| People v Sanders |
| 2008 NY Slip Op 04552 [51 AD3d 825] |
| May 13, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v CorySanders, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and KarenWigle Weiss of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Cooperman, J.), rendered March 30, 2006, convicting him of murder in the second degree andcriminal possession of a weapon in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant was indicted on charges of murder in the second degree and criminalpossession of a weapon in the second degree for the shooting death of the victim. The defendant'sfirst trial ended in a mistrial when the jury became deadlocked. At the conclusion of the secondtrial, the defendant was convicted of both murder in the second degree and criminal possession ofa weapon in the second degree.
Contrary to the defendant's contention, his retrial did not violate the constitutionalprohibition against double jeopardy. A retrial is not barred by the double jeopardy clause if it isgranted after a trial judge discharges a genuinely deadlocked jury. "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 determine whether a mistrial is required under the circumstances of the case, and thisdecision must be accorded great deference" (Matter of Jeffrey v Firetog, 45 AD3d 770, 770 [2007], quotingMatter of Martin v Hynes, 259 AD2d 547, 548 [1999]; see Matter of Plummer vRothwax, 63 NY2d 243 [1984]). Here, the jury in the defendant's first trial deliberated forthree days, and reported its inability to reach a verdict a total of four times. After receiving thejury's third note indicating their inability to reach a unanimous verdict, the trial court provided anAllen instruction (see Allen v United States, 164 US 492 [1896]). Only after thejury sent its fourth note stating that the jurors were resolute in their decisions [*2]and remained deadlocked did the court declare a mistrial. Underthese circumstances, the jury appeared to be genuinely deadlocked, and it would have served nopurpose to require it to continue deliberations (see CPL 310.60 [1] [a]; Matter ofPlummer v Rothwax, 63 NY2d 243 [1984]; Matter of Smith v Marrus, 33 AD3d 708, 709 [2006]; Matter ofBrown v Brown, 263 AD2d 455 [1999]; Matter of Martin v Hynes, 259 AD2d 547[1999]). Accordingly, the court providently exercised its discretion in declaring a mistrial, and nobar to the defendant's retrial existed.
We reject the defendant's contention that the court should have declared a mistrial during hissecond trial because a witness was identified as a "Corrections Counselor," and thereafter made abrief reference to "inmates." Although the defendant alleges that this evidence implied that hehad a criminal record, any prejudice was alleviated by the court's prompt curative instructions(see People v Young, 48 NY2d 995 [1980]; People v Smith, 299 AD2d 500[2002]; People v Carillo, 297 AD2d 288 [2002]; People v Boston, 296 AD2d 576[2002]).
The defendant received the effective assistance of counsel at his second trial (see Peoplev Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).Mastro, J.P., Santucci, Eng and Belen, JJ., concur.