People v. Portalatin
| Decision Date | 22 October 1980 |
| Citation | 105 Misc.2d 725,433 N.Y.S.2d 57 |
| Parties | The PEOPLE of the State of New York v. Angel PORTALATIN, Defendant. |
| Court | New York Supreme Court |
Joseph Miller, New York City, for Motion.
John J. Santucci, Dist. Atty. by Gregory L. Lasak, Asst. Dist. Atty., Opposed.
This is an Article 78 proceeding brought by the defendant against the Judges of the Criminal Court and the District Attorney of Queens County. He seeks an order prohibiting the Criminal Court and District Attorney from re-trying him for petit larceny and criminal possession of stolen property in the third degree.
It appears that the first trial commenced on June 20, 1980 before a jury. No alternates were selected. On July 1, two days before the projected end of the case, the father of one of the jurors suffered a stroke in Boston. The juror Mrs. Green wished to go to Boston to be with him and when asked by the court if she could return to court on July 7, she replied that she didn't know at this point. The court then ascertained that another juror had booked passage overseas on July 7. It further appears that an adjournment to July 7 would carry the jurors into their 4th week of jury service.
The criminal court judge then made a determination that Mrs. Green was not able to carry on, and that because of the serious circumstances within her family, it would be unconscionable to insist that she sit through the remainder of the trial. The court then found "manifest necessity" and declared a mistrial over the defendant's objection.
A motion for a mistrial is covered by Criminal Procedure Law 280.10 which provides that the court must declare a mistrial and order a new trial upon motion of either party or upon its own motion when it is physically impossible to proceed with the trial in conformity with law. The reason justifying the ordering of a mistrial in a criminal case must be a necessitous one, actual and substantial. Matter of Nolan against Court of General Session, 11 N.Y.2d 114, 227 N.Y.S.2d 1, 181 N.E.2d 751. There must be a manifest necessity for the mistrial. U. S. v. Perez, 9 Wheat (22 U.S.), 579, 6 L.Ed. 165. The decision must rest with the trial judge since he is in the best position to determine whether a mistrial is in fact necessary and deference should be accorded to his decision Matter of Napoli v. Supreme Court of New York, 33 N.Y.2d 980, 353 N.Y.S.2d 740, 309 N.E.2d 137 aff. on op. below 40 A.D.2d 159, 338 N.Y.S.2d 721; Hall v. Potoker, 49 N.Y.2d 501. The mistrial in this case was not founded solely upon the convenience of the court but was a manifest necessity due to the inability of a juror to continue. People v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 394 N.E.2d 1134.
This court has been unable to find any reported case in this state concerning illness or death in a juror's family as grounds for a mistrial, but...
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People v. Beeler, S010164
...(Tex.Crim.App.-1993) 867 S.W.2d 427, 430 [approving excusal of juror whose aunt and brother-in-law died]; People v. Portalatin (N.Y.Sup.Ct.1980) 105 Misc.2d 725, 433 N.Y.S.2d 57, 58 [approved mistrial declared when juror's father suffered I do not agree with the suggestion in some of the fo......
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State v. Burr
...278, 283–84 (2010) (mistrial proper when prosecutor suddenly became seriously ill and unable to continue); People v. Portalatin, 105 Misc.2d 725, 433 N.Y.S.2d 57, 57–58 (1980) (mistrial proper when based on illness in juror's family); Ex parte Masonheimer, 220 S.W.3d 494, 512 (Tex.Crim.App.......
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Peters v. Quick, 82 Civ. 6773 (KTD).
...v. Hogan, 579 F.2d 141, 148 n. 7 (2d Cir.1978), cert. denied, 439 U.S. 1090, 99 S.Ct. 872, 59 L.Ed.2d 56 (1979); People v. Portalatin, 105 Misc.2d 725, 433 N.Y.S.2d 57, 58 (Queens County 1980). The trial judge's failure to articulate, on the record, all the factors he considered before decl......