Kleigman v. Justices of the Supreme Court

Decision Date25 July 2001
Citation728 N.Y.S.2d 761
Parties(A.D. 2 Dept. 2001) IN THE MATTER OF DAVID R. KLEIGMAN O/B/O GEORGE ALVAREZ, PETITIONER, v. JUSTICES OF THE SUPREME COURT, KINGS COUNTY, ET AL., RESPONDENTS. 2001-05350 : SECOND JUDICIAL DEPARTMENT Submitted -
CourtNew York Supreme Court — Appellate Division

David R. Kleigman, Kew Gardens, N.Y., petitioner pro se.

Eliot Spitzer, Attorney-General, New York, N.Y. (Katherine E. Timon of counsel), for respondent Justices of the Supreme Court, Kings County.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Lilian Shepherd of counsel), respondent pro se.

Myriam J. Altman, J.P., Sondra Miller, Leo F. McGinity, Howard Miller, Stephen G. Crane, JJ.

Proceeding pursuant to CPLR article 78, in the nature of prohibition, to prohibit the respondents from retrying the petitioner under Kings County Indictment No. 9870/92 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.

The petitioner was tried before a jury on charges of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree under Kings County Indictment No. 9870/92. After presentation of the evidence was completed, and the jury was charged, it commenced deliberations on April 25, 2001. The jury was sequestered for deliberations.

On April 26, 2001, while returning from dinner, Juror No. 2 suffered an apparent seizure and was taken to the Long Island College Hospital emergency room. The next morning, Friday, April 27, 2001, the Supreme Court related to the parties that it had spoken by telephone with the doctor for Juror No. 2, and had been told that the juror was a "very sick man", who has had a heart problem since 1999, and that problems had been discovered with his liver. The doctor did not, as of the time of her phone call to the court, have the results of the various medical tests performed on Juror No. 2. Therefore, the doctor could not make a firm decision about Juror No. 2's condition until the following Monday, which would be the earliest date he could be released. The doctor informed the court that regardless of what the test results revealed, she would recommend from one to two weeks bedrest for Juror No. 2 after his release from the hospital, and that even if he could return to work, she did not think, under these circumstances, that he should become involved in the stressful situation of jury deliberations.

The petitioner then requested an evidentiary hearing on the issue of medical necessity before determining whether a reasonable alternative existed which would permit continued deliberations. The Supreme Court denied this request, and extended to the petitioner, as an alternative to a mistrial, the choice of agreeing to a nonsequestered jury that could stand by until Juror No. 2 was well enough to continue deliberations. The petitioner rejected the offer. The Supreme Court concluded that it would be unreasonable to keep the jury sequestered and declared a mistrial. The petitioner commenced the instant CPLR article 78 proceeding to prohibit his retrial under Kings County Indictment No. 9870/92.

Generally, double...

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