Matter of Gentil v Margulis

2014 NY Slip Op 06314 [120 AD3d 1414]

September 24, 2014

Appellate Division, Second Department

As corrected through Wednesday, October 29, 2014

[*1]

In the Matter of Estevan Gentil, Petitioner, v IraMargulis et al., Respondents.

Garnett H. Sullivan, South Hempstead, N.Y., for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Charles Sanders ofcounsel), for respondent Ira Margulis.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andNancy Fitzpatrick Talcott of counsel), respondent pro se.

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit therespondents from retrying the petitioner on counts two and three of the indictment in acriminal action entitled People v Gentil, pending in the Supreme Court, QueensCounty, under indictment No. 623/12, on the ground that to do so would subject him todouble jeopardy.

Adjudged that the petition is granted, on the law, without costs or disbursements, andthe respondents are prohibited from retrying the petitioner on counts two and three in thecriminal action entitled People v Gentil, pending under Queens Countyindictment No. 623/12.

The defendant was charged with two counts of criminal possession of a weapon inthe second degree (Penal Law § 265.03 [1] [b]; [3]) and one count ofcriminal possession of a weapon in the third degree (Penal Law § 265.02[1]), and these charges were tried before a jury. After approximately 11/2days of deliberations, the jury sent a note to the Trial Justice stating that it was unable toreach a verdict on counts two and three. The defendant requested that the Supreme Courtaccept a partial verdict on count one, but the court denied this request and instructed thejury to continue deliberating. The following day, one of the jurors informed the court thatthere had been an emergency in his family and that he did not feel that he was able togive the deliberations his full attention. After a colloquy between the juror and the court,and at the court's urging, the defendant moved to discharge this juror. The defendant alsorenewed his request that the court accept a partial verdict. The court again declined toaccept a partial verdict. The court granted the motion to discharge the juror. Noting thatthe defendant had declined to consent to the substitution of one of the alternate jurors,the court, on its own motion, immediately declared a mistrial. Thereafter, the defendantmoved to dismiss the indictment, contending that the Supreme Court erred in declining toaccept a partial verdict, and that retrial of the indictment as a whole subjected him todouble jeopardy. The court agreed that it erred in declining to accept a partial verdict asto count one, but dismissed only that count of the indictment, finding that, under thesecircumstances, retrial of counts two and three were not barred by double jeopardyprinciples.

The defendant commenced this proceeding pursuant to CPLR article 78 seekingrelief in the nature of prohibition to prohibit the respondents from retrying him on countstwo and three [*2]of the indictment on the ground that todo so would subject him to double jeopardy.

In reviewing an application for prohibition, the first question is whether the issuepresented is the type for which the remedy of prohibition lies (see Matter of Holtzmanv Goldman, 71 NY2d 564, 568 [1988]; Matter of Brown v Blumenfeld, 103 AD3d 45, 55 [2012];Matter of Brown vBlumenfeld, 89 AD3d 94, 102 [2011]; Matter of Vinluan v Doyle, 60 AD3d 237, 243 [2009]). Ifprohibition lies, then this Court must consider whether to exercise its discretion to grantthat remedy (see Matter of Brown v Blumenfeld, 103 AD3d at 55). Prohibition isthe traditional remedy where a defendant seeks protection against double jeopardy(see Matter of Enright v Siedlecki, 59 NY2d 195, 198 n 1 [1983]; Matter ofDi Lorenzo v Murtagh, 36 NY2d 306, 309-310 [1975]; Matter of Kraemer vCounty Ct. of Suffolk County, 6 NY2d 363, 365 [1959]), and the writ lies in thiscase.

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; Matterof Davis v Brown, 87 NY2d 626, 629-630 [1996]; Matter of Taylor v Dowling,108 AD3d 566, 567 [2013]). 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 or her trial completed by aparticular tribunal (see Matter of Taylor v Dowling, 108 AD3d at 567; Matter of Smith v Marrus, 33AD3d 708, 709 [2006]).

When a mistrial is granted over the defendant's objection or without the defendant'sconsent, double jeopardy will, as a general rule, bar retrial (see Matter of Davis vBrown, 87 NY2d at 630; Matter of Taylor v Dowling, 108 AD3d at 567-568;People v Hambrick, 96AD3d 972, 973 [2012]). However, the right to have one's case decided by the firstempaneled jury is not absolute, and a mistrial granted as the product of manifestnecessity will not bar a retrial (see Matter of Davis v Brown, 87 NY2d at 630;Matter of Taylor v Dowling, 108 AD3d at 568; Matter of Rubenfeld vAppelman, 230 AD2d 911, 911 [1996]). " 'Manifest necessity' means 'a highdegree of necessity'; 'the reasons underlying the grant of a mistrial must be necessitous,actual and substantial' " (Matter of Taylor v Dowling, 108 AD3d at 568,quoting Matter of Cohen vLotto, 19 AD3d 485, 486 [2005]; see Arizona v Washington, 434 US497, 505 [1978]; Matter of Enright v Siedlecki, 59 NY2d at 200). Even if thereasons for declaring a mistrial are deemed actual and substantial, the court must exploreall appropriate alternatives prior to declaring a mistrial (see Matter of Taylor vDowling, 108 AD3d at 568; Matter of Cohen v Lotto, 19 AD3d at 487).

Here, the trial court failed to explore all appropriate alternatives before declaring, onits own motion, a mistrial (seeMatter of Smith v Brown, 105 AD3d 965, 967-968 [2013]; see generally People vGajadhar, 9 NY3d 438 [2007]; Matter of Enright v Siedlecki, 59 NY2dat 200; Matter of Taylor v Dowling, 108 AD3d at 568; Matter of Cohen vLotto, 19 AD3d at 487; Matter of Robles v Bamberger, 219 AD2d 243[1996]). Accordingly, there was no manifest necessity for the declaration of a mistrialand, thus, retrial on counts two and three of the indictment is precluded. Balkin, J.P.,Dickerson, Leventhal and Roman, JJ., concur.