People v. Wakefield

• Citation: 212 A.D.2d 649,622 N.Y.S.2d 575
• Parties: The PEOPLE, etc., Respondent, v. Daniel WAKEFIELD, Appellant.
• Decision Date: 14 February 1995
• Court: New York Supreme Court Appellate Division

Page 575

622 N.Y.S.2d 575

212 A.D.2d 649

The PEOPLE, etc., Respondent, v. Daniel WAKEFIELD, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 14, 1995.

Martha Krisel, Rockville Centre, for appellant and appellant pro se.

Denis Dillon, Dist. Atty., Mineola (Peter A. Weinstein and Karen Wigle Weiss, of counsel), for respondent.

Before RITTER, J.P., and PIZZUTO, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Thorp, J.), rendered June 16, 1992, convicting him of rape in the first degree (two counts) and sodomy in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

It is well settled that the decision to declare a mistrial rests within the sound discretion of the trial court, which is in the best position to determine if this drastic remedy is truly necessary to protect the defendant's right to a fair trial (see, People v. Cooper, 173 A.D.2d 551, 570 N.Y.S.2d 147). Shortly after the commencement of deliberations, the jury foreman informed the trial court that he had relayed to the rest of the jurors a conversation which he had overheard during lunch, the gist of which was that someone presently on trial at the court had already been convicted of a crime. The trial court questioned each juror separately, and it became apparent that several jurors were under the impression that the defendant was the subject of the rumor. However, after asking whether the rumor would affect the deliberations, the court expressly determined that each juror would be capable of rendering an impartial verdict based solely upon the evidence presented during the trial. Under these circumstances, we find that the defendant was not deprived of a fair trial and that his motion for a mistrial was properly denied (see, People v. Rivera, 26 N.Y.2d 304, 307-308, 310 N.Y.S.2d 287, 258 N.E.2d 699; People v. Sher, 24 N.Y.2d 454, 457, 301 N.Y.S.2d 46, 248 N.E.2d 887, cert. denied 396 U.S. 837, 90 S.Ct. 96, 24 L.Ed.2d 87; People v. Genovese, 10 N.Y.2d 478, 225 N.Y.S.2d 26, 180 N.E.2d 419; People v. Cruz, 160 A.D.2d 893, 554 N.Y.S.2d 325; People v. Sullivan, 167 A.D.2d 564, 562 N.Y.S.2d 234; People v. Lyon, 134 A.D.2d 909, 521 N.Y.S.2d 930; People v. Costello, 104 A.D.2d 947, 480 N.Y.S.2d 565; People v. Goldfeld, 60 A.D.2d 1, 9-10, 400 N.Y.S.2d 229).

The defendant's reliance on People v. Gardella, 55 A.D.2d 607, 389 N.Y.S.2d 118, is misplaced. In that case, the fact that the jury had learned of the defendant's prior conviction for murder did not come to light until after the verdict had been rendered. Therefore, there could be no inquiry to determine whether the ...