The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
This petition for habeas corpus is brought pro se by a state court prisoner pursuant to 28 U.S.C. § 2254. The petitioner challenges his conviction and his sentence on a number of constitutional grounds: (i) that the trial judge's sua sponte declaration of a mistrial was an abuse of discretion and improper and, therefore, that the subsequent trial constituted double jeopardy, (ii) that he was denied effective assistance of counsel, (iii) that the statute under which he was sentenced was unconstitutional as applied to the facts of his case, and (iv) that he was denied a speedy trial. For the reasons stated below, this petition is dismissed.
On March 31, 1977, petitioner was indicted by the Grand Jury of Orange County for the crimes of Criminal Sale of a Controlled Substance in the Second Degree, Criminal Sale of a Controlled Substance in the Third Degree, and two counts of Criminal Possession of a Controlled Substance. The case involved a transfer of approximately three and a half grams of cocaine. Defendant was tried and convicted as charged and was sentenced to a period of six years to life on April 19, 1978. This judgment of conviction was reversed by the Appellate Division of the New York State Supreme Court on July 16, 1979 and the case was remanded for a new trial. A second trial commenced on November 26, 1979 and ended in a mistrial on December 6, 1979. Petitioner was brought to trial a third time on February 13, 1980. He was convicted as charged and sentenced to a period of six years to life on April 16, 1980.
On January 19, 1981 the petitioner moved to vacate the order of the trial court on the grounds that he was denied the effective assistance of counsel and that his rights of protection against double jeopardy were violated by the declaration of mistrial and subsequent retrial. Following an April 13, 1981 hearing, the motion to vacate was denied. The Appellate Division, Second Department, of the New York State Supreme Court, unanimously affirmed petitioner's conviction on December 31, 1981. His application for leave to appeal to the New York State Court of Appeals was denied on March 12, 1982.
Petitioner argues that the declaration of a mistrial by the trial judge at his second trial violated the Constitution's double jeopardy clause. A mistrial was declared after the jury foreman collapsed at the entrance of the jury room during deliberations. There were no alternate jurors available to fill the vacant seat because both alternates had been seated during the trial due to the illness of two of the original jurors.
Testimony at the hearing held on petitioner's motion to vacate the verdict showed that the foreman was examined at the time of his collapse by Dr. Russell Johnson, Health Commissioner of Orange County. Dr. Johnson had advised the court that in his opinion the foreman had suffered a heart attack. After the foreman was taken from the jury room by ambulance to the hospital, the court sua sponte declared a mistrial without obtaining the consent of the petitioner.
When a mistrial is declared without the consent of the defendant, a new trial may be held without violating the double jeopardy clause if there was a "manifest necessity" for the mistrial. Arizona v. Washington, 434 U.S. 497, 505 (1978). The trial judge's decision to declare a mistrial is entitled to "special respect." Id. at 510. In order to protect a defendant's constitutionally protected interests, however, "reviewing courts have an obligation to satisfy themselves that . . . the trial judge exercised "sound discretion" in declaring a mistrial." Id. at 514. I am satisfied that the trial judge exercised "sound discretion" in declaring a mistrial on December 6, 1979.
When the foreman of petitioner's second jury suffered a heart attack and was removed to the hospital there were left only eleven jurors. The unavailability of an irreplacable juror has been held to necessitate a mistrial. See United States v. Smith, 621 F.2d 350 (9th Cir. 1980), cert. denied, 449 U.S. 1087 (1981); United States v. Potash, 118 F.2d 54 (2d Cir. 1941); see also Dunkerley v. Hogan, 579 F.2d 141, 148 n.7 (2d Cir. 1978), cert. denied, 439 U.S. 1090 (1979); People v. Portalatin, 105 Misc.2d 725, 433 N.Y.S.2d 57, 58 (Queens County 1980). The trial judge's failure to articulate, on the record, all the factors he considered before declaring a mistrial, does not necessitate a finding that he abused his discretion. Arizona v. Washington, 434 U.S. at 517; Dunkerley v. Hogan, 579 F.2d at 146 n.5. Moreover, there is no indication that Peters' attorney ever objected to the mistrial or suggested possible alternatives, such as a jury of eleven. I conclude, therefore, that the trial judge soundly exercised his discretion.
2. Effective Representation
Petitioner contends that he was deprived of adequate assistance of competent counsel because the trial judge denied defense counsel's application for a three day continuance at the commencement of his third trial. In his brief to the Appellate Division, petitioner argued that the continuance was necessary to his defense since defense counsel, having been on the case for only one month, needed the extra time to familiarize himself with the lengthy transcripts of the preceding two trials. He also claimed that he was ill at the time and unable to assist his lawyer. Finally, he argued ...