In the Matter of Robert Robar v. Labuda

Decision Date28 April 2011
Citation2011 N.Y. Slip Op. 03319,84 A.D.3d 129,921 N.Y.S.2d 710
PartiesIn the Matter of Robert ROBAR, Petitioner,v.Frank J. LaBUDA, as Judge of the County Court of Sullivan County, Respondent,andJames R. Farrell, as Sullivan County District Attorney, Respondent.
CourtNew York Supreme Court — Appellate Division

84 A.D.3d 129
921 N.Y.S.2d 710
2011 N.Y. Slip Op. 03319

In the Matter of Robert ROBAR, Petitioner,
v.
Frank J. LaBUDA, as Judge of the County Court of Sullivan County, Respondent,andJames R. Farrell, as Sullivan County District Attorney, Respondent.

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

April 28, 2011.


[921 N.Y.S.2d 713]

Ricciani & Jose, L.L.P., Monticello (Jacqueline Ricciani of counsel), for petitioner.James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for James R. Farrell, respondent.Before: PETERS, J.P., SPAIN, ROSE, STEIN and EGAN JR., JJ.SPAIN, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506[b][1] ) to prohibit respondents from trying petitioner in the County Court of Sullivan County on an indictment charging him with the crimes of assault in the second degree and reckless endangerment in the second degree.

[84 A.D.3d 131] On the morning of November 24, 2009, petitioner was reportedly hunting alone on his property in the Town of Lumberland, Sullivan County when he mistakenly shot another hunter who had come onto the land, causing serious physical injuries. As a result, petitioner was charged by Sullivan

[921 N.Y.S.2d 714]

County indictment No. 61–2010 with the crimes of assault in the second degree and reckless endangerment in the second degree. The trial ultimately resulted in a declaration of a mistrial over petitioner's objection, requiring resolution in this related special proceeding of whether a retrial on these charges is barred under principles of double jeopardy. We hold that it is so precluded.

During early rounds of jury selection in County Court, Sullivan County on August 23, 2010, the Assistant District Attorney appearing on behalf of the People objected to petitioner's use of peremptory challenges to eliminate five hunters from the jury panel, claiming it violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986 and its progeny. Petitioner argued that Batson was inapplicable but, at the court's direction, provided reasons for striking these jurors, reasons which were unrelated to the jurors' hunting experiences. County Court allowed petitioner's peremptory challenges and excused the disputed potential jurors, but then indicated that it had reserved its decision on the purported Batson challenge, and thereafter swore in the 10 remaining jurors who had not been challenged. After another round of jury selection, the People renewed their Batson objection based upon the defense's use of a peremptory challenge against a sixth potential juror with a hunting background; the court excused the juror [84 A.D.3d 132] but continued to reserve decision. After the complete jury was selected and sworn, additional Batson arguments were heard, but the court continued to reserve decision. The People presented their case-in-chief and then rested. During petitioner's testimony in his defense, County Court excused the jury for the day and sua sponte announced that it was considering whether to grant a mistrial on an unrelated evidentiary issue. The following morning, August 25, 2010, County Court again heard arguments on the Batson motion and the People agreed that a mistrial was necessary, and the court again reserved decision. However, later that day, the People faxed a letter to the court unequivocally asserting that they were not seeking a mistrial. Petitioner also faxed a letter opposing a mistrial.1

The next day, August 26, 2010, relying on People v. Luciano, 10 N.Y.3d 499, 860 N.Y.S.2d 452, 890 N.E.2d 214 [2008], County Court ruled from the bench that petitioner had violated Batson and its progeny by systematically excluding hunters from the jury, which it ruled are a class of people entitled to equal protection. The court also premised its ruling on hunters' rights to sit on a jury and on the right of criminal defendants to a jury of one's peers. Over petitioner's unequivocal opposition, and without conferring with the People regarding their position or referring to their letter indicating that they were not seeking a mistrial, the court ruled that a mistrial was necessary and ordered an immediate retrial. The court faulted the parties for proceeding to trial without requesting an adjournment or “demand[ing] a decision with respect to the Batson issue.”

County Court subsequently issued a written decision purportedly granting the People's Batson objection to the extent of ruling that a “ Batson-like” violation had

[921 N.Y.S.2d 715]

occurred. Finding no other “cure” for that violation, the court declared a mistrial ( People v. Robar, 29 Misc.3d 693, 907 N.Y.S.2d 627 [2010] ). While apparently recognizing that “licensed hunters are [not] a cognizable and protected class distinct under Batson/ Luciano ” ( id. at 698–699, 907 N.Y.S.2d 627), the court alternately premised its written finding of the necessity for a mistrial on the excluded jurors' civil rights as hunters to serve as jurors ( see N.Y. Const., art. I, §§ 1, 11), as well as on a criminal defendant's right to a jury of his or her peers ( see [84 A.D.3d 133] N.Y. Const., art. I, § 1) and to a jury comprised of a cross section of the community. Under the court's novel rationale, licensed hunters are a class entitled to constitutional civil rights protection because they are protected by and exercising the right to bear arms as conferred by the U.S. Constitution, Second Amendment.

