Rivera v. Firetog

Proceeding pursuant to CPLR article 78 in the nature of pro [958] hibition, inter alia, to prohibit the respondents from retrying the petitioner in a criminal action entitled People v Rivera, pending in the Supreme Court, Kings County, under indictment No. 1453/05, on the ground that retrial would violate his right not to be twice placed in jeopardy for the same offense. Adjudged that the petition is granted, on the law, without costs or disbursements, and the respondents are prohibited from retrying the petitioner in the criminal action entitled People v Rivera pending under Kings County indictment No. 1453/05. The petitioner was indicted for murder in the second degree and criminal possession of a weapon in the fourth degree arising from a barroom confrontation that ended in a stabbing death. At a trial on the indictment, the jury was charged on murder in the second degree and the lesser-included offenses of manslaughter in the first degree and manslaughter in the second degree. The jury was instructed to reach the manslaughter counts only if it acquitted the defendant on the murder count. During the course of the deliberations, which spanned six days, the jury, inter alia, requested various read backs and instructions relevant to the manslaughter counts. Thus, there was some evidence that the jury had reached a verdict on the murder count. However, the trial court denied several requests by defense counsel to inquire whether a partial verdict had been reached. On the sixth day of deliberations, a mistrial was declared after the jury sent the Trial Justice a note stating, “we cannot come to a unanimous decision.” The petitioner commenced this proceeding pursuant to CPLR article 78 to prohibit the respondents from retrying him on the indictment on the ground of double jeopardy. We grant such relief. The Double Jeopardy Clauses of the state and federal constitutions protect an accused from being placed twice in jeopardy for the same offense (see People v Baptiste, 72 NY2d 356, 359 [1988]; Matter of Smith v Marrus, 33 AD3d 708, 709 [2006]; US Const 5th Amend; NY Const, art I, § 6). In a jury trial, jeopardy attaches once the jury is empaneled and sworn (see People v Ferguson, 67 NY2d 383, 388 [1986]; Matter of Smith v Marrus, supra; CPL 40.30 [1] [b]). “As a general rule, the prosecutor is entitled to one, and only one, opportunity to require the accused to stand trial, for a defendant possesses a ‘valued right’ to have his trial completed by a particular tribunal on the first presentation of the evidence” (People v Baptiste at 359-360; see People v Ferguson, supra; Matter of Smith v Marrus, supra). This valued right, however, may be subordinated to the public interest in seeing that a criminal prosecution proceed [959] to verdict (see People v Baptiste at 360). A “classic example” of charges that may be retried when the first trial has been aborted without the defendant’s consent is presented when the jury reaches an impasse and is unable to arrive at a verdict, i.e., deadlock (People v Baptiste, supra; see also Matter of Smith v Marrus, supra). Whether a jury is deadlocked and a mistrial is required is a determination within the discretion of the trial judge, and the exercise of such discretion is entitled to great deference (see People v Baptiste, supra; Matter of Smith v Marrus, supra). However, it is not unbounded. “In the words of Justice Story, the court’s power to declare a mistrial must be exercised with the ‘greatest caution, under urgent circumstances, and for very plain and obvious causes’; the authority to discharge the jury is limited to those situations where, ‘taking all the circumstances into consideration, there is a manifest necessity for the act’ (United States v Perez, 9 Wheat [22 US] 579, 580 [1824])” (People v Baptiste at 360). It is also “indispensibly necessary that it appear that prior to declaring such a mistrial, the trial Judge has properly explored the appropriate alternatives, and that there is a sufficient basis in the record for a mistrial” (Matter of Rubenfeld v Appelman, 230 AD2d 911, 912 [1996] [internal quotation marks omitted]). The People have the burden of demonstrating that the declaration of a mistrial was manifestly necessary (see People v Ramchair, 308 AD2d 601, 602 [2003]; Matter of Rubenfeld v Appelman, supra). Here, in light of the evidence that the jury had reached a verdict on the murder count, and defense counsel’s repeated requests for an inquiry as to a partial verdict, the trial court’s declaration of a mistrial on that count without any inquiry into the alternative of taking a partial verdict was an improvident exercise of discretion and was not manifestly necessary under all of the circumstances (see Matter of Robles v Bamberger, 219 AD2d 243, 247-248 [1996]; cf. Matter of Oliver v Justices of N.Y. Supreme Ct. of N.Y. County, 36 NY2d 53, 56-59 [1974]). Thus, the retrial of the petitioner on that count is barred by principles of double jeopardy. In addition, the petitioner may not be retried on the charge of criminal possession of a weapon in the fourth degree, as that count was dismissed by the trial court (see CPL 310.60 [2]; cf. People v Gravesandy, 221 AD2d 465 [1995]; People v Williams, 133 AD2d 717, 718-719 [1987]). However, the record supports a finding that there was a manifest necessity to declare a mistrial on the manslaughter counts. There was no indication that the jury reached a verdict as to these charges, despite deliberations that spanned six days, and the jury repeatedly advised the court that it was unable to reach a verdict. Therefore, the petitioner may be retried on the charges of man [960] slaughter in the first degree and manslaughter in the second degree (see Matter of Dissell v Adams, 115 AD2d 1006, 1008 [1985]). Although the petitioner may not be retried on the present indictment, as it only charged him with murder in the second degree and criminal possession of a weapon in the fourth degree (id.), nothing prevents the People from re-presenting any appropriate charges to another grand jury (see People v Gonzalez, 61 NY2d 633, 635 [1983]; People v Beslanovics, 57 NY2d 726, 727 [1982]; People v Daniel, 37 AD3d 731, 732 [2007]; People v Lauderdale, 295 AD2d 539, 540 [2002]). Crane, J.P., Ritter and Carni, JJ., concur.