In the Matter of Eddy Marte v. Berkman

• Decision Date: 05 May 2011
• Citation: 2011 N.Y. Slip Op. 03675,949 N.E.2d 479,16 N.Y.3d 874,925 N.Y.S.2d 388
• Parties: In the Matter of Eddy MARTE et al., Appellants,v.Carol BERKMAN, Justice of the Supreme Court, State of New York, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

16 N.Y.3d 874

949 N.E.2d 479

925 N.Y.S.2d 388

2011 N.Y. Slip Op. 03675

In the Matter of Eddy MARTE et al., Appellants,

v.Carol BERKMAN, Justice of the Supreme Court, State of New York, et al., Respondents.

Court of Appeals of New York.

May 5, 2011.

David Segal, New York City, for Eddy Marte, appellant.Robert Blossner, New York City, for Luis Marte, appellant.Eric T. Schneiderman, Attorney General, New York City (Michael J, Siudzinski of counsel), for Carol Berkman, respondent.Cyrus R. Vance, Jr., District Attorney, New York City (Martin J. Foncello and Alice Wiseman of counsel), for New York County District Attorney, respondent.

OPINION OF THE COURTMEMORANDUM.

The judgment of the Appellate Division should be affirmed, without costs, and the certified question not answered upon the ground that it is unnecessary.

“While express consent to a mistrial is preferable, defendant's consent may in some cases be implied from the circumstances leading up to the dismissal of the jury” and the question of whether the defense consented to a mistrial involves a factual determination by the lower courts that may not be disturbed by this Court if there is any support for that finding in the record ( People v. Ferguson, 67 N.Y.2d 383, 388–389, 502 N.Y.S.2d 972, 494 N.E.2d 77 [1986] ). In this case, there is record support for the Appellate Division conclusion that defendants impliedly consented to the mistrial. The jury submitted a note stating that a verdict had been reached on two counts and that it was at an impasse on others. At the O'Rama conference conducted to determine how the court should respond to this note, the trial judge indicated that he intended to take a partial verdict and declare a mistrial on the undecided charges. When he then asked defense counsel if they wanted to be heard, counsel for Eddy Marte responded “no” and counsel for the codefendant remained silent. After the court took the partial verdict but before it discharged the jury, the judge again inquired of defense counsel if there was anything they wanted to put on the record. Neither attorney responded. Thus, there was ample basis on the record for the trial court to conclude that defendants agreed that a mistrial on the undecided charges was the appropriate course of action.

Contrary to the conclusion reached by the dissent, nothing that occurred at the conference could have led counsel to reasonably believe that the court was deferring a decision concerning the proper response to the note. When the prosecutor agreed that a mistrial was warranted and the defense voiced no disagreement—despite being asked their views—there was no reason for the court to deviate from its initial inclination.

Defendants' contention that there could not have been implied consent as a matter of law because they objected to the mistrial after the jury was discharged lacks merit. The purpose of an O'Rama conference is for the attorneys to advise the court concerning the appropriate response to a jury note in order to assist the court in averting error. The dissent overlooks this principle. Under its analysis, defense attorneys would have no obligation to meaningfully participate in O'Rama

[949 N.E.2d 481 , 925 N.Y.S.2d 390]

conferences but could simply say nothing when a trial judge articulates a proposed response, leaving the false impression of acquiescence even while anticipating a subsequent objection. If this were permissible, attorneys could—by their silence—lull the court into taking actions that could not later be undone.

Our O'Rama jurisprudence compels rejection of this approach. If defendants believed, as they now assert, that the court should have taken the partial verdict followed by an Allen charge directing the jury to continue deliberations, the time to offer that suggestion was at the O'Rama conference. Similarly, if defense counsel were unprepared to consent or object to a mistrial during the conference because they did not yet know what the verdict would be, this too should have been conveyed to the court at the conference. ^* This would have put the court on notice that the defense did not agree that the tenor and length of deliberations, coupled with the jury's declaration concerning its inability to reach agreement, warranted a mistrial (had such notice been given, the court might have altered course in a number of ways, including revisiting its decision to accept the partial verdict). Certainly, once the verdict was announced and defense counsel nonetheless remained mute when asked their views, the inference that defense counsel concurred with the court's decision to grant a mistrial was even more apparent. Moreover, in a case like this where the court informed defense counsel in advance how it planned to respond to the jury note, it is particularly appropriate for a reviewing court to focus on “the circumstances leading up to the dismissal of the jury” ( Ferguson at 388, 502 N.Y.S.2d 972, 494 N.E.2d 77), not statements defense counsel made after the jury had been discharged.