Petitioner commenced this CPLR article 78 proceeding in this Court against respondent County Judge of Sullivan County (hereinafter respondent) and respondent Sullivan County District Attorney seeking, among other things, a writ of prohibition precluding a retrial on the criminal charges on double jeopardy grounds ( see CPLR 506[b][1]; CPL 40.20). This Court granted petitioner's motion for a stay of the retrial pending this special proceeding and, upon our review of the well-established governing law and the record, we find that the petition should be granted.

Relief in the nature of prohibition is available to bar a criminal retrial that would violate double jeopardy ( see Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 198 n. 1, 464 N.Y.S.2d 418, 451 N.E.2d 176 [1983]; Hall v. Potoker, 49 N.Y.2d 501, 505 n. 1, 427 N.Y.S.2d 211, 403 N.E.2d 1210 [1980]; Matter of Pronti v. Allen, 13 A.D.3d 1034, 1036, 787 N.Y.S.2d 470 [2004]; Matter of Lamondie v. Main, 152 A.D.2d 902, 903 n., 544 N.Y.S.2d 248 [1989] ). Moreover, because “double jeopardy implicates the very power of the [s]tate to prosecute a particular defendant for a particular crime,” a defense against prosecution premised upon constitutional double jeopardy principles poses a question of law for our review even if not adequately preserved at trial ( People v. Michael, 48 N.Y.2d 1, 7, 420 N.Y.S.2d 371, 394 N.E.2d 1134 [1979] ).

“The Double Jeopardy Clauses of the State and Federal Constitutions provide that the state may not prosecute a defendant twice for the same offense ( see N.Y. Const., art. I, § 6; U.S. Const. 5th Amend)” ( Matter of Rivera v. Firetog, 11 N.Y.3d 501, 506, 872 N.Y.S.2d 401, 900 N.E.2d 952 [2008], cert. denied ––– U.S. ––––, 129 S.Ct. 2012, 173 L.Ed.2d 1105 [2009] ). Jeopardy attaches “when a jury is impaneled and sworn ( see CPL 40.30[1][b] )” ( id.) and encompasses “the defendant's right to be free from reprosecution if the first trial has not continued to conclusion”

[921 N.Y.S.2d 716]

( People v. Baptiste, 72 N.Y.2d 356, 359, 533 N.Y.S.2d 853, 530 N.E.2d 377 [1988] ). “As a general principle, the People are entitled to only one opportunity to compel a defendant to stand trial” ( Matter of Rivera v. Firetog, 11 N.Y.3d at 506, 872 N.Y.S.2d 401, 900 N.E.2d 952) because a “defendant possesses a ‘valued right’ to have his [or her] trial completed by a particular tribunal on the first presentation of the evidence” ( People v. Baptiste, 72 N.Y.2d at 359–360, 533 N.Y.S.2d 853, 530 N.E.2d 377; see Illinois v. Somerville, 410 U.S. 458, 466, 93 S.Ct. 1066, 35 L.Ed.2d 425 [1973]; People v. Catten, 69 N.Y.2d 547, 557, 516 N.Y.S.2d 186, 508 N.E.2d 920 [1987] ).

Under the seminal United States Supreme Court decision in United States v. Perez, 22 U.S. 579, ––– S.Ct. ––––, 6 L.Ed. 165 [1824], where a court declares [84 A.D.3d 134] a mistrial without the consent or over the objections of a defendant, the constitutional prohibition against double jeopardy will preclude a retrial for the same offenses unless “there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated” ( id. at 580; see Matter of Enright v. Siedlecki, 59 N.Y.2d at 199–200, 464 N.Y.S.2d 418, 451 N.E.2d 176). By contrast, where a mistrial is granted on a defendant's motion, the defendant is deemed to have elected to terminate the proceedings and the “manifest necessity” standard is inapplicable to the double jeopardy analysis, unless under a narrow exception the prosecutor's or court's improper actions giving rise to the defendant's mistrial motion were done “in order to goad the [defendant] into requesting a mistrial” ( United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 [1976] ). In that latter case, the defendant may raise the bar of double jeopardy to a second trial after successfully moving for a mistrial at the first trial ( see Oregon v. Kennedy, 456 U.S. 667, 673, 676, 102 S.Ct. 2083, 72 L.Ed.2d 416 [1982]; United States v. Tateo, 377 U.S. 463, 468 n. 3, 84 S.Ct. 1587, 12 L.Ed.2d 448 [1964]; Matter of Gorghan v. DeAngelis, 7 N.Y.3d 470, 473–474, 824 N.Y.S.2d 202, 857 N.E.2d 523 [2006] ). These governing principles are reflected in CPL 280.10, which requires a declaration of a mistrial on a defendant's motion for errors or conduct that deprives a defendant of a fair trial ( see CPL 280.10[1] ), upon the People's motion, where there has been “gross misconduct by the defendant or some person acting on [the defendant's] behalf” (CPL 280.10[2] ), or upon...

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    ...“Reverse Batson ” challenge upheld where defense counsel challenged Asian-American juror. Reason given was pretextual. Robar v. Labuda , 84 A.D.3d 129, 136, 921 N.Y.S.2d 710, 718 (3d Dept. 2011). Batson has been interpreted to prohibit discrimination only “on the basis of race, gender or an......
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