People v. Lawton

• Decision Date: 16 November 1987
• Citation: 521 N.Y.S.2d 76,134 A.D.2d 454
• Parties: The PEOPLE, etc., Respondent, v. Ronnie LAWTON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 76

521 N.Y.S.2d 76

134 A.D.2d 454

The PEOPLE, etc., Respondent, v. Ronnie LAWTON, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 16, 1987.

Frederick S. Schurr, Brooklyn, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Roseann B. MacKechnie and Miriam R. Best, of counsel), for respondent.

Before NIEHOFF, J.P., and WEINSTEIN, EIBER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered April 16, 1985, convicting him of murder in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict and imposing sentence. The appeal brings up for review the denial (Meyerson, J.), after a hearing, of the defendant's motion to dismiss the indictment on the ground of double jeopardy (see, People v. Lawton, 127 Misc.2d 800, 487 N.Y.S.2d 273).

ORDERED that the judgment is affirmed.

Just prior to the start of jury selection, the Assistant District Attorney informed the court that he was having difficulty securing the presence of two eyewitnesses. The court agreed not to swear the jury "as a jury" once they are selected, in case it became necessary to declare a mistrial. A jury was then picked with the court swearing in each group as they were selected. When it became evident that the prosecution would not be able to locate the eyewitnesses in the immediate future, the court declared a mistrial and dismissed the jury. The defendant thereafter made a motion to dismiss the indictment on the ground that jeopardy had attached once the original jury had been selected and that placing him on trial a second time would violate his constitutional rights (U.S. Const., 5th Amdt.; N.Y. Const., art. 1 § 6). In the course of its decision, the trial court held that although all 12 members of the original jury had been sworn at the time they were dismissed, jeopardy had not yet attached pursuant to CPL 40.30(1)(b) since the jury, which had not been sworn en masse, was not "impaneled and sworn" (CPL 40.30[1][b] ).

While we disagree with the trial court in its holding that the first jury had not been impaneled and sworn at the time of their dismissal, we nevertheless concur with the denial of the defendant's motion to dismiss the indictment. It is well settled that jeopardy attaches once 12 jurors have been sworn, regardless of whether the swearing was done individually or en masse (see, Matter of Brackley v. Donnelly, 53 A.D.2d 849, 385 N.Y.S.2d 587; People v. Scott, 40 A.D.2d 933, 337 N.Y.S.2d 640). However, the record clearly supports the trial court's finding that the defendant had consented to the dismissal of the first jury. Although the defendant contends that he never expressly consented to the mistrial, a thorough reading of the record calls into question this assertion. In any case, the record supports a finding that the defendant impliedly consented to the jury's dismissal, which is sufficient for him to have waived any double jeopardy claims (see, People v. Ferguson, 67 N.Y.2d 383, 388, 502 N.Y.S.2d 972, 494 N.E.2d 77).

The defendant recites a litany of alleged deficiencies in the representation by his trial counsel ranging from counsel's failure to request a Dunaway hearing (Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824) to his failure to aggressively cross-examine witnesses. The failure of counsel to request a particular hearing is not necessarily indicative of ineffective representation (see, People v. McCrimmon, 131 A.D.2d 598, 516 N.Y.S.2d 304 [2d Dept.1987]; People v. Morris, 100 A.D.2d 630, 473 N.Y.S.2d 595, affd. 64 N.Y.2d 803, 486 N.Y.S.2d 920, 476 N.E.2d 319), especially where, as here, the record reflects that probable cause to arrest the defendant did exist (see, People v. Boero, 117 A.D.2d 814, 499 N.Y.S.2d 133). The remainder of the defendant's claims concern what were apparently decisions by counsel concerning trial strategy which our courts have refused to second guess on appeal (see, People v. Satterfield, 66 N.Y.2d 796, 799-800, 497 N.Y.S.2d 903, 488 N.E.2d 834; People v. Rodriguez, 132 A.D.2d 682, 518 N.Y.S.2d 52 [2d Dept., 1987]; People v. Miekeljohn, 131 A.D.2d 512, 516 N.Y.S.2d 118 [2d Dept., 1987] ). The record reveals that the performance of counsel did not deprive the defendant of meaningful representation (see, People v. Rose, 57 N.Y.2d 837, 455 N.Y.S.2d 760, 442 N.E.2d 57, rearg. denied 58 N.Y.2d 779, 459 N.Y.S.2d 1030, 445 N.E.2d 219; People v. Baldi, 54 N.Y.2d 137, 147, 444...