| Matter of Taylor v Dowling |
| 2013 NY Slip Op 05089 [108 AD3d 566] |
| July 3, 2013 |
| Appellate Division, Second Department |
| In the Matter of Eric Taylor, Petitioner, v DeborahA. Dowling et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Susan Anspach ofcounsel), for respondent Deborah A. Dowling. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J.Twersky of counsel), respondent pro se.
Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit therespondents from retrying the petitioner in a criminal action entitled People vTaylor, pending in the Supreme Court, Kings County, under indictment No. 69/11,on the ground that retrial would violate his constitutional right not to be twice placed injeopardy 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 Taylor, pending under Kings County indictment No. 69/11.
The petitioner, Eric Taylor, was charged under Kings County indictment No. 69/11with attempted murder in the second degree, attempted assault in first degree, assault inthe second degree, and criminal possession of a weapon in the fourth degree, followingan incident where the petitioner stabbed the complainant multiple times with a pocketknife. During voir dire, the Supreme Court read and defined the counts of the indictmentfor each panel of prospective jurors. At the jury trial, the complainant testified that hewas unarmed when the petitioner punched and stabbed him with a pocket knife. Bycontrast, the petitioner testified that the complainant first punched him and approachedhim with a knife and, thereafter, he stabbed the complainant in self-defense.
At the close of the evidence, the Supreme Court granted the petitioner's motion todismiss the count of attempted murder in the second degree on the ground that theevidence was legally insufficient to support it; however, the jury was not advised of thisdetermination. The court, however, warned the petitioner's trial counsel that it woulddeclare a mistrial if, in his summation, he referred to the court's determination to dismissthat count, or argued that the evidence was insufficient to support it.
During his summation, the petitioner's trial counsel argued that the complainant had amotive to lie about who initiated the altercation because, according to the petitioner'saccount, it was the complainant who would "have been the one placed under arrest forattempted murder." Over the objection of the petitioner's trial counsel, the SupremeCourt, sua sponte, [*2]declared a mistrial on the groundthat counsel had ignored its earlier warning and violated its directive. The courtdetermined that this violation by the petitioner's trial counsel could not be remedied by acurative instruction because the warning had been designed to avoid reminding the jurythat the petitioner had originally been charged with attempted murder in the seconddegree, and that further discussion of the dismissed count would only reinforce theprejudice to the People.
After a retrial was scheduled, the petitioner commenced the instant proceedingpursuant to CPLR article 78 in the nature of prohibition to prohibit the respondents fromretrying him.
The double jeopardy clauses of the New York and United States Constitutionsprotect a defendant from twice being put in jeopardy of criminal prosecution for the sameoffense (see US Const 5th Amend; NY Const, art I, § 6; Matter ofDavis v Brown, 87 NY2d 626, 629-630 [1996]; People v Baptiste, 72 NY2d356 [1988]; Matter of Smith vBrown, 105 AD3d 965, 967 [2013]; Matter of Morris v Livote, 105 AD3d 43, 47 [2013]). In ajury trial, once the jury is empaneled and sworn, jeopardy attaches (see CPL40.30 [1] [b]; People v Ferguson, 67 NY2d 383 [1986]), and the defendant has a"valued right to have his [or her] trial completed by a particular tribunal" (Matter of Smith v Marrus, 33AD3d 708, 709 [2006] [internal quotation marks omitted]; see Illinois vSomerville, 410 US 458, 463 [1973]; Matter of Smith v Brown, 105 AD3dat 967).
" '[W]hen a mistrial is granted over the defendant's objection or without thedefendant's consent, double jeopardy will, as a general rule, bar retrial' " (People v Hambrick, 96 AD3d972, 973 [2012], quoting Matter of Davis v Brown, 87 NY2d at 630; seeMatter of Enright v Siedlecki, 59 NY2d 195, 199-200 [1983]). "However, the rightto have one's case decided by the first empaneled jury is not absolute, and a mistrialgranted as the product of manifest necessity will not bar a retrial" (Matter ofRubenfeld v Appelman, 230 AD2d 911, 911 [1996]; see Matter of Davis vBrown, 87 NY2d at 630; Matter of Enright v Siedlecki, 59 NY2d at199-200). A mistrial declaration under the statutory provisions likewise requires adetermination of manifest necessity (see CPL 280.10 [2], [3]; Matter ofEnright v Siedlecki, 59 NY2d at 200).
