| Matter of Smith v Brown |
| 2013 NY Slip Op 02584 [105 AD3d 965] |
| April 17, 2013 |
| Appellate Division, Second Department |
| In the Matter of Eric Smith, Petitioner, v RichardA. Brown et al., Respondents. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Jill A. Gross-Marks ofcounsel), respondent pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Susan Anspach ofcounsel), for respondents Kenneth Holder and Joseph Zayas.
Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit therespondents from retrying the petitioner in a criminal action entitled People vSmith, pending in the Supreme Court, Queens County, under indictment No.1075/09, on the ground that retrial would violate his constitutional right not to be placedtwice in jeopardy for the same offense.
Adjudged that the petition is granted, on the law, without costs or disbursements, andthe respondents are prohibited from retrying the petitioner in the criminal action entitledPeople v Smith, pending under Queens County indictment No. 1075/09.
The petitioner, Eric Smith, was charged under Queens County indictment No.1075/09 with two counts of criminal possession of a weapon in the second degree andtwo counts of violating the Vehicle and Traffic Law following an incident in which thepolice, during a traffic stop, allegedly recovered a loaded firearm from his waistband. OnJuly 22, 2010, at the start of the second day of jury deliberations, after the alternate jurorshad been dismissed, two jurors requested permission to speak to the court. The jurorsreported that another juror, juror number 11, told the panel that morning that he hadspoken to an "attorney friend" about a "hypothetical gun case" and that the attorney toldhim that the only thing that they, as a jury, should focus on was whether they believedthat a gun was present in the car. When asked, one of the two jurors who reported thisincident indicated that juror number 11's comments did not cause her any unpleasantnessor difficulties as a juror. The other juror who reported the incident indicated that she was"angry" and "uncomfortable" with juror number 11, but stated that she thought she couldcontinue to deliberate and that she had "pretty much" made her decision the night before.
Both sides agreed that juror number 11 had committed juror misconduct and shouldbe discharged. After discharging him, the court asked the parties for their positions onwhether the trial could be continued with the remaining 11 jurors. The People indicatedthat they would not consent to going forward. Defense counsel urged the court to allowthe trial to proceed, arguing that the taint had been removed and that his client had a rightto proceed with 11 jurors. Over this objection, the court declared a mistrial, finding thatthe absolute integrity of the jury process had [*2]beencompromised. Defense counsel objected again, urging the court to conduct an inquiry ofthe entire panel. The court denied this request. The petitioner commenced the instantproceeding pursuant to CPLR article 78 in the nature of a writ of prohibition to prohibitthe respondents from retrying him.
Initially, we reject the respondents' assertion that this proceeding must be dismissedas time-barred, having been brought more than four months after the declaration ofmistrial. Although the four-month statute of limitations has been applied to proceedingsin the nature of prohibition where a single circumscribed exercise of power is beingquestioned (see e.g. Matter of Holtzman v Marrus, 74 NY2d 865, 866 [1989]),the petitioner herein is seeking a writ prohibiting his continued prosecution on theunderlying indictment. As the respondents admit that they have every intention ofcontinuing to act on that underlying indictment, the harm in this case is ongoing andcontinuous and the instant proceeding is not time-barred (see Taub v Committee onProfessional Stds. for Third Jud. Dept., 200 AD2d 74, 77-78 [1994]; Siegel, NYPrac § 566 at 1006 [5th ed 2011]; see also Matter of Forte v Supreme Ct. ofState of N.Y., 48 NY2d 179, 183 [1979]).
The double jeopardy clauses of the New York State and United States Constitutionsprotect an accused from multiple prosecutions for the same offense (see USConst 5th Amend; NY Const, art I, § 6; People v Baptiste, 72 NY2d 356[1988]; Matter of Morris v Livote, 105 AD3d 43 [2013]; Matter of Smith v Marrus, 33AD3d 708, 709 [2006]). In a jury trial, once the jury is empaneled and sworn,jeopardy attaches (see CPL 40.30 [1] [b]; People v Ferguson, 67 NY2d383 [1986]), and the defendant has a "valued right to have his trial completed by aparticular tribunal" (Matter of Smith v Marrus, 33 AD3d at 709 [internalquotation marks omitted]; see Illinois v Somerville, 410 US 458, 463 [1973]).When a mistrial is declared without the consent of or over the objection of a defendant, aretrial is precluded unless " 'there was manifest necessity for the mistrial or the ends ofpublic justice would be defeated' " (Matter of Smith v Marrus, 33 AD3d at 709,quoting People v Ferguson, 67 NY2d at 388 [internal quotation marks omitted];see United States v Perez, 22 US 579, 580 [1824]; People v Michael, 48NY2d 1, 9 [1979]; Matter of Morris v Livote, 105 AD3d 43 [2013]).
Although a trial court's decision to declare a mistrial is accorded deference, thecourt's discretion is not unlimited (see Matter of Enright v Siedlecki, 59 NY2d195, 200 [1983]). The People bear a "heavy burden" to demonstrate that the mistrial wasmanifestly necessary (see Arizona v Washington, 434 US 497, 505 [1978]; Matter of Capellan v Stone, 49AD3d 121, 126 [2008]). Indeed, even if the reasons for granting a mistrial aredeemed actual and substantial, the trial court must explore appropriate alternatives andprovide a sufficient basis in the record for resorting to this "drastic measure" (Matterof Capellan v Stone, 49 AD3d at 126; see Hall v Potoker, 49 NY2d 501, 505[1980]; Matter of Morris v Livote, 105 AD3d 43 [2013]; Matter of Cohen v Lotto, 19AD3d 485, 486-487 [2005]).
Here, the People have not met their burden of demonstrating that the declaration of amistrial was manifestly necessary. While it is undisputed that juror number 11 wasgrossly unqualified to continue serving, the court abused its discretion in declaring amistrial without considering other alternatives. The defendant specifically indicated hisdesire to waive trial by a jury of 12 persons and proceed with the remaining 11 jurors, anoption that has been endorsed by the Court of Appeals (see People v Gajadhar, 9NY3d 438 [2007]). Under the circumstances presented, as urged by defense counsel,it would have been appropriate to poll the remainder of the jurors to ascertain whetherthey could render an impartial verdict (see Matter of Morris v Livote, 105 AD3d43 [2013]; Matter of Rubenfeld v Appelman, 230 AD2d 911, 912 [1996]; seegenerally Matter of Robles v Bamberger, 219 AD2d 243, 246 [1996]). Moreover, asthe improper information imparted to the jurors did not significantly prejudice thePeople, the court should have considered whether a specific curative instruction couldhave clarified what constituted "evidence" and whether such an instruction could havecured the impropriety (see Matter of Morris v Livote, 105 AD3d 43 [2013];Matter of Rubenfeld v Appelman, 230 AD2d at 912). Accordingly, there is aninsufficient basis in the record for the declaration of a mistrial, and thus retrial isprecluded. Skelos, J.P., Angiolillo, Roman and Cohen, JJ., concur.