| People v Parker |
| 2009 NY Slip Op 02671 [61 AD3d 439] |
| April 7, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Onnie Parker, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Amyjane Rettew of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J., at mistrial;Maxwell Wiley, J., at second jury trial and sentence), rendered February 15, 2006, convictingdefendant of burglary in the second degree and attempted rape in the first degree, and sentencinghim, as a second felony offender, to concurrent terms of 12 years, unanimously affirmed.
Defendant's retrial was not barred by double jeopardy, because the court's sua spontedeclaration of a mistrial was based on manifest necessity (see Matter of Enright vSiedlecki, 59 NY2d 195, 200 [1983]). The court observed that defense counsel had fallenasleep during the prosecutor's cross-examination of defendant. In addition to the court's ownobservations, the record reveals, among other things, counsel's failure to react to events duringthe cross-examination, counsel's complete failure to respond to the court's inquiry as to whetherhe wished to ask any questions on redirect, defendant's spontaneous expression of dismay at hislawyer's condition, and counsel's implied admission that he had been asleep. The conclusion isinescapable that counsel slept through a significant portion of the prosecutor's questioning anddid not merely doze off or close his eyes. Furthermore, the court concluded that counsel washaving "a particularly terrible trial," considering "what occurred by way of topics, questions, notunderstanding what the witnesses had said" and thus had not met the standard of effectiverepresentation. Accordingly, the court concluded that the attorney not only failed to function ascounsel at a critical time (see Tippins v Walker, 77 F3d 682, 687 [2d Cir 1996]), but was[*2]generally ineffective. In these circumstances, a mistrial wasnecessary to protect defendant's right to effective assistance of counsel, and we conclude thatthere was no reasonable alternative. Concur—Mazzarelli, J.P., Nardelli, Buckley, Acostaand DeGrasse, JJ.