The opinion of the court was delivered by: Catterson, 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.
Decided on March 22, 2012
SUPREME COURT, APPELLATE DIVISIONFirst Judicial Department
David B. Saxe, J.P. James M. Catterson Karla Moskowitz Rolando T. Acosta Dianne T. Renwick, JJ.
Marcus B. appeals from an order of disposition, Family Court,Bronx County (Robert R. Reed, J. at fact-finding hearing; Monica Drinane, J. at mistrial declaration; Nancy M. Bannon, J. at dismissal motion and disposition), entered on or about January 26, 2011, which adjudicated appellant a juvenile delinquent upon his admission that he committed an act that, if committed by an adult, would constitute possession or sale of a toy or imitation firearm (Administrative Code of City of NY § 10-131[g]), and placed him with the Office of Children and Family Services for a period of 12 months.
In this case arising from the adjudication of a petition for juvenile delinquency, the declaration of a mistrial due to the presiding Judge's transfer from Family Court to Civil Court was a matter of administrative convenience rather than "manifest necessity." Therefore, the commencement of a new fact-finding hearing violated the appellant's constitutional protection from double jeopardy.
The record reflects that on November 6, 2009, at 5:00 p.m., the appellant was apprehended and arrested for carrying what several detectives allegedly observed was a black semi-automatic firearm. The gun was later discovered to be a BB gun. This case was commenced by the filing of a juvenile delinquency petition against the appellant on November 20, 2009, alleging unlawful possession of weapons by persons under sixteen pursuant to Penal Law § 265.05, and an act that, if committed by an adult, would constitute unlawful possession or sale of a toy or imitation firearm pursuant to Administrative Code of City of NY § 10-131(g). On the date the petition was filed, the Family Court assigned the appellant counsel and remanded him to the Commissioner of Juvenile Justice for detention.
A fact-finding hearing commenced on December 2, 2009. At some point in early January 2010, the Judge presiding over the hearing advised the parties that he would soon be transferred to the Civil Court. On January 26, 2010, when the presentment agency rested its case, the trial transcript reflects that the appellant made a prima facie motion to dismiss the petition which was denied. The appellant then requested a continuance that was also denied. The court informed counsel that she risked a mistrial if she did not finish the case the next day.
The following day, the appellant moved to dismiss on the ground that the Judge was forcing the completion of the trial at the expense of the appellant's right to adequately prepare his defense. The appellant's counsel argued that the witnesses could not be produced that day, and that forcing her to proceed without proper records or preparation was overreaching on the part of the court. The appellant's counsel also argued that the relocation of the Judge for administrative reasons did not constitute "manifest necessity" warranting a mistrial. The motion was denied, and the appellant's attorney objected, but the court adhered to its decision and adjourned the matter to January 29, 2010 for the appellant's counsel to complete presentation of the case.
However, on January 29th, attorneys who served on the 18-b panel with the appellant's counsel advised the court that the appellant's counsel had been hospitalized for a sudden illness. In the absence of the appellant's counsel, the Judge informed the parties that he was advised by the Supervising Judge of the Bronx Family Court to adjourn the matter for a general call on February 3.
On February 3, 2010, while the appellant's counsel was still hospitalized, the Supervising Judge declared a mistrial and adjourned the matter for a new fact-finding hearing. On the day of the hearing, the appellant moved, before a new judge, to dismiss the proceeding on the ground that a new fact-finding hearing subjected him to double jeopardy. The appellant argued that the transfer of the Judge who originally heard the matter to the Civil Court was not a proper ground to declare a mistrial. The court denied the appellant's motion, concluding that the transfer of a judge from one court to a new ...