Cohen on Behalf of Redd v. Hanophy

Decision Date12 December 1994
Citation210 A.D.2d 327,620 N.Y.S.2d 293
PartiesIn the Matter of David Louis COHEN, on Behalf of Derrick REDD, etc., Petitioner, v. Robert J. HANOPHY, etc., et al., Respondents.
CourtNew York Supreme Court — Appellate Division

David Louis Cohen, petitioner pro se.

Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie, John M. Castellano, and William R. Horwitz, of counsel), Dist. Atty., Queens County, pro se.

Proceeding pursuant to CPLR article 78 to prohibit the respondents from retrying the petitioner under Queens County Indictment No. 5249/92 on the ground that retrial would violate his right not to be twice placed in jeopardy for the same offense.

ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.

Where a mistrial is declared without the consent of, or over the objection of the defendant, the principles of double jeopardy will bar a retrial for the same offense unless there is a manifest necessity for the mistrial (see, e.g., Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 200, 464 N.Y.S.2d 418, 451 N.E.2d 176; People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134). In the instant case, the Trial Judge properly declared a mistrial on the ground of manifest necessity when it appeared possible that he might be called to testify as to whether or not a prosecution witness made a deal with the People in exchange for his cooperation. Moreover, we do not find that the actions of the People rise to the level of misconduct required to bar a retrial under the same indictment. Accordingly, the proceeding must be dismissed.

MANGANO, P.J., and THOMPSON, BRACKEN, SULLIVAN and BALLETTA, JJ., concur.

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6 cases
  • Romero v. Justices of Supreme Court, Queens County
    • United States
    • New York Supreme Court — Appellate Division
    • 3 Marzo 1997
    ... ... , the court clerk received a telephone call from someone calling on behalf of Juror No. 11. The caller stated that Juror No. 11 was unable to appear ... Appelman, 230 A.D.2d 911, 646 N.Y.S.2d 879; Matter of Cohen [Redd] v. Hanophy, 210 A.D.2d 327, 620 N.Y.S.2d 293). In determining ... ...
  • People v. Holland
    • United States
    • New York Supreme Court — Appellate Division
    • 23 Marzo 1998
    ...195, 199-200, 464 N.Y.S.2d 418, 451 N.E.2d 176; Matter of Rubenfeld v. Appelman, 230 A.D.2d 911, 646 N.Y.S.2d 879; Matter of Cohen v. Hanophy, 210 A.D.2d 327, 620 N.Y.S.2d 293). "Although the trial court's view as to the necessity for discharging the jury is entitled to deference, its discr......
  • Rubenfeld on Behalf of Walters v. Appelman
    • United States
    • New York Supreme Court — Appellate Division
    • 26 Agosto 1996
    ...Davis v. Brown, supra; Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 199-200, 464 N.Y.S.2d 418, 451 N.E.2d 176; Matter of Cohen v. Hanophy, 210 A.D.2d 327, 620 N.Y.S.2d 293). However, the right to have one's case decided by the first empaneled jury is not absolute, and a mistrial granted a......
  • Kleigman v. Justices of the Supreme Court
    • United States
    • New York Supreme Court — Appellate Division
    • 25 Julio 2001
    ... ... , 199-200; Matter of Rubenfeld v Appelman, 230 A.D.2d 911; Matter of Cohen v Hanophy, 210 A.D.2d 327). In determining whether such manifest necessity ... ...
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