In re Marcus B.

• Decision Date: 22 March 2012
• Citation: 2012 N.Y. Slip Op. 02178,95 A.D.3d 15,942 N.Y.S.2d 38
• Parties: In re MARCUS B., A Person Alleged to be a Juvenile Delinquent, Appellant.Presentment Agency.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02178

942 N.Y.S.2d 38

95 A.D.3d 15

In re MARCUS B., A Person Alleged to be a Juvenile Delinquent, Appellant.Presentment Agency.

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

March 22, 2012.

Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Larry A. Sonnenshein and Leonard Koerner of counsel), for presentment agency.

DAVID B. SAXE, J.P., JAMES M. CATTERSON, KARLA MOSKOWITZ, ROLANDO T. ACOSTA, DIANNE T. RENWICK, JJ.

CATTERSON, J.

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 N.Y. § 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 court established “manifest necessity,” assuming that everything possible was done to complete the trial while the Judge was still presiding over the matter.

After further adjournments, on March 26, 2010, the appellant admitted to having an imitation gun in his possession in satisfaction of the petition. On January 26, 2011, after a series of hearings, the appellant was adjudicated a juvenile delinquent. The court found that the least restrictive alternative was placement with Office of Children and Family Services for a period of 12 months, with no credit for time served.

On appeal, the appellant argues that the court erred in finding that there was “manifest necessity” for the declaration of a mistrial at the appellant's first fact-finding hearing. Accordingly, the appellant argues that further prosecution violated his constitutional protection from double jeopardy and the petition should have been dismissed. For the reasons set forth below, we agree.

The Double Jeopardy Clauses in the Fifth Amendment to the United States Constitution and in article I, § 6 of the New York Constitution protect an accused against multiple prosecutions for the same offense. People v. Ferguson, 67 N.Y.2d 383, 387, 494 N.E.2d 77, 80, 502 N.Y.S.2d 972, 975 (1986). This protection applies to respondents in juvenile delinquency cases. See Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). The Double Jeopardy Clause limits the instances in which a mistrial can be declared without a criminal defendant's consent because the defendant possesses a “valued right to have his trial completed by a particular tribunal.” Hall v. Potoker, 49 N.Y.2d 501, 505, 427 N.Y.S.2d 211, 214, 403 N.E.2d 1210, 1212 (1980) (internal quotation marks omitted).

Thus, when a mistrial is declared without the consent of the accused, the prohibition against double jeopardy precludes retrial for the same offense unless there is a “ ‘manifest necessity’ ” for the mistrial or “ ‘the ends of public justice would otherwise be defeated.’ ” Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 199, 464 N.Y.S.2d 418, 421, 451 N.E.2d 176, 179 (1983), quoting United States v. Perez, 9 Wheat. (22 U.S.) 579, 580, 6 L.Ed. 165 (1824). Indeed, New York Criminal Procedure Law § 280.10(3) allows a court to declare a mistrial only when it is “physically impossible to proceed with the trial in conformity with law.” Such instances include when the judge or other essential court personnel are unavailable due to death or serious illness. People v. Goldfarb, 152 App. Div. 870, 874, 138 N.Y.S. 62, 65 (1st Dept.1912), aff'd, 213 N.Y. 664, 107 N.E. 1083 (1914); see e.g. People v. Mason, 233 A.D.2d 271, 650 N.Y.S.2d 131 (1st Dept. 1996), lv. denied, 89 N.Y.2d 944, 655 N.Y.S.2d 895, 678 N.E.2d 508 (1997) (a mistrial was correctly declared when a juror was disqualified due to illness and no alternate juror was available).

Although great deference is accorded a trial court's declaration of a mistrial, a trial court abuses its discretion when the declaration of a mistrial is based solely upon the convenience of the court. People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 375, 394 N.E.2d 1134, 1138 (1979). Furthermore, the declaration of a mistrial based upon the mere reassignment of a judge for administrative purposes, without more, is an abuse of discretion. See e.g. Matter of Kim v. Criminal Ct. of City of N.Y., 77 Misc.2d 740, 354 N.Y.S.2d 833 (Sup. Ct., New York County 1974), aff'd, 47 A.D.2d 715, 366 N.Y.S.2d 608 (1st Dept 1975) (trial judge abused his discretion in declaring a mistrial on the ground that the...