| People v Hambrick |
| 2012 NY Slip Op 05021 [96 AD3d 972] |
| June 20, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JazzyHambrick, Appellant. |
—[*1]
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel, Jill Gross-Marks, andEdward D. Saslaw of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.),rendered October 28, 2009, convicting him of criminal possession of a weapon in the seconddegree (two counts) and assault in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that, notwithstanding hisown counsel's request for a mistrial, a demonstration of "manifest necessity" was required priorto the declaration of a mistrial in his first trial. The defendant also failed to preserve for appellatereview his contention that, in fact, no such "manifest necessity" for a mistrial was established andthat, as such, double jeopardy barred his retrial (see CPL 470.05 [2]; People v Hay, 73 AD3d 1081[2010]). In any event, these contentions are without merit.
"[W]hen a mistrial is granted over the defendant's objection or without the defendant'sconsent, double jeopardy will, as a general rule, bar retrial" (Matter of Davis v Brown, 87NY2d 626, 630 [1996]). "Conversely, when the defendant requests or consents to a mistrial,double jeopardy typically erects no barrier to a retrial" (id. at 630). Here, although thedefendant personally disagreed with the declaration of a mistrial, his counsel requested a mistrialon the ground that several members of the jury had impermissibly discussed the specifics of thecase and had potentially been biased by the predeliberation discussions. Having accepted theassistance of counsel, a defendant retains authority over certain fundamental decisions. Thosedecisions that have traditionally been considered to be fundamental include whether to accept aplea of guilty, waive a jury trial, testify in one's own behalf, or take an appeal (see Jones vBarnes, 463 US 745 [1983]). "Strategic and tactical decisions entrusted to counsel includewhich jurors to accept or strike, which witnesses should be called on the defendant's behalf, whatevidence should be introduced, whether to object to the admission of evidence, whether and howa witness should be cross-examined, and whether to consent to a mistrial" (People v Colville, 79 AD3d 189,198 [2010], lv granted 17 NY3d 793 [2011]). Thus, the defendant's personal consent to amistrial was not necessary, and his counsel's decision to move for a mistrial was binding on thedefendant (id. at 198; seegenerally People v Henriquez, 3 NY3d 210, 227 [2004]).[*2]
In any event, contrary to the defendant's contention,neither the defendant's nor his counsel's consent to a mistrial was required, since there was ashowing of "manifest necessity" to declare a mistrial based upon juror bias (People vMichael, 48 NY2d 1, 9 [1979] [internal quotation marks omitted]). Initially, "[s]ince theTrial Judge is in the best position to determine whether a mistrial is in fact necessary in aparticular case, that court is entrusted with discretion in this area, and deference is to be accordedthe Trial Judge's decision to declare a mistrial" (id. at 9). "[T]he trial judge's evaluation ofthe likelihood that the impartiality of one or more jurors may have been affected by the impropercomment" will be accorded "the highest degree of respect" (Arizona v Washington, 434US 497, 511 [1978]; see Matter of Enright v Siedlecki, 59 NY2d 195, 200 [1983]). Here,the trial court providently exercised its discretion in declaring a mistrial in the defendant's firsttrial.
The defendant's contention that, at his second trial, certain allegedly improper commentsmade by the prosecutor during her summation and certain testimony by a prosecution witnessdeprived the defendant of his right to a fair trial is unpreserved for appellate review (seeCPL 470.05 [2]; People vAdams, 93 AD3d 734 [2012]). In any event, the challenged summation remarks werefair comment on the evidence, permissible rhetorical comment, or responsive to the summationof defense counsel (see generally Peoplev Jenkins, 93 AD3d 861 [2012]). In addition, to the extent that the challengedprosecution testimony was improper, it was not so flagrant or pervasive as to deprive thedefendant of a fair trial (see generallyPeople v Almonte, 23 AD3d 392 [2005]).
There is no merit to the defendant's contention that he was deprived of the effectiveassistance of counsel (see People v Baldi, 54 NY2d 137, 147 [1981]; see also People v Caban, 5 NY3d143, 156 [2005]). Dillon, J.P., Eng, Austin and Sgroi, JJ., concur.