Jones and Wachtler concur.

Order reversed, etc. 
      
      . It has been suggested that by failing to raise his double jeopardy claim at the trial level defendant waived that defense. While the question of waiver as a practical matter is often inextricably intertwined with the determination whether a defendant has preserved a question of law reviewable by this court, the two inquiries are conceptually distinct (see People v Iannone, 45 NY2d 589, 600). Whether a question of law reviewable in this court exists in a particular case is peculiarly a matter of State law, involving as it does limitations upon the powers of this court. While the same could well be said of the issue of waiver of any claim founded solely upon the New York State Constitution, questions concerning waiver of a right guaranteed under the Federal Constitution are essentially matters of Federal law. The Supreme Court of the United States has quite clearly held that a guilty plea, which constitutes a waiver of many other rights and privileges, may not serve as a waiver of a double jeopardy claim (Menna v New York, 423 US 61). Since the failure to raise a particular defense is a much more equivocal indication of intent than is the decision to plead guilty, it would appear to follow that the failure to timely raise a double jeopardy claim cannot alone serve as a waiver of that claim.
     
      
      . We note that this conclusion does not conflict with our holding in People v La Ruffa (37 NY2d 58, cert den 423 US 917). In that case we were concerned solely with the question whether a guilty plea could constitute a waiver of a double jeopardy claim. Our holding in that case was not based on the purported absence of a question of law, as is now suggested by the dissent. Indeed, implicit in our holding in La Ruffa is the suggestion that a question of law is presented by a constitutional double jeopardy claim even if that claim was not timely raised, for we could not have reached the question of waiver had the case not presented a question of law. In short, had La Ruffa’s double jeopardy claim not constituted a question of law reviewable in this court, the discussion of waiver in that decision would have been irrelevant to the disposition of that appeal.
     