People v. Alman

• Decision Date: 08 July 2020
• Docket Number: 2018–09719,Ind. No. 560/17
• Citation: 185 A.D.3d 714,126 N.Y.S.3d 730
• Parties: The PEOPLE, etc., Respondent, v. Irvin ALMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 714
126 N.Y.S.3d 730

The PEOPLE, etc., Respondent,
v.
Irvin ALMAN, Appellant.

2018–09719
Ind. No. 560/17

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

Argued—December 17, 2019
July 8, 2020

126 N.Y.S.3d 731

Mark Diamond, New York, NY, for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Andrea M. DiGregorio and Autumn S. Hughes of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Christopher G. Quinn, J.), rendered July 10, 2018, convicting him of obstructing governmental administration in the second degree and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was arrested and charged with obstructing governmental administration in the second degree, resisting arrest, assault in the second degree,

126 N.Y.S.3d 732

and assault in the third degree following an altercation with corrections officers at the Nassau County Correctional Center, where the defendant was visiting his brother. The case proceeded to trial. After summations, defense counsel informed the Supreme Court that the defendant would not consent to any alternate jurors replacing a juror and, consequently, the alternates were discharged. As deliberations proceeded, the jury sent a note to the court in which it asserted that Juror No. 6 had disobeyed the court's admonitions not to do independent research or to speak about the case with anyone not on the jury and requested that Juror No. 6 be removed from the jury. The court explained to the prosecution and defense that it would speak to the jurors one-by-one to ascertain if misconduct had occurred and, if so, whether the jurors could remain unbiased. Neither party objected when afforded the opportunity to do so.

The Supreme Court proceeded to speak with the first seven jurors. Upon questioning Juror No. 6, Juror No. 6 admitted that she had disobeyed the court's instructions by performing independent research regarding legal definitions of topics at issue in the case and by discussing the case with her husband. Juror No. 6 also admitted telling the other jurors what she had learned.

The Supreme Court discharged Juror No. 6 without objection. The court then proceeded to interview Juror No. 7 who informed the court that she would not be able to put aside the information conveyed by Juror No. 6 and could no longer be fair or impartial. After the court inquired of the parties whether they had any applications to make and was advised that they had none, the court stated that it would declare a mistrial "upon necessity" because it had no other options in that Juror No. 6 was discharged and at least one other juror had been tainted, and with the recognition that there were at best only 10 jurors remaining and no alternates available. Without objection from the parties, the court recalled the remaining jury members and discharged them. The parties then agreed to adjourn the case for a new trial, with defense counsel offering a proposed date.

The second trial proceeded and the jury acquitted the defendant of assault in the second degree, assault in the third degree, and attempted assault in the third degree but convicted him of obstructing governmental administration in the second degree and resisting arrest. The defendant appeals.

While the defendant contends that the Supreme Court's declaration of a mistrial was in violation of CPL 280.10, such contention is not preserved for appellate review as the defendant failed to object to the court's declaration of a mistrial on this, or any other, ground (see People v. Adonis , 119 A.D.3d 700, 701, 988 N.Y.S.2d 902 ; People v. Hambrick , 96 A.D.3d 972, 973, 947 N.Y.S.2d 139 ). To the extent that the defendant's claim that his federal and state constitutional protections against double jeopardy were violated as there was no manifest necessity for the mistrial is reviewable, notwithstanding the absence of objection (compare People v. Michael , 48 N.Y.2d 1, 7, 420 N.Y.S.2d 371, 394 N.E.2d 1134, with , 119 A.D.3d at 701, 988 N.Y.S.2d 902, and People v. Hambrick , 96 A.D.3d at 973, 947 N.Y.S.2d 139 ), his claim is without merit.

The defendant implicitly consented to the declaration of a mistrial and waived his double jeopardy claims because he failed to object when the Supreme Court first stated that it planned to declare a mistrial, despite being afforded the opportunity to do so, and then agreed to schedule a second trial (see

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