People v. Haggray

• Decision Date: 13 September 2018
• Docket Number: 107965
• Parties: The PEOPLE of the State of New York, Respondent, v. Nyjew HAGGRAY, Appellant.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 1522
83 N.Y.S.3d 374

The PEOPLE of the State of New York, Respondent,
v.
Nyjew HAGGRAY, Appellant.

107965

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

Calendar Date: April 27, 2018
Decided and Entered: September 13, 2018

83 N.Y.S.3d 376

Theodore J. Stein, Woodstock, for appellant.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered October 15, 2015, upon a verdict convicting defendant of the crimes of robbery in the second degree and grand larceny in the third degree.

Defendant was charged in a four-count indictment with two counts of robbery in the first degree, robbery in the second degree and grand larceny in the third degree in connection with an armed robbery in the City of Albany. Following pretrial hearings and a jury trial, County Court declared a mistrial in March 2015, after the jury was unable to reach a verdict. In August 2015, a second jury trial was conducted, whereupon defendant was convicted of robbery in the second degree and grand larceny in the third degree. Defendant was thereafter sentenced, as a second violent felony offender, to an aggregate prison term of 10 years, to be followed by five years of postrelease supervision, and ordered to pay restitution. Defendant now appeals.¹

Initially, we reject defendant's claim that his constitutional right against double jeopardy was violated when he was subjected to a second trial following County Court's declaration of a mistrial. Although "a defendant may not be twice put in jeopardy of criminal prosecution for the same offense" ( Matter of Davis v. Brown, 87 N.Y.2d 626, 629–630, 641 N.Y.S.2d 819, 664 N.E.2d 884 [1996] ; see N.Y. Const, art I, § 6 ; US Const 5th Amend), where, as here, a jury is deadlocked and unable to reach a verdict, declaration of a mistrial is generally appropriate so long as the trial court has consulted with the parties regarding how to proceed and determined whether the People and the defendant consent to such a declaration, "as double jeopardy typically erects no barrier to a retrial

83 N.Y.S.3d 377

where consent is freely given" ( People v. Wilson, 163 A.D.3d 1049, 1050, 80 N.Y.S.3d 539 [2018] [internal quotation marks and citation omitted]; see CPL 310.60[1][b] ; People v. Ferguson, 67 N.Y.2d 383, 387–388, 502 N.Y.S.2d 972, 494 N.E.2d 77 [1986] ).

Here, upon receipt of a note from the jury indicating that it was unable to reach a verdict, County Court consulted with the People and defendant, provided an Allen charge and asked the jury to continue with its deliberations. Following further deliberations, County Court received another note from the jury indicating that it remained deadlocked. A conference was then conducted with the parties in chambers and, following same, County Court obtained—on the record—the express consent of both the People and defendant to discharge the jury, declare a mistrial and place the matter back on the calendar for a second trial. Notably, County Court specifically inquired of defendant whether he understood the mistrial procedure, particularly the fact that the declaration of a mistrial did not resolve the indictment and that he would be "subject to retrial in the future," to which defendant indicated that he understood. Accordingly, given defendant's consent to the mistrial, he waived his claim that his second trial was foreclosed on double jeopardy grounds (see Matter of Davis v. Brown, 87 N.Y.2d at 630, 641 N.Y.S.2d 819, 664 N.E.2d 884 ; People v. Ferguson, 67 N.Y.2d at 387–388, 502 N.Y.S.2d 972, 494 N.E.2d 77 ; People v. Smith, 12 A.D.3d 219, 220, 784 N.Y.S.2d 530 [2004], lv denied 4 N.Y.3d 836, 796 N.Y.S.2d 591, 829 N.E.2d 684 [2005] ; People v. Michallow, 201 A.D.2d 915, 916, 607 N.Y.S.2d 781 [1994], lv denied 83 N.Y.2d 874, 613 N.Y.S.2d 134, 635 N.E.2d 303 [1994] ; cf. People v. Kappen, 142 A.D.3d 1106, 1106–1107, 38 N.Y.S.3d 215 [2016], lv denied 28 N.Y.3d 1185, 52 N.Y.S.3d 712, 75 N.E.3d 104 [2017] ; compare People v. Mergenthaler, 13 A.D.3d 984, 985, 787 N.Y.S.2d 486 [2004] ).²

Defendant also contends that the verdict following his second trial was not supported by legally sufficient evidence and was against the weight of the evidence. When reviewing a legal sufficiency claim, "we view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Wilson, 164 A.D.3d 1012, 1014, 83 N.Y.S.3d 705, 2018 N.Y. Slip Op. 05715, *2, 2018 WL 3762700 [2018] [internal quotation marks and citations omitted]; see People v. Bueno, 18 N.Y.3d 160, 169, 936 N.Y.S.2d 636, 960 N.E.2d 405 [2011] ). In contrast, when assessing the weight of the evidence, where, as here, a different verdict would not have been unreasonable, this Court "must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may

83 N.Y.S.3d 378

be drawn from the testimony" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citation omitted]; see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Cruz, 152 A.D.3d 822, 823, 57 N.Y.S.3d 753 [2017], lv denied 30 N.Y.3d 1018, 70 N.Y.S.3d 451, 93 N.E.3d 1215 [2017] ). With respect to the charge of robbery in the second degree, the People were obligated to prove that defendant forcibly stole property and was "aided by another person actually present" ( Penal Law § 160.10[1] ). A person forcibly steals property when "he [or she] uses or threatens the immediate use of physical force upon another person for the purpose of ... [c]ompelling the owner of such property or another person to deliver up the...