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COUNTY COURT JUDGE DID NOT HAVE THE AUTHORITY TO ISSUE A VERDICT BASED UPON THE REVIEW OF THE TRANSCRIPT OF THE PRIOR NON-JURY TRIAL WHICH HAD BEEN HELD BEFORE A DIFFERENT JUDGE AND REVERSED 3RD DEPT.

The Third Department, reversing the conviction and ordering a new trial, determined the judge to which the previously tried (and reversed) case had been reassigned, did not, pursuant to the Judiciary Law, have the power to issue a verdict based upon a review of the transcript of the prior non-jury trial. Manifest necessity required a mistrial. New trial will not violate double jeopardy rule:

As is relevant here, Judiciary Law § 21 provides that a trial judge “shall not decide or take part in the decision of a question, which was argued orally in the court, when he [or she] was not present and sitting therein as a judge.” This statute has been interpreted to allow a substitute judge to preside over an already-commenced jury trial or decide a purely legal question, but it prohibits a substitute judge from weighing testimony or making factual and credibility determinations when he or she did not hear the witnesses’ testimony firsthand …. .

Here, Judiciary Law § 21 precluded County Court from rendering a verdict inasmuch as this was a nonjury trial and, in deciding the ultimate issue of guilt, County Court was required to weigh testimony and make factual determinations based upon testimony it did not hear and observe … . In view of the improper comments and actions of County Court … that led to the case being reassigned after the close of proof, coupled with the application of Judiciary Law § 21, we find that a mistrial was manifestly necessary such that double jeopardy does not bar a retrial. Accordingly, we conclude that a new trial is warranted. People v Banks, 2017 NY Slip Op 05474, 3rd Dept 7-6-17

 

CRIMINAL LAW (RETRIAL AFTER REVERSAL, COUNTY COURT JUDGE DID NOT HAVE THE AUTHORITY TO ISSUE A VERDICT BASED UPON THE REVIEW OF THE TRANSCRIPT OF THE PRIOR NON-JURY TRIAL WHICH HAD BEEN HELD BEFORE A DIFFERENT JUDGE AND REVERSED 3RD DEPT)/RETRIAL (CRIMINAL LAW, RETRIAL AFTER REVERSAL, COUNTY COURT JUDGE DID NOT HAVE THE AUTHORITY TO ISSUE A VERDICT BASED UPON THE REVIEW OF THE TRANSCRIPT OF THE PRIOR NON-JURY TRIAL WHICH HAD BEEN HELD BEFORE A DIFFERENT JUDGE AND REVERSED 3RD DEPT)/DOUBLE JEOPARDY (RETRIAL AFTER REVERSAL, MANIFEST NECESSITY, MISTRIAL, COUNTY COURT JUDGE DID NOT HAVE THE AUTHORITY TO ISSUE A VERDICT BASED UPON THE REVIEW OF THE TRANSCRIPT OF THE PRIOR NON-JURY TRIAL WHICH HAD BEEN HELD BEFORE A DIFFERENT JUDGE AND REVERSED 3RD DEPT)/MISTRIAL (CRIMINAL LAW, DOUBLE JEOPARDY, RETRIAL AFTER REVERSAL, COUNTY COURT JUDGE DID NOT HAVE THE AUTHORITY TO ISSUE A VERDICT BASED UPON THE REVIEW OF THE TRANSCRIPT OF THE PRIOR NON-JURY TRIAL WHICH HAD BEEN HELD BEFORE A DIFFERENT JUDGE AND REVERSED 3RD DEPT)/MANIFEST NECESSITY (MISTRIAL, DOUBLE JEOPARDY, COUNTY COURT JUDGE DID NOT HAVE THE AUTHORITY TO ISSUE A VERDICT BASED UPON THE REVIEW OF THE TRANSCRIPT OF THE PRIOR NON-JURY TRIAL WHICH HAD BEEN HELD BEFORE A DIFFERENT JUDGE AND REVERSED 3RD DEPT)

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