Because we find no basis to disturb the Appellate Division's factual finding of implied consent, we have no occasion to address the People's alternative argument that there was manifest necessity for the mistrial. In that regard, however, we note that there is a relationship between the deficiencies in the record highlighted by the dissent and defense counsels' response when the court expressed its intent to declare a mistrial. Had either attorney addressed a concern relating to that decision at that time, an inquiry concerning the nature of the jury's impasse and the likelihood of ever reaching a verdict on the undecided counts would undoubtedly have ensued—creating a record that would facilitate appellate review.

CIPARICK, J. (dissenting).

Although a defendant's consent to a mistrial “may in some cases be implied from the circumstances” ( People v. Ferguson, 67 N.Y.2d 383, 388, 494 N.E.2d 77 [1986] ), this is not such a case.

Summarizing the record, the majority states that “the trial judge indicated that he intended to ... declare a mistrial” (majority mem., at 875, 925 N.Y.S.2d at 389, 949 N.E.2d at 480). In fact, the court only announced its “inclination” to declare a mistrial during an O'Rama conference addressing a jury note which stated that the jury had reached a verdict on two of the charges, but was otherwise at an “impasse.” At that point, the court had not

[949 N.E.2d 482 , 925 N.Y.S.2d 391]

inquired whether the jury might still be able to reach a verdict on the remaining counts in a reasonable period of time ( see CPL 310.70[1][a]; 310.60[1][a]; Matter of Rivera v. Firetog, 11 N.Y.3d 501, 506, 872 N.Y.S.2d 401, 900 N.E.2d 952 [2008] ), and there is no consideration of this question on the record. Thus, when the court stated its inclination, defense counsel may have reasonably inferred that the court was deferring any decision pending further interaction with the jury. Further, counsel may have been waiting to view that interaction before deciding whether to consent.

When the jury was brought in, it returned a partial verdict acquitting both defendants of two of the three counts in the indictment, attempt to commit robbery in the first degree and attempt to commit robbery in the second degree. The foreperson confirmed that the jury “had not reached a decision” on the third count in the indictment or the three lesser included counts. After taking the partial verdict and hearing that the jury was otherwise “undecided,” the court asked counsel if they had “anything for the record.” They did not. It was not obvious, however, that the court's next step would be to declare a mistrial without further inquiry. That only became evident when the court proceeded to briefly thank the jurors and discharge them. The court never gave defense counsel an opportunity to respond to its decision to declare a mistrial, and defendants, petitioners here, cannot be said to have implicitly consented.

The majority's reliance on Ferguson, 67 N.Y.2d 383, 502 N.Y.S.2d 972, 494 N.E.2d 77 (1986) is misplaced. In that case, the judge informed the attorneys that a juror was hospitalized, there were no alternates, and she was considering a mistrial—a decision based entirely on the juror's absence, and so plainly not contingent on anything further happening in the courtroom. When proceedings recommenced, the court unequivocally stated that it was going to declare a mistrial, and defense counsel failed to object ( id. at 387, 502 N.Y.S.2d 972, 494 N.E.2d 77). In that context, we held that the defendant's consent could be implied. We have never suggested, however, that a defendant can implicitly consent to the declaration of a mistrial before the court definitively determines its course. Although defense counsel here must have realized at some point while the court was thanking and dismissing the jury that there would be no verdict on the third count, that is not the type of silence in the face of a clear opportunity for consent that may substitute for explicit consent ( cf. Ferguson, 67 N.Y.2d at 388–389, 502 N.Y.S.2d 972, 494 N.E.2d 77). In any event, the court thanked and dismissed the jury in a few short sentences, after which defense counsel promptly approached the bench and requested that the jury be held. In effect, this constituted a timely objection.

In the absence of defendants' consent, we must consider whether the constitutional bar to placing a defendant twice in jeopardy for the same offense prevents petitioners from being retried (see N.Y. Const., art. I, § 6; U.S. Const. 5th Amend.; Matter of Davis v. Brown, 87 N.Y.2d 626, 629–630, 641 N.Y.S.2d 819, 664 N.E.2d 884 [1996] ). A defendant may be reprosecuted only if the trial court properly took “all the circumstances into consideration” and found “manifest necessity” for a declaration of mistrial ( Matter of Rivera, 11 N.Y.3d at 506, 872 N.Y.S.2d 401, 900 N.E.2d 952, quoting United States v. Perez, 22 U.S....