Application pursuant to CPLR article 78 in the nature of prohibition seeking, on the ground of double jeopardy, to prevent retrial of petitioners before respondent Justice under New York County Indictment 2420/08, denied, and the proceeding dismissed, without costs.
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.
Tom, J.P., Sweeny, McGuire, DeGrasse, Freedman, JJ.
All concur except DeGrasse and Freedman, JJ. who concur in a separate memorandum by Freedman, J.; Sweeny and McGuire, JJ. who concur in a separate memorandum by McGuire, J. and Tom, J.P. who dissents in a memorandum as follows:
FREEDMAN, J. (concurring)
The original trial court was not compelled by manifest necessity to declare a mistrial and terminate the proceedings after two days of deliberations (see Matter of Randall v Rothwax, 78 NY2d 494, 498 , cert denied sub nom Morgenthau v Randall, 503 US 972 ), because the court reasonably could have asked the jury to continue deliberating past 5:00 p.m. on the date the trial was terminated, a Friday. Although two of the jurors indicated that they had scheduling problems during the following week, the court had already directed them to report for deliberations on the following Monday. Moreover, the court failed to confirm that the jury was hopelessly deadlocked either by polling the jurors or by asking the foreperson in the presence of the jury whether a unanimous verdict could be reached in a reasonable amount of time (see People v Duda, 45 AD3d 1464, 1465 , lv denied 10 NY3d 764 ; Matter of Guido v Berkman, 116 AD2d 439, 443 ).
However, the need for manifest necessity for the mistrial was obviated by petitioners' consent, which can be implied from the circumstances (see People v Ferguson, 67 NY2d 383, 388-389 ). Defense counsel were aware and had discussed with the court that the jury sent a note on Friday morning stating that it was at an impasse on some counts, that later two jurors had claimed that they could not resume deliberations the following week, and that there were no alternates available for substitution. After receiving a second note on Friday afternoon stating that the jury was at an impasse, the court stated that it was inclined to take a partial verdict and declare a mistrial as to the remaining counts, and asked counsel if they wished to be heard. One of petitioners' counsel said "no" and the other remained silent. Immediately thereafter, the court called in the jury, took a verdict of not guilty on the first two counts, and asked counsel if they had "anything for the record." After defense counsel again remained silent, the court thanked the jury for its service and discharged it. It was only at that point that defense counsel asked that the jury be held, and, after the court stated that it was declaring a mistrial "so that the record is clear," counsel first registered their objection. Under the circumstances, the court by its actions was carrying out its previously announced intention to terminate the trial. Defense counsel had been given ample notice of that intention and an opportunity to be heard. Accordingly, counsel's failure to object when the court invited them to speak, or at the latest before the jury was discharged, constituted implied consent sufficient to deny petitoners' application (see id. at 386-387, 389).
I agree the petition should be dismissed because petitioners (the defendants in the underlying criminal prosecution) implicitly consented to the mistrial. Additional discussion of the relevant facts and legal principles, however, is warranted. I also agree with Justice Berkman that "[t]he declaration of a mistrial was within the court's discretion, and a retrial of the undecided count would not offend the double jeopardy rule."
After an eight-day trial, the court submitted to the jury the three counts of robbery charged in the indictment (attempted first-degree robbery and two counts of attempted second-degree robbery) and the lesser included offense of attempted third-degree robbery. Deliberations commenced on a Thursday and the jury, throughout the course of that day, requested exhibits, a readback of testimony and additional instruction on the law. The next morning, the jury requested additional exhibits, another readback of testimony and instruction. The jury also reported that it had reached an agreement on one count, was close to an agreement on another and was at an "impasse" on the remaining two counts. The court declined the invitation of defendants to take a partial verdict. Rather, after providing the additional readback and instruction the jury had requested, the court gave the jury a modified Allen charge (Allen v United States, 164 US 492 ). Early that afternoon, the court responded to additional requests for readbacks of testimony and legal instruction. In addition, the court substituted an alternate juror for a juror who was traveling out of town and had to make a flight. At that juncture, there were no remaining alternates. However, two other jurors, jurors 3 & 8, asked to be relieved from service due to obligations they had that required them to be out of state; one juror was scheduled to leave on Sunday and the other on Monday morning. Explaining that there were no alternates, the court advised the jurors that they would have to return on Monday if a verdict was not returned by the end of the day. Late that afternoon, at about 5:30 p.m., the jury sent another "impasse" note. That is, although the jury reported that it had reached a verdict on two counts, it declared anew that it remained "at an impasse" on the remaining counts. Another note renewed the request of juror 8 to be released from jury duty.
After the court made the notes available to counsel and reported their contents, the following occurred:
The Court: My inclination is to take the verdict and declare a mistrial as to the other charges.
[The Prosecutor]: I guess that sounds like where we're going, Judge.
The Court: Do counsel want to be heard?
[Counsel for defendant Eddy Marte]: No.
The Court: Okay. If there is nothing else, we'll ...