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In Re Jamal Morris, Petitioner v. Hon. Leonard Livote

February 21, 2013


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

Matter of Morris v Livote

Appellate Division, First Department

Decided on February 21, 2013

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.

David B. Saxe,J.P. Helen E. Freedman Sallie Manzanet-Daniels Judith J. Gische, JJ.

In this article 78 proceeding, petitioner seeks to prohibit respondents from retrying him under Bronx County Indictment Number 4334/10.


In this CPLR article 78 proceeding, petitioner seeks a writ of prohibition barring respondents from retrying him on criminal charges after his first prosecution ended with the trial court declaring a mistrial on the People's motion and without petitioner's consent. We grant the application because there was no manifest necessity for a mistrial, and accordingly retrial is barred under the Double Jeopardy Clauses of the Federal and New York State Constitutions (US Const 5th Amend; NY Const, art I, § 6; see also Matter of Enright v Siedlecki, 59 NY2d 195, 199-201 [1983]).

In 2010, petitioner was charged with criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds. The case was tried in September 2012. Before jury selection, defense counsel moved in limine for, among other things, permission to cross-examine Detective Leslie Gauvin, the arresting police officer, about a federal civil lawsuit for false arrest that one Jesus Rosario had filed against him in 2007, which had been settled for $25,000. The People then informed the court and the defense that it did not plan to call Detective Gauvin as a witness, and the court determined that the motion in limine was moot.

Defendant's trial commenced on September 24, 2012. The prosecution first called Sergeant Edward Wynne, who supervised the undercover buy and bust operation. The Sergeant testified that he was stationed in a car with Detective Gauvin during the operation and saw an undercover officer interact with petitioner on the street. Thereafter, the officer radioed Sergeant Wynn and Detective Gauvin that he had purchased drugs from petitioner, whereupon the Sergeant and the Detective arrested petitioner. Sergeant Wynn also testified that he saw Detective Gauvin recover prerecorded "buy" money from petitioner's pocket.

After Sergeant Wynn completed his testimony and a New York Police Department criminalist testified that the substance sold to the undercover officer was cocaine, defense counsel then stated that, if the People did not call Detective Gauvin, counsel would request that the court give a missing witness instruction to the jury. After the court agreed to give the charge, the prosecution indicated that it was reconsidering whether to call Detective Gauvin and asked for a ruling on defendant's motion in limine. The court ruled that the monetary settlement of the civil suit provided a good faith basis for defense counsel to question the Detective about his alleged bad acts and that he was "free to answer yes or no as to whether he did any of the particular things alleged." The court ruled, however, that it would not allow defense counsel to introduce any collateral evidence of the allegations.

The day concluded with the testimony of another participant in the undercover operation who followed the undercover buyer on the street and also observed his interaction with petitioner. On the next day of trial, the People called Detective Gauvin. On direct examination, the Detective testified that he could not remember anything about the circumstances surrounding petitioner's arrest except that he had assisted in the incident.

On cross-examination, defense counsel asked Detective Gauvin whether it was true that in September 2007 one Jesus Rosario had filed a civil rights lawsuit against him in federal court. Before the witness answered, the People objected and counsel approached the bench. Thereafter, the judge stated on the record that, at the sidebar conference, he had instructed defense counsel that while he could ask Detective Gauvin about the alleged bad ...

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