| Matter of Roey v Lopresto |
| 2014 NY Slip Op 08340 [122 AD3d 929] |
| November 26, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Joseph Roey, Also Known as JohnWash, Petitioner v Charles S. Lopresto et al.,Respondents. |
Randall D. Unger, Bayside, N.Y., for appellant.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Michelle R. Lambertof counsel), for respondent Charles S. Lopresto.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Laura T. Ross of counsel), for respondent Office of the DistrictAttorney of Queens County.
Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to barthe retrial of the petitioner in an action entitled People v Roey, pending in theSupreme Court, Queens County, under indictment No. 2032/12, on the ground that retrialwould subject him to double jeopardy.
Adjudged that the petition is denied, without costs or disbursements, and theproceeding is dismissed on the merits.
The petitioner was charged under Queens County indictment No. 2032/12 with,among other things, criminal possession of a weapon in the second degree, following anincident in which police officers allegedly recovered a stolen firearm from his person.Counsel was assigned and the case proceeded to trial. After the jury was sworn, butbefore opening statements were made and before any testimony was offered, theSupreme Court was informed of a conflict that would prevent assigned counsel fromcontinuing to represent the defendant. Counsel, after considering the conflict and theconsequences that could follow if he continued as defense attorney, moved to berelieved. The Supreme Court granted the application and assigned the petitioner a newattorney. When asked if he was ready to proceed with the trial, the petitioner's newattorney stated that he was not and that he would need a continuance of "at least" twomonths.
After noting the delays that had already occurred during the jury selection processand the issues that were arising regarding the jurors' ability to attend court every day, andafter asking both parties for alternatives to declaring a mistrial, the Supreme Courtconcluded that there were no reasonable alternatives and, on its own motion and overobjection from the newly assigned defense attorney, declared a mistrial. The petitionerthen commenced the instant proceeding pursuant to CPLR article 78 to prohibit therespondents from retrying him on the [*2]ground that todo so would subject him to double jeopardy.
The double jeopardy clauses of the New York State and United States Constitutionsprotect an accused from multiple prosecutions for the same offense (see USConst Amend V; NY Const, art I, § 6; People v Baptiste, 72 NY2d356 [1988]; Matter of Morris vLivote, 105 AD3d 43 [2013]; Matter of Taylor v Dowling, 108 AD3d 566, 567 [2013])."In a jury trial, once the jury is empaneled and sworn, jeopardy attaches, and thedefendant has a 'valued right to have his trial completed by a particular tribunal' "(Matter of Smith v Marrus, 33 AD3d at 709, quoting People v Ferguson,67 NY2d 383, 388 [1986] [internal quotation marks and citations omitted]; seeCPL 40.30 [1] [b]; Matter of Taylor v Dowling, 108 AD3d at 567; Matter of Smith v Brown, 105AD3d 965, 967 [2013]).
When a mistrial is granted over the defendant's objection or without the defendant'sconsent, a retrial is precluded unless " 'there was manifest necessity for themistrial or the ends of public justice would be defeated' " (Matter of Smith vMarrus, 33 AD3d at 709, quoting People v Ferguson, 67 NY2d at 388;see United States v Perez, 22 US 579, 580 [1824]; Matter of Smith vBrown, 105 AD3d at 967). "Manifest necessity" means a " 'high degree ofnecessity' " based on reasons that are " 'actual and substantial' "(Matter of Taylor v Dowling, 108 AD3d at 568, quoting Matter of Cohen v Lotto, 19AD3d 485, 486 [2005]; see Arizona v Washington, 434 US 497, 505[1978]). Moreover, before declaring a mistrial, a court must explore all appropriatealternatives and must provide a sufficient basis in the record for resorting to this "drasticmeasure" (Matter of Capellan vStone, 49 AD3d 121, 126 [2008]; see Matter of Taylor v Dowling, 108AD3d at 568; Matter of Cohen v Lotto, 19 AD3d at 486).
Here, we reject the petitioner's contention that a mistrial was not manifestly necessaryunder the circumstances. When questioned, the newly appointed defense attorneyindicated that he would need "at least" two months to adequately prepare his defense.Under these circumstances, and considering the issues described in detail on the recordregarding the jurors' ability to continue to attend court, the Supreme Court was justifiedin concluding that there was no acceptable alternative to a mistrial (see Matter ofEnright v Siedlecki, 59 NY2d 195, 202 [1983]). Contrary to the petitioner'ssuggestion, the Supreme Court, under the particular circumstances presented here, couldnot reasonably be required to order a continuance for "at least" two months (seeMatter of Enright v Siedlecki, 59 NY2d at 202; Matter of Romero v Justices ofSupreme Ct., Queens County, 237 AD2d 292, 293 [1997]; cf. People vMichael, 48 NY2d 1 [1979]).
Accordingly, the petition is denied and the proceeding is dismissed on the merits.Balkin, J.P., Leventhal, Sgroi and Barros, JJ., concur.