| People v Ellis |
| 2020 NY Slip Op 02292 [182 AD3d 791] |
| April 16, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Timothy L. Ellis, Appellant. |
David E. Woodin, Catskill, for appellant, and appellant pro se.
Benjamin K. Bergman, Special Prosecutor, Binghamton, for respondent.
Clark, J. Appeals (1) from a judgment of the County Court of Broome County(Cawley Jr., J.), rendered April 14, 2017, upon a verdict convicting defendant of thecrimes of attempted murder in the first degree, attempted murder in the second degree,assault in the first degree, burglary in the first degree and burglary in the second degree,and (2) by permission, from an order of said court, entered October 11, 2017, denyingdefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
In February 2016, based upon allegations that he unlawfully entered a home in theTown of Barker, Broome County, and severely beat the occupant about the head with adangerous instrument, defendant was indicted on charges of attempted murder in the firstdegree, attempted murder in the second degree, assault in the first degree, burglary in thefirst degree and burglary in the second degree. During the course of the ensuing jury trial,the Special Prosecutor learned that, in 2009 and 2010, defense counsel had representedtwo of the People's anticipated witnesses on criminal matters and immediately broughtthe potential conflict of interest to County Court's attention. After a lengthy discussionwith the parties, County Court granted defendant's motion for a mistrial.[FN1] Following a subsequentnonjury trial, defendant was found guilty as charged and sentenced to a prison term of 22years to life on the conviction for attempted murder in the first degree and to lesserconcurrent prison terms on the remaining convictions. Thereafter, defendantunsuccessfully moved, pursuant to CPL 440.10, to vacate the judgment of conviction.Defendant appeals from the judgment of conviction and, by permission, from the orderdenying his CPL article 440 motion.[FN2]
Defendant argues that his retrial was barred by the prohibition against doublejeopardy and that, therefore, the indictment must be dismissed. Generally, when "amistrial is granted without the consent or over the objection of a defendant, retrial isbarred by double jeopardy protections unless there was 'manifest necessity' for themistrial or 'the ends of public justice would otherwise be defeated' " (People vFerguson, 67 NY2d 383, 388 [1986], quoting United States v Perez, 22 US579, 580 [1824]; see Matter of Davis v Brown, 87 NY2d 626, 630 [1996];Matter of Enright v Siedlecki, 59 NY2d 195, 199-200 [1983]). In contrast, if thedefendant requests or consents to a mistrial, double jeopardy will not preclude a retrial,unless the defendant can demonstrate prosecutorial or judicial misconduct intended toprovoke a mistrial (see Matter ofGorghan v DeAngelis, 7 NY3d 470, 473 [2006]; Matter of Davis vBrown, 87 NY2d at 630; Matter of Robar v LaBuda, 84 AD3d 129, 134[2011]).
Upon learning of defense counsel's potential conflicts of interest, County Courtengaged in a lengthy colloquy with the parties, during which they explored—to noavail—ways to avoid the conflict, including the possibility of the SpecialProsecutor foregoing testimony from the witnesses. The court explained the ramificationsof the conflict to defendant more than once, emphasizing that defense counsel's ethicalobligations to his prior clients—the intended prosecution witnesses—could"impact his ability to cross-examine them as vigorously or as effectively or as thoroughlyas he otherwise would." Following this explanation, County Court presented defendantwith the choice to waive any conflict and proceed with his assigned counsel or requestthe assignment of new counsel, thereby necessitating a mistrial and a retrial. Althoughdefendant asserted that he did not "want to do this again," he also expressed discomfortwith being at a disadvantage should his assigned counsel be unable to fullycross-examine either of the prosecution witnesses and ultimately stated, "I'd like to seeknew counsel, I guess." Later, in response to County Court's additional queries, defendantconfirmed that he wanted a new attorney and reasserted his unwillingness to waive anypotential conflict of interest. Thereafter, County Court asked if there was an applicationfor a mistrial, to which defendant—through his assigned counsel—statedthat there was.[FN3]Upon our review of the entire colloquy, we find that defendant requested and, thus,consented to a mistrial (seePeople v Musmacher, 38 AD3d 920, 921 [2007], lv denied 8 NY3d 988[2007]; see generally People v Ferguson, 67 NY2d at 389). Inasmuch as therecord wholly belies defendant's further contention that County Court and/or the SpecialProsecutor deliberately engaged in misconduct intended to provoke a mistrial,defendant's retrial was not barred by double jeopardy protections (see People vJefferson, 248 AD2d 815, 816 [1998], lv denied 92 NY2d 926 [1998];People v Arduini, 222 AD2d 965, 966 [1995], lv denied 87 NY2d 1016[1996]; People v Gemmill, 146 AD2d 951, 952-953 [1989]).
Defendant's remaining contentions—raised in his pro se supplementalbrief—are unavailing.
Lynch, J.P., Devine, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment and order are affirmed.
Footnote 1:After County Courtgranted the mistrial, defendant commenced a CPLR article 78 proceeding seeking toprohibit the People from retrying the case (Matter of Ellis v Cawley, 154 AD3d 1225 [2017],appeal dismissed 30 NY3d 1087 [2018]). This Court ultimately dismissed thepetition on mootness grounds (id.).
Footnote 2:Defendant has not raisedany arguments relating to his appeal from the denial of his CPL 440.10 motion and,therefore, said appeal is deemed abandoned (see People v McCorkle, 67 AD3d 1249, 1250 n [2009]; People v Gibson, 2 AD3d969, 970 n 1 [2003], lv denied 1 NY3d 627 [2004]).
Footnote 3:Defense counsel'srequest for a mistrial comported with defendant's express desire for the assignment ofnew counsel and, further, was consistent with defendant's right to conflict-freerepresentation (see People vPayton, 22 NY3d 1011, 1013 [2013]; People v Wright, 129 AD3d 1217, 1217 [2015],affd 27 NY3d 516 [2016]). Thus, we find no merit to defendant's assertion thathis assigned counsel during the jury trial rendered ineffective assistance of counsel byrequesting the mistrial.