July 3, 2013
In the Matter of Eric Taylor, petitioner,
Deborah A. Dowling, etc., et al., respondents.
Steven Banks, New York, N.Y. (Robert C. Newman of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Susan Anspach of counsel), for respondent Deborah A. Dowling.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel), respondent pro se.
REINALDO E. RIVERA, J.P. JOHN M. LEVENTHAL SANDRA L. SGROI JEFFREY A. COHEN, JJ.
DECISION & JUDGMENT
Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondents from retrying the petitioner in a criminal action entitled People v Taylor, pending in the Supreme Court, Kings County, under Indictment No. 69/11, on the ground that retrial would violate his constitutional right not to be twice placed in jeopardy for the same offense.
ADJUDGED that the petition is granted, on the law, without costs or disbursements, and the respondents are prohibited from retrying the petitioner in the criminal action entitled People v Taylor, pending under Kings County Indictment No. 69/11.
The petitioner, Eric Taylor, was charged under Kings County Indictment No. 69/11 with attempted murder in the second degree, attempted assault in first degree, assault in the second degree, and criminal possession of a weapon in the fourth degree, following an incident where the petitioner stabbed the complainant multiple times with a pocket knife. During voir dire, the Supreme Court read and defined the counts of the indictment for each panel of prospective jurors. At the jury trial, the complainant testified that he was unarmed when the petitioner punched and stabbed him with a pocket knife. By contrast, the petitioner testified that the complainant first punched him and approached him with a knife and, thereafter, he stabbed the complainant in self-defense.
At the close of the evidence, the Supreme Court granted the petitioner's motion to dismiss the count of attempted murder in the second degree on the ground that the evidence was legally insufficient to support it; however, the jury was not advised of this determination. The court, however, warned the petitioner's trial counsel that it would declare a mistrial if, in his summation, he referred to the court's determination to dismiss that count, or argued that the evidence was insufficient to support it.
During his summation, the petitioner's trial counsel argued that the complainant had a motive to lie about who initiated the altercation because, according to the petitioner's account, it was the complainant who would "have been the one placed under arrest for attempted murder." Over the objection of the petitioner's trial counsel, the Supreme Court, sua sponte, declared a mistrial on the ground that counsel had ignored its earlier warning and violated its directive. The court determined that this violation by the petitioner's trial counsel could not be remedied by a curative instruction because the warning had been designed to avoid reminding the jury that the petitioner had originally been charged with attempted murder in the second degree, and that further discussion of the dismissed count would only reinforce the prejudice to the People.
After a retrial was scheduled, the petitioner commenced the instant proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondents from retrying him.
The double jeopardy clauses of the New York and United States Constitutions protect a defendant from twice being put in jeopardy of criminal prosecution for the same offense (see U.S. Const, 5th Amend; NY Const art I, § 6; Matter of Davis v Brown, 87 N.Y.2d 626, 629-630; People v Baptiste, 72 N.Y.2d 356; Matter of Smith v Brown, 105 A.D.3d 965, 967; Matter of Morris v Livote, 105 A.D.3d 43, 47). In a jury trial, once the jury is empaneled and sworn, jeopardy attaches (see CPL 40.30[b]; People v Ferguson, 67 N.Y.2d 383), and the defendant has a "valued right to have his [or her] trial completed by a particular tribunal" (Matter of Smith v Marrus, 33 A.D.3d 708, 709 [internal quotation marks omitted]; see Illinois v Somerville, 410 U.S. 458, 463; Matter of Smith v Brown, 105 A.D.3d at 967).
" [W]hen a mistrial is granted over the defendant's objection or without the defendant's consent, double jeopardy will, as a general rule, bar retrial'" (People v Hambrick, 96 A.D.3d 972, 973, quoting Matter of Davis v Brown, 87 N.Y.2d at 630; see Matter of Enright v Siedlecki, 59 N.Y.2d 195, 199-200). "However, the right to have one's case decided by the first empaneled jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial" (Matter of Rubenfeld v Appelman, 230 A.D.2d 911, 911; see Matter of Davis v Brown, 87 N.Y.2d at 630; Matter of Enright v Siedlecki, 59 N.Y.2d at 199-200). A mistrial declaration under the statutory provisions likewise requires a determination of manifest necessity (see CPL 280.10, ; Matter of Enright v Siedlecki, 59 N.Y.2d at 200).
"Manifest necessity" means "a high degree of necessity"; "the reasons underlying the grant of a mistrial must be necessitous, actual and substantial" (Matter of Cohen v Lotto, 19 A.D.3d 485, 486 [internal quotation marks omitted]; see Arizona v Washington, 434 U.S. 497, 505; Matter of Enright v Siedlecki, 59 N.Y.2d at 200). " Even if the reasons for granting a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to granting a mistrial'" (Matter of Cohen v Lotto, 19 A.D.3d at 487, quoting Matter of Pronti v Allen, 13 A.D.3d 1034, 1036; Matter of Rubenfeld v Appelman, 230 A.D.2d at 912). Mistrials premised on the prejudicial effect of improper evidence or argument are entitled to "great deference" (Arizona v Washington, 434 U.S. at 514), since "the Trial Judge, better than any other, ... can detect the ambience of partiality" (People v Michael, 48 N.Y.2d 1, 10; see Matter of Enright v Siedlecki, 59 N.Y.2d at 200-201; People v Hambrick, 96 A.D.3d at 974). Nonetheless, the trial judge must "temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his [or her] confrontation with society through the verdict of a tribunal he [or she] might believe to be favorably disposed to his [or her] fate" (Arizona v Washington, 434 U.S. at 514 [internal quotation marks omitted]).
Here, the trial court improvidently exercised its discretion in determining that a mistrial was a manifest necessity. During summation, the petitioner's trial counsel did not violate the trial court's directive to refrain from referencing the dismissed count of attempted murder in the second degree. In any event, even if the reasons for granting a mistrial are deemed actual and substantial, as stated previously, the trial court must explore appropriate alternatives, and provide a sufficient basis in the record for resorting to this "drastic measure" (Matter of Capellan v Stone, 49 A.D.3d 121, 126; see Matter of Smith v Brown, 105 A.D.3d at 967; Matter of Morris v Livote, 105 A.D.3d at 47; Matter of Cohen v Lotto, 19 A.D.3d at 486-487; cf. People v Blunt, 273 A.D.2d 146; Matter of Maynard v Wait, 246 A.D.2d 853, 854). Counsel's statement did not cause significant and irreparable prejudice to the People, as the jury was aware that the petitioner was initially charged with attempted murder in the second degree, and reference was made to that count during the trial.
The record indicates that the trial court failed to evaluate the actual harm caused by the subject reference or seriously consider whether a curative instruction would have been an appropriate alternative. The respondents' contentions that the People would have been prejudiced by a curative instruction referring to the dismissed count are not persuasive.
"[W]hen a defendant is about to be prosecuted in violation of his [or her] constitutional right against double jeopardy, we have concluded that the harm that he [or she] would suffer—prosecution for a crime for which he [or she] cannot constitutionally be tried—is so great and the ordinary appellate process so inadequate to redress that harm, that prohibition will lie to raise the claim" (Matter of Rush v Mordue, 68 N.Y.2d 348, 354; see Matter of Cohen v Lotto, 19 A.D.3d at 486). Under the circumstances of this case, the trial court was not justified in concluding that there were no acceptable alternatives to a mistrial. Accordingly, there is an insufficient basis in the record for the declaration of a mistrial and, thus, retrial is precluded.
RIVERA, J.P., LEVENTHAL, SGROI and COHEN, JJ., concur.