| Matter of Jeffrey v Firetog |
| 2007 NY Slip Op 09230 [45 AD3d 770] |
| November 20, 2007 |
| Appellate Division, Second Department |
| In the Matter of Keith Jeffrey, Petitioner, v Neil J. Firetog,as Justice of the Supreme Court of the State of New York, et al.,Respondents. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N. Y (Anthea H. Bruffee and Jonathan Kayeof counsel), respondent pro se and for respondent Neil J. Firetog.
Proceeding pursuant to CPLR article 78 in the nature of prohibition to bar the retrial of thepetitioner in a criminal action entitled People v Jeffrey, pending in the Supreme Court,Kings County, under indictment No. 1166/05, on the ground that retrial would violate theprohibition against double jeopardy.
Adjudged that the petition is denied, without costs or disbursements, and the proceeding isdismissed on the merits.
We reject the petitioner's contention that retrying him on Kings County indictment No.1166/2005 would violate the prohibition against double jeopardy.
"Where a mistrial is granted without the consent or over the objection of a defendant, retrialis barred by double jeopardy protections unless there was 'manifest necessity' for the mistrial or'the ends of public justice would otherwise be defeated' " (People v Ferguson, 67 NY2d383, 388 [1986], quoting United States v Perez, 22 US 579, 580 [1824]; see Matter of Smith v Marrus, 33AD3d 708, 709 [2006]; People v Gentile, 96 AD2d 950, 951-952 [1983]). Ahopelessly deadlocked jury presents the "classic basis for a proper mistrial" (Arizona vWashington, 434 US 497, 509 [1978]; see Matter of Smith v Marrus, 33 AD3d at708; Matter of Martin v Hynes, 259 AD2d 547 [1999]). "Generally, the declaration of amistrial due to a deadlocked jury is a matter of discretion for the Trial Judge, who is in the bestposition to [*2]determine whether a mistrial is required under thecircumstances of the case, and this decision must be accorded great deference" (Matter ofMartin v Hynes, 259 AD2d at 548; see Matter of Plummer v Rothwax, 63 NY2d243, 251 [1984]; People v Wincelowicz, 258 AD2d 602 [1999]). Here, the trial was briefand the issue to be resolved relatively simple. The jury deliberated for a minimum of seven toeight hours, had twice reported its inability to reach a verdict, and the Trial Judge adequatelyexplored the genuineness of the deadlock with the jury. Under the circumstances, the juryappeared to be genuinely deadlocked and it would have served no purpose to provide additionalinstructions or to order it to continue to deliberate. Therefore, the Supreme Court properlydetermined that manifest necessity existed and providently exercised its discretion in declaring amistrial. Accordingly, there is no bar to a retrial (see Matter of Plummer v Rothwax, 63NY2d at 243; Matter of Martin v Hynes, 259 AD2d at 547; People vWincelowicz, 258 AD2d at 602). Miller, J.P., Lifson, Angiolillo and McCarthy, JJ., concur.