| Matter of Phillips v Carnright |
| 2009 NY Slip Op 07733 [66 AD3d 1319] |
| October 29, 2009 |
| Appellate Division, Third Department |
| In the Matter of Shawn Phillips, Petitioner, v Holley Carnright, asUlster County District Attorney, Respondent, et al., Respondent. |
—[*1] Holley Carnright, District Attorney, Kingston (Kevin K. O'Brien of counsel), for HolleyCarnright, respondent.
Lahtinen, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant toCPLR 506 [b] [1]) to prohibit respondents from trying petitioner in the County Court of UlsterCounty on an indictment charging him with criminal sale of a controlled substance in the thirddegree, criminal possession of a controlled substance in the third degree and criminal possessionof a controlled substance in the fourth degree (two counts).
On March 15, 2008, petitioner, assisted by his girlfriend, allegedly sold 10 grams of crackcocaine to undercover investigator Dennis Doyle. He was arrested and, after being Mirandized,gave a statement to detective Shawn McDermott acknowledging that he had provided the crackcocaine for [*2]the sale to Doyle. Petitioner also consented to asearch of the hotel room where he had been staying, which resulted in the discovery of additionalquantities of cocaine. He was indicted on four felony counts for possessing and selling cocaine.
During the second day of trial, the People produced petitioner's girlfriend, who had beenoffered leniency in exchange for her cooperation. Petitioner's cross-examination of her included,among other things, questions regarding the length of her relationship with petitioner, who wasfrom another area of the state, and she indicated that they had met three times previously. Onredirect, the following colloquy occurred between the prosecutor and witness:
"Q. How many times had you met with the [petitioner] prior to March 15th, 2008, if youremember?
"A. Yeah, about three times.
"Q. Can you tell us what you did with him on these occasions?
"A. It was all the same, like drug dealing."
Petitioner immediately objected upon the ground that this testimony implicated prioruncharged crimes about which he had not been provided notice by the People. After hearingextensive argument outside the presence of the jury, County Court (Czajka, J.) grantedpetitioner's motion for a mistrial and set a time for further submissions on his motion to have theindictment dismissed and a subsequent trial barred on the ground of double jeopardy. The courtheard testimony from the prosecutor and defense counsel and then determined that the prosecutorhad not asked the question to provoke a mistrial. The court denied petitioner's motion and set adate for a new trial. Petitioner then commenced the instant proceeding in this Court seekingdismissal of the indictment on double jeopardy grounds. We granted a stay of the retrial pendingour determination of this proceeding.
"[W]hen the defendant requests or consents to a mistrial, double jeopardy typically erects nobarrier to a retrial" (Matter of Davis v Brown, 87 NY2d 626, 630 [1996]). "An exceptionto this rule exists, however, in instances where a prosecutor has engaged in prejudicialmisconduct deliberately intended to provoke a mistrial motion" (Matter of Gorghan v DeAngelis, 7NY3d 470, 473 [2006]; see Oregon v Kennedy, 456 US 667, 673 [1982]), whichmay occur if "the prosecution fears the case is headed toward acquittal" (Matter of Davis vBrown, 87 NY2d at 630). Here, while the proof apparently had not progressed in all respectsas the prosecutor had intended, we agree with County Court that the record does not establishthat the case was headed toward an acquittal. Petitioner had been identified by Doyle as aparticipant in the drug transaction and McDermott, who had taken petitioner's confession, wasstill to be called as a witness. The prosecutor testified at the hearing on petitioner's motion thathe was not attempting to provoke a mistrial. County Court credited this testimony. We areunpersuaded that the question posed by the prosecutor to petitioner's girlfriend on redirect, theanswer to which resulted in the mistrial, was asked with intent to cause a mistrial (see Matterof Owen v Harrigan, 131 AD2d 20, 22-23 [1987]); see also People v Arduini, 222AD2d 965, 966 [1995], lv denied 87 NY2d 1016 [1996]; People v Gemmill, 146AD2d 951, 952-953 [1989]).
Spain, J.P., Rose and Malone Jr., JJ., concur; Kavanagh, J., not taking part. Adjudged thatthe petition is dismissed, without costs.