People v. Johnson

• Decision Date: 10 October 1996
• Parties: The PEOPLE of the State of New York, Appellant, v. Michael JOHNSON, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 30

648 N.Y.S.2d 30

232 A.D.2d 220

The PEOPLE of the State of New York, Appellant, v. Michael JOHNSON, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Oct. 10, 1996.

Alan Gadlin, for Appellant.

Howard Simmons, for Defendant-Respondent.

Before MURPHY, P.J., and SULLIVAN, RUBIN, ROSS and NARDELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Bernard Fried, J.), entered October 12, 1993, which granted defendant's motion to dismiss the indictment on double jeopardy grounds, unanimously affirmed.

Where the factual record demonstrates that the defense had neither an expectation that a mistrial was a possibility nor a meaningful opportunity to object, consent to the declaration of a mistrial will not be implied from the defendant's silence (Matter of Guido v. Berkman, 116 A.D.2d 439, 444, 501 N.Y.S.2d 827; see, People v. Ferguson, 67 N.Y.2d 383, 389, 502 N.Y.S.2d 972, 494 N.E.2d 77). Since the trial court failed "to consider alternatives to a mistrial and to obtain enough information so that it [was] clear that a mistrial [was] actually necessary" (People v. Ferguson, supra, at 388, 502 N.Y.S.2d 972, 494 N.E.2d 77), either at the time the juror refused to be sequestered or the next day, the need for a mistrial cannot be said to be due to "manifest necessity" (People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134 quoting, United States v. Perez, 9 Wheat. (22 U.S.) 579, 580, 6 L.Ed. 165).