| People v Wilson |
| 2018 NY Slip Op 04982 [163 AD3d 1049] |
| July 5, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ivor Wilson, Also Known as G, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant, and appellant pro se.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered June 22, 2016, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
After a controlled-buy operation in Clinton County, defendant was charged by indictmentwith two counts of criminal sale of a controlled substance in the third degree and three counts ofcriminal possession of a controlled substance in the third degree. At an appearance in October2015, the attorney assigned to represent defendant was dismissed upon defendant's insistence thathe wanted new counsel due to an alleged conflict of interest. When defendant was unable toretain counsel in the time allotted to him, he proceeded pro se during pretrial hearings and attrial.[FN*] A mistrial waseventually declared due to jury deadlock and a retrial was scheduled for May 2016. Prior to thedate of the retrial, defendant retained counsel, entered an Alford plea to one count ofcriminal possession of a controlled substance in the third degree in satisfaction of the indictment,and executed a waiver of appeal. In accordance with the plea agreement, defendant wassentenced, as a second felony offender, to a prison term of 4
The People concede that defendant's waiver of the right to appeal was invalid inasmuch asCounty Court did not adequately explain the separate and distinct nature of the right to appealfrom those rights that are automatically forfeited by pleading guilty (see People v Lopez, 6 NY3d 248,256 [2006]; People v Warren, 160AD3d 1286, 1287 [2018]; People vLemon, 137 AD3d 1422, 1423 [2016], lv denied 27 NY3d 1135 [2016]).Furthermore, while defendant signed a written waiver explaining the "separate and distinct"nature of the right to appeal, the record does not reflect an inquiry as to whether he had read andunderstood it (People v Cotto, 156AD3d 1063, 1063 [2017]; see People v Lemon, 137 AD3d at 1423). Accordingly,defendant is not precluded from raising his constitutional double jeopardy claim on appeal(see People v Hansen, 95 NY2d 227, 230 [2000]; People v Fay, 154 AD3d 1178, 1180 [2017], lv denied 30NY3d 1115 [2018]; People vGalunas, 93 AD3d 892, 893 [2012], lv denied 19 NY3d 960 [2012]).
Declaring a mistrial is generally appropriate where a jury is deadlocked and unable to reach averdict (see Matter of Jeffrey vFiretog, 45 AD3d 770, 770-771 [2007]; Matter of Smith v Marrus, 33 AD3d 708, 709 [2006]; see generally Matter of Rivera vFiretog, 11 NY3d 501, 506 [2008], cert denied 556 US 1193 [2009]). Beforegranting a mistrial upon such a declaration, it is incumbent upon the trial court to consult withthe parties about how to proceed and to determine whether the defendant consents to a mistrial,as "double jeopardy typically erects no barrier to a retrial" where consent is freely given(Matter of Davis v Brown, 87 NY2d 626, 630 [1996]; see Matter of Phillips v Carnright, 66 AD3d 1319, 1320 [2009]).However, declaration of a mistrial absent a defendant's consent "bars a re[prosecution] on thegrounds of double jeopardy unless 'there was manifest necessity for the mistrial' " (People v Banks, 152 AD3d 816,817 [2017], quoting People v Catten, 69 NY2d 547, 554 [1987]; see Matter of Robar v LaBuda, 84AD3d 129, 133-134 [2011]). The decision to grant a mistrial due to jury deadlock is a matterof discretion for the trial court and its decision is entitled to "great deference" on appeal (People v Hardy, 26 NY3d 245,252 [2015]; see Matter of Rivera v Firetog, 11 NY3d at 507). Such discretion is notlimitless, however, and the trial court "has the duty to consider alternatives to a mistrial and toobtain enough information so that it is clear that a mistrial is actually necessary" (People vFerguson, 67 NY2d 383, 388 [1986]). Factors that are relevant to assessing the necessity ofdischarging an apparently deadlocked jury include "the length and complexity of the trial, thelength of the deliberations, the extent and nature of the communications between the court andthe jury, and the potential effects of requiring further deliberation" (Matter of Plummer vRothwax, 63 NY2d 243, 251 [1984]). Where "[t]he impetus for the declaration of mistrial[originates] solely from the [court, it is] under a particular obligation to demonstrate on therecord that the jury believed it was unable to decide the case" (People v Baptiste, 72NY2d 356, 361 [1988]).
Here, the jury had deliberated for a little over two hours—excluding a lunchrecess—when County Court received a note from the jury stating that "there appears not tobe any way to a unanimous decision" and asking for guidance on how to proceed. Withoutconsulting the parties for input on the appropriate response, County Court summoned the juryinto the courtroom, noted that it had not been deliberating for very long, provided anAllen charge and asked the jury to resume deliberations and advise the court if it wasunable to arrive at a verdict after a reasonable period of time. Fifty-one minutes after the jury hadresumed deliberations, County Court recalled the jury back into the courtroom, on its ownaccord, and inquired whether the jury was still deadlocked. The foreperson confirmed that it wasand, without seeking input [*3]from the People or defendant,County Court declared a mistrial.
County Court erred in its recall of the jury by: (1) doing so without first apprising the Peopleand defendant of its intent to do so and seeking their comment; (2) doing so only 51 minutes afterit had instructed the jury to resume deliberations; (3) not exploring the possibility of a dinnerbreak or an overnight recess upon learning of the continuing deadlock; and (4) not seeking inputfrom the parties before declaring a mistrial upon learning of the continuing deadlock. Because amistrial was not manifestly necessary under the collective circumstances, County Court abusedits discretion in declaring a mistrial, jeopardy attached and the People were precluded fromreprosecuting defendant on the indictment (see People v Baptiste, 72 NY2d at 361-362;compare Matter of Owen v Stroebel, 65 NY2d 658, 661 [1985], cert denied 474US 994 [1985]; Matter of Plummer v Rothwax, 63 NY2d at 251-252).
In light of our determination, defendant's remaining contentions are academic.
McCarthy, J.P., Lynch, Clark and Pritzker, JJ., concur. Ordered that the judgment is reversed,on the law, plea vacated and indictment dismissed.
Footnote *:Defendant was appointedstandby counsel for trial.