Gentil v. Margulis

Decision Date24 September 2014
Docket Number2013-10554
Citation120 A.D.3d 1414,993 N.Y.S.2d 115,2014 N.Y. Slip Op. 06314
PartiesIn the Matter of Estevan GENTIL, petitioner, v. Ira MARGULIS, etc., et al., respondents.
CourtNew York Supreme Court — Appellate Division

120 A.D.3d 1414
993 N.Y.S.2d 115
2014 N.Y. Slip Op. 06314

In the Matter of Estevan GENTIL, petitioner
v.
Ira MARGULIS, etc., et al., respondents.

2013-10554

Supreme Court, Appellate Division, Second Department, New York.

Sept. 24, 2014.


993 N.Y.S.2d 116

Garnett H. Sullivan, South Hempstead, N.Y., for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Charles Sanders of counsel), for respondent Ira Margulis.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Nancy Fitzpatrick Talcott of counsel), respondent pro se.

RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondents from retrying the petitioner on counts two and three of the indictment in a criminal action entitled People v. Gentil, pending in the Supreme Court, Queens

120 A.D.3d 1415

County, under Indictment No. 623/12, on the ground that to do so would subject him to double jeopardy.

ADJUDGED that the petition is granted, on the law, without costs or disbursements, and the respondents are prohibited from retrying the petitioner on counts two and three in the criminal action entitled People v. Gentil, pending under Queens County Indictment No. 623/12.

The defendant was charged with two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b] ; [3] ) and one count of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1 ] ), and these charges were tried before a jury. After approximately 1 ½ days of deliberations, the jury sent a note to the Trial Justice stating that it was unable to reach a verdict on counts two and three. The defendant requested that the Supreme Court accept a partial verdict on count one, but the court denied this request and instructed the jury to continue deliberating. The following day, one of the jurors informed the court that there had been an emergency in his family and that he did not feel that he was able to give the deliberations his full attention. After a colloquy between the juror and the court, and at the court's urging, the defendant moved to discharge this juror. The defendant also renewed his request that the court accept a partial verdict.

993 N.Y.S.2d 117

The court again declined to accept a partial verdict. The court granted the motion to discharge the juror. Noting that the defendant had declined to consent to the substitution of one of the alternate jurors, the court, on its own motion, immediately declared a mistrial. Thereafter, the defendant moved to dismiss the indictment, contending that the Supreme Court erred in declining to accept a partial verdict, and that retrial of the indictment as a whole subjected him to double jeopardy. The court agreed that it erred in declining to accept a partial verdict as to count one, but dismissed only that count of the indictment, finding that, under these circumstances, retrial of counts two and three were not barred by double jeopardy principles.

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