| People v Welcher |
| 2016 NY Slip Op 03354 [138 AD3d 1481] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vEvan Welcher, Appellant. |
James S. Kernan, Public Defender, Lyons (Robert Tucker of counsel), fordefendant-appellant.
Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.),rendered May 22, 2014. The judgment convicted defendant, upon his plea of guilty, ofrape in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of rape in the third degree (Penal Law § 130.25 [1]). Prior to his plea,defendant was tried on an indictment charging him with one count of rape in the firstdegree (§ 130.35 [2]), but the trial ended when County Court declared amistrial over defendant's objection upon its determination that the jury was deadlocked.As a preliminary matter, we agree with defendant that the record does not establish thatthe waiver of the right to appeal was knowing, voluntary and intelligent (see People v Lopez, 6 NY3d248, 256 [2006]). The court, while advising defendant of the consequences of theplea, merely noted that "there is a waiver of appeal by you, both as to conviction andsentence." Although defendant signed a written waiver of the right to appeal, "a writtenwaiver does not, standing alone, provide sufficient assurance that the defendant isknowingly, intelligently and voluntarily giving up his or her right to appeal" as acondition of the plea agreement (People v Banks, 125 AD3d 1276, 1277 [2015], lvdenied 25 NY3d 1159 [2015] [internal quotation marks omitted]). Here, "the recordestablishes that [the] [c]ourt did not sufficiently explain the significance of the appealwaiver or ascertain defendant's understanding thereof" (id.; cf. People v Ramos, 7 NY3d737, 738 [2006]).
We nevertheless reject defendant's contention that the court abused its discretion indeclaring a mistrial and, thus, that the subsequent prosecution was barred by doublejeopardy. It is well established that the determination whether to grant a mistrial when thejury is deadlocked is "entitled to 'great deference' " (People v Hardy, 26 NY3d245, 252 [2015]). A retrial is barred by double jeopardy, however, "unless there was'manifest necessity' for the mistrial" (People v Ferguson, 67 NY2d 383, 388[1986]). Here, the court properly considered "the length and complexity of the trial, thelength of the deliberations, the extent and nature of the communications between thecourt and the jury, and the potential effects of requiring further deliberation" (Matterof Plummer v Rothwax, 63 NY2d 243, 251 [1984]; see Matter of Rivera v Firetog,11 NY3d 501, 507 [2008], cert denied 556 US 1193 [2009]). The courtnoted that this was a single-count indictment; that the jury had deliberated for 12 hoursover three days; and that the jury had indicated in notes to the court on two occasionsprior to the final note that it was not able to reach a unanimous verdict. The courtquestioned the foreperson, who advised the court that further deliberations would befruitless, and each member of the jury agreed with the foreperson's statements. Wetherefore conclude that the determination by the court that the jury was deadlockedconstituted a manifest necessity for a mistrial, and thus that the subsequent prosecutionwas not barred by double jeopardy (see People v Duda, 45 AD3d 1464, 1465 [2007], lvdenied 10 NY3d 764 [2008]).
[*2] Wereject defendant's further contention that the subsequent prosecution was barred bydouble jeopardy on the ground that the evidence at trial was legally insufficient on theissue whether the victim was "unconscious." Defendant correctly states that, in responseto his demand for a bill of particulars, the People limited the theory of proof on theelement of physical helplessness to evidence that the victim was "unconscious." As apreliminary matter, we note that, because defendant did not explicitly waive hisconstitutional double jeopardy claim as a condition of his plea (see People vAllen, 86 NY2d 599, 603 [1995]), he did not waive his contention by pleading guilty(see People v Prescott, 66 NY2d 216, 220-221 [1985], cert denied 475US 1150 [1986]). We further note that, for purposes of double jeopardy analysis, rape inthe third degree (Penal Law § 130.25 [1]) is the same offense as rape in thefirst degree (§ 130.35 [2]) (see People v Biggs, 1 NY3d 225, 229-230 [2003]). Wenevertheless conclude that, when viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), it is legally sufficient toestablish that the victim was unconscious (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Defendant was observed having sexual intercourse with thevictim in a backyard during a house party. The victim was not moving and was notresponsive to the witnesses who were speaking loudly to her and defendant. The victimrequired assistance after the witnesses removed defendant from the victim and, althoughshe spoke briefly to one of the witnesses who intervened on her behalf, she had nomemory of the incident. Laboratory test results established that the victim's urine waspositive for GHB, i.e., gamma hydroxybutyrate, which a forensic toxicologist testified isa central nervous system depressant that may cause a deep state of unconsciousness. Wetherefore conclude that the evidence was legally sufficient to establish that the victim wasunconscious and, therefore, physically helpless (see People v Yontz, 116 AD3d 1242, 1242-1243 [2014],lv denied 23 NY3d 1026 [2014]; People v Willard, 38 AD3d 924, 925 [2007]).Present—Centra, J.P., Carni, DeJoseph, Curran and Scudder, JJ.