"Manifest necessity" means "a high degree of necessity"; "the reasons underlying thegrant of a mistrial must be necessitous, actual and substantial" (Matter of Cohen v Lotto, 19AD3d 485, 486 [2005] [internal quotation marks omitted]; see Arizona vWashington, 434 US 497, 505 [1978]; Matter of Enright v Siedlecki, 59NY2d at 200). " 'Even if the reasons for granting a mistrial are deemed actual andsubstantial, the court must explore all appropriate alternatives prior to granting a mistrial'" (Matter of Cohen v Lotto, 19 AD3d at 487, quoting Matter of Pronti v Allen, 13AD3d 1034, 1036 [2004]; Matter of Rubenfeld v Appelman, 230 AD2d at912). Mistrials premised on the prejudicial effect of improper evidence or argument areentitled to "great deference" (Arizona v Washington, 434 US at 514), since "theTrial Judge, better than any other, . . . can detect the ambience of partiality"(People v Michael, 48 NY2d 1, 10 [1979]; see Matter of Enright vSiedlecki, 59 NY2d at 200-201; People v Hambrick, 96 AD3d at 974).Nonetheless, the trial judge must "temper the decision whether or not to abort the trial byconsidering the importance to the defendant of being able, once and for all, to concludehis [or her] confrontation with society through the verdict of a tribunal he [or she] mightbelieve to be favorably disposed to his [or her] fate" (Arizona v Washington, 434US at 514 [internal quotation marks omitted]).
Here, the trial court improvidently exercised its discretion in determining that amistrial was a manifest necessity. During summation, the petitioner's trial counsel did notviolate the trial court's directive to refrain from referencing the dismissed count ofattempted murder in the second degree. In any event, even if the reasons for granting amistrial are deemed actual and substantial, as stated previously, the trial court mustexplore appropriate alternatives, and provide a sufficient basis in the record for resortingto this "drastic measure" (Matterof Capellan v Stone, 49 AD3d 121, 126 [2008]; see Matter of Smith vBrown, 105 AD3d at 967; Matter of Morris v Livote, 105 AD3d at 47;Matter of Cohen v Lotto, 19 AD3d at 486-487; cf. People v Blunt, 273AD2d 146 [2000]; Matter of Maynard v Wait, 246 AD2d 853, 854 [1998]).Counsel's statement did not cause significant and irreparable prejudice to the People, asthe jury was aware that the [*3]petitioner was initiallycharged with attempted murder in the second degree, and reference was made to thatcount during the trial.
The record indicates that the trial court failed to evaluate the actual harm caused bythe subject reference or seriously consider whether a curative instruction would havebeen an appropriate alternative. The respondents' contentions that the People would havebeen prejudiced by a curative instruction referring to the dismissed count are notpersuasive.
"[W]hen a defendant is about to be prosecuted in violation of his [or her]constitutional right against double jeopardy, we have concluded that the harm that he [orshe] would suffer—prosecution for a crime for which he [or she] cannotconstitutionally be tried—is so great and the ordinary appellate process soinadequate to redress that harm, that prohibition will lie to raise the claim" (Matter ofRush v Mordue, 68 NY2d 348, 354 [1986]; see Matter of Cohen v Lotto, 19AD3d at 486). Under the circumstances of this case, the trial court was not justified inconcluding that there were no acceptable alternatives to a mistrial. Accordingly, there isan insufficient basis in the record for the declaration of a mistrial and, thus, retrial isprecluded. Rivera, J.P., Leventhal, Sgroi and Cohen, JJ., concur.