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Rivera v. Firetog

December 2, 2008


The opinion of the court was delivered by: Graffeo, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

In this CPLR article 78 proceeding, petitioner seeks to bar respondents from retrying him for murder on double jeopardy grounds. Petitioner was previously charged with murder and lesser included manslaughter offenses but his trial on those charges ended with a mistrial based on jury deadlock. The issue here is whether the trial judge abused his discretion when he declared a mistrial without first asking the jury whether it had reached a partial verdict, as requested by defense counsel. Under the circumstances of this case, we hold the trial court did not abuse its discretion and petitioner's reprosecution for murder is not precluded by double jeopardy principles.

Facts and Procedural History

Petitioner Enrique Rivera was indicted for murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) arising from a barroom confrontation that resulted in a stabbing death. After a five-day trial in Supreme Court, the trial judge submitted to the jury the second-degree murder count as well as the lesser included offenses of manslaughter in the first degree (intentional manslaughter Penal Law § 125.20 [1]) and manslaughter in the second degree (reckless manslaughter Penal Law § 125.15 [1])*fn1. In accordance with People v Helliger (96 NY2d 462 [2001]), the court instructed the jury to consider the first-degree manslaughter count only if it first acquitted Rivera of the murder count and to consider the second-degree manslaughter count only if it found Rivera not guilty of first-degree manslaughter.

During the second day of deliberations, the jury returned a note indicating it could not reach a unanimous verdict and that it was split on Rivera's guilt. The note did not indicate the count on which the jury disagreed. The court asked the prosecutor and defense counsel whether it should ask about the possibility of a partial verdict, but both sides rejected the offer. Instead, the judge instructed the jury to continue deliberating.*fn2

The following day, in response to a jury question, the trial judge reinstructed the jury on all three counts. Later that day, the jury issued another note seeking clarification of the terms "bodily harm" and "reckless action." Interpreting the note to refer to the two manslaughter counts, the court again read its instructions on those two counts to the jury, with a reminder that the jurors must consider the second-degree manslaughter charge only if they first found Rivera not guilty of first-degree manslaughter. After a brief period of deliberations, the jury sent a second deadlock note. With the consent of the parties, the trial judge gave the jury an Allen charge (see Allen v United States, 164 US 492 [1896]).

On the fourth day of deliberations, the court complied with the jury's request to provide it with a written copy of all three charges. The jury later returned a note advising that one of the jurors had air travel plans that evening. After discussions with counsel, the court suggested that a question be posed to the jury regarding whether it had reached a verdict on any of the counts. The prosecutor objected, asserting that the jury had given no indication that it had reached a verdict on any of the three counts. Defense counsel countered that there was some indication the jury had progressed past the first count and requested the court to inquire about the possibility of a partial verdict. The judge agreed that there was an inference that the jury may have moved past the top count, but noted that the jury never declared that it had reached a partial verdict. The judge decided not to ask about a partial verdict and the case was adjourned for the weekend.

Deliberations resumed on Monday morning, at which time the jury requested a copy of the "explanation of criteria" for all three charges. The court supplied the requested information. In the afternoon of the sixth day of deliberations, the jury asked again for further clarification regarding all three charges and the court complied. The jury subsequently submitted a third deadlock note, stating that "after five and a half days of much discussion and review of the court exhibits and reading of the court testimonies, opinions remain unchanged and we cannot come to a unanimous decision." The prosecutor moved for a mistrial and defense counsel requested an inquiry into the possibility of a partial verdict in view of the "extraordinary amount of time" that the jury had deliberated. In response, the prosecutor asserted that there was no suggestion that the jury had reached a partial verdict because it had repeatedly asked for a copy of all three counts.

The trial court declared a mistrial, declining to ask the jury if it had reached a partial verdict. The court observed that it had no duty to inquire since CPL 310.70 (1) requires the taking of a partial verdict only if the jury "declares" that it has reached a verdict. The court determined that any inquiry at this point "would be suggesting that they have to reach at least some form of verdict," which the court feared could be coercive.

Months later, Rivera filed a written motion to dismiss the indictment on double jeopardy grounds, arguing that the trial court's refusal to question whether the jury had attained a partial verdict barred retrial. Supreme Court denied the motion.

Rivera then commenced this article 78 proceeding in the nature of prohibition against respondents Neil Jon Firetog, a Justice of the Supreme Court, Kings County and Charles J. Hynes, District Attorney, Kings County, seeking to prevent a retrial. The Appellate Division, with one Justice dissenting, granted the petition. The majority held that the jury's note regarding the manslaughter counts constituted "some evidence" that the jury had reached a verdict on the murder count and found that the trial court abused its discretion in declaring a mistrial (44 AD3d 957, 958 [2d Dept 2007]). Although the majority determined that double jeopardy principles prevented Rivera's retrial on the murder charge, it concluded that he could be retried on the manslaughter counts provided the People re-presented appropriate charges to another grand jury. The dissenting Justice would have denied the petition, finding that retrial of the murder count was not precluded. We granted the District Attorney leave to appeal and now reverse the judgment of the Appellate Division and dismiss the petition.


The District Attorney contends that, under the circumstances of this case, the trial judge providently exercised his discretion in concluding that there was a manifest necessity to declare a mistrial, and that retrying Rivera for murder would therefore not offend the constitutional double jeopardy prohibition. Rivera, joined by amicus New York State Association of Criminal Defense Lawyers, counters that defense counsel's request for a partial verdict, coupled with the indication that the jury had progressed beyond the murder count based on its request for reinstruction on the ...

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