People v. Johnson

453 N.E.2d 1246, 59 N.Y.2d 1014, 466 N.Y.S.2d 957, 1983 N.Y. LEXIS 3282

Opinions

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The search of defendant’s shoulder bag, two feet away from him at the time of his arrest for a crime involving a gun, was valid for the reasons stated in the opinion of Justice Asch at the Appellate Division (see, also, People v Smith, 59 NY2d 454). The questions asked of the defendant at the time of his arrest, although prior to the requisite warnings, were nevertheless permissible as they were asked to clarify a volatile situation rather than to elicit evidence of a crime (see People v Huffman, 41 NY2d 29; cf. People v Quarles, 58 NY2d 664, cert granted sub nom. New York v Quarles, _ US _, 103 S Ct 2118). Retrial of the defendant did not violate the double jeopardy clause when the court declared a mistrial of the first trial on the basis of the jury’s deadlock after two days of deliberation (see Arizona v Washington, 434 US 497, 509-510; People v Michael, 48 NY2d 1, 9). The defendant’s failure to request a charge pursuant to Allen v United States (164 US 492) puts the court’s failure to give such a charge beyond our review.