People v. Niccolich

Decision Date02 October 1995
PartiesThe PEOPLE, etc., Respondent, v. Silvano NICCOLICH, Appellant.
CourtNew York Supreme Court — Appellate Division

Daniel L. Greenberg, New York City (William A. Loeb, of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Steven J. Chananie and James W. Keys, of counsel; Brent P. Reilly, on the brief), for respondent.

Before SULLIVAN, J.P., and ROSENBLATT, THOMPSON and RITTER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (O'Dwyer, J., at trial; Robinson, J., at sentencing), rendered June 2, 1994, convicting him of attempted arson in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

Following a three-week trial and the submission of the case to the jury, the trial court declared a mistrial over the defendant's objection when one of the deliberating jurors became ill. On appeal, the defendant contends that the trial court's declaration of a mistrial was not supported by "manifest necessity" (United States v. Perez, 9 Wheat [22 U.S.] 579, 580, 6 L.Ed. 165), and that the termination of the trial without his consent triggered the double jeopardy bar against reprosecution. We agree.

The record reveals that the jury was charged and commenced deliberations on Wednesday, October 13, 1993. On the following day, Juror No. 12 informed the court that he was ill and had been vomiting all morning. With the consent of both the prosecutor and defense counsel, the court permitted all of the jurors to return to their homes for the night, advising them that Juror No. 12 was ill, and instructing them to return in the morning.

When the court reconvened on the morning of Friday, October 15, 1993, the court clerk stated that he had received a telephone call from Juror No. 12, who indicated that he was still ill and unable to appear, but was "trying to get a doctor's appointment for today". Although the defense counsel urged the court to grant a continuance until Monday in order to obtain further information about Juror No. 12's condition and ascertain when he would be able to resume service, the Trial Judge declared a mistrial over the defendant's objection, concluding that it would be unfair to sequester the remaining jurors over the weekend without any assurance that Juror No. 12 would be able to return to court on Monday. The People subsequently sought to retry the defendant, and he ultimately agreed to plead guilty to attempted arson in the second degree in satisfaction of the indictment.

It is well settled, of course, that a plea of guilty does not foreclose a double jeopardy challenge (see, Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195). When a court declares a mistrial without obtaining the defendant's consent, the double jeopardy provisions of the State and Federal Constitutions prohibit retrial for the same crime unless "there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated" (United States v. Perez, supra, at 580, 6 L.Ed. 165; see also, People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134). While a reviewing court will be hesitant to interfere with the discretion exercised by the Trial Judge, who is "in the best position to determine whether a mistrial is in fact necessary in a particular case" (People v. Michael, supra, at 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134; Matter of Grant v. Kreindler, 162 A.D.2d 531, 556 N.Y.S.2d 727) the trial court's discretion is not without limits (see, Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 200, 464 N.Y.S.2d 418, 451 N.E.2d 176). The court has the duty to consider alternatives to a...

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5 cases
  • Romero v. Justices of Supreme Court, Queens County
    • United States
    • New York Supreme Court Appellate Division
    • March 3, 1997
    ...211, 403 N.E.2d 1210] )" (People v. Ferguson, supra, 67 N.Y.2d at 388, 502 N.Y.S.2d 972, 494 N.E.2d 77; see, People v. Niccolich, 220 A.D.2d 461, 462, 631 N.Y.S.2d 922). We reject the petitioner's contention that a mistrial was not manifestly necessary under the instant circumstances. Faced......
  • People v. Holland
    • United States
    • New York Supreme Court Appellate Division
    • March 23, 1998
    ...505 [427 N.Y.S.2d 211, 403 N.E.2d 1210])" (People v. Ferguson, supra, at 388, 502 N.Y.S.2d 972, 494 N.E.2d 77; see, People v. Niccolich, 220 A.D.2d 461, 462, 631 N.Y.S.2d 922). Here the trial court adequately explored the possibility that the jury was deadlocked, and it is significant that ......
  • People v. Myers
    • United States
    • New York Supreme Court Appellate Division
    • October 2, 1995
  • Maltz on Behalf of Young v. Clabby
    • United States
    • New York Supreme Court Appellate Division
    • July 29, 1996
    ...certainly not manifestly necessary" (People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134; see also, People v. Niccolich, 220 A.D.2d 461, 631 N.Y.S.2d 922 ). Here, the trial court's refusal to continue deliberations on Thursday, April 4 and Friday, April 5, 1996, constituted......
  • Request a trial to view additional results

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