Romero v. Justices of Supreme Court, Queens County

Decision Date03 March 1997
Citation654 N.Y.S.2d 803,237 A.D.2d 292
PartiesIn the Matter of Hector ROMERO, Petitioner, v. JUSTICES OF the SUPREME COURT, QUEENS COUNTY, Respondents.
CourtNew York Supreme Court — Appellate Division

Dennis R. Murphy, New York City (Steven B. Wasserman, of counsel), for petitioner.

Dennis C. Vacco, Attorney-General, New York City (Rebecca Ann Durden, of counsel), for respondents.

Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano and Cheryl Hone, of counsel), nonparty respondent pro se.

Before ROSENBLATT, J.P., and COPERTINO, PIZZUTO, KRAUSMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to prohibit the respondents from retrying the petitioner under Queens County Indictment Number N10873/95 on the ground that retrial would violate his right not to be twice placed in jeopardy for the same offense.

ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.

The petitioner was tried before a jury on charges of criminal sale of a controlled substance in the fifth degree and criminal possession of a controlled substance in the fifth degree under Queens County Indictment No. N10873/95. After presentation of the evidence was completed on May 22, 1996, the jury was charged and commenced deliberations on May 23, 1996. Pursuant to CPL 310.10(2), the jury was not sequestered for deliberations.

Jury deliberations were recessed from May 24 to May 27 for a religious observance and the Memorial Day weekend, and were scheduled to resume on Tuesday, May 28. That morning, however, the court clerk received a telephone call from someone calling on behalf of Juror No. 11. The caller stated that Juror No. 11 was unable to appear for deliberations because she was attending her father's funeral in North Carolina. No further information was given to or requested by the clerk. After defense counsel and the prosecutor agreed that they wanted to continue the case, the court adjourned the case until the following day.

On Wednesday, May 29, Juror No. 11 failed to appear for deliberations, and telephone calls to her house went unanswered. When the court raised the possibility of a mistrial, defense counsel requested a mistrial with prejudice. The prosecutor suggested that the court adjourn the case until the following Monday, June 3, pursuant to CPL 310.10(2), in order to see if Juror No. 11 would return for deliberations or if she could be contacted. The court agreed with the prosecutor and adjourned the case until Monday, June 3.

Once again, on Monday June 3, Juror No. 11 did not appear for deliberations and there was no response to telephone calls made to her residence. At this point, the court announced its intention to declare a mistrial pursuant to CPL 280.10(3), and invited comment from counsel. Again, defense counsel requested a mistrial with prejudice, which the People opposed. The court then declared a mistrial and dismissed the jury.

Subsequently, the petitioner commenced the instant CPLR article 78 proceeding in this court, inter alia, to prohibit his retrial under Queens County Indictment No. N10873/95.

Initially, we reject the People's contention that the petitioner impliedly consented to the mistrial. Although a defendant's consent can be implied from the record (People v. Ferguson, 67 N.Y.2d 383, 389, 502 N.Y.S.2d 972, 494 N.E.2d 77), the petitioner's defense counsel specifically consented only to a mistrial with prejudice, as was her right (Matter of Davis v. Brown, 87 N.Y.2d 626, 630-631, 641 N.Y.S.2d 819, 664 N.E.2d 884). Therefore, we must determine whether the petitioner's retrial is barred by double jeopardy under the present circumstances.

Generally, double jeopardy will bar retrial when a mistrial is granted over the defendant's objection or without his or her consent, unless the mistrial is granted "as the product of manifest necessity" (Matter of Davis v. Brown, supra, at 630, 641 N.Y.S.2d 819, 664 N.E.2d 884; see, People v. Ferguson, supra, at 388, 502 N.Y.S.2d 972, 494 N.E.2d 77; Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 199-200, 464 N.Y.S.2d 418, 451 N.E.2d 176; Matter of Rubenfeld v. Appelman, 230 A.D.2d 911, 646 N.Y.S.2d 879; Matter of Cohen [Redd] v. Hanophy, 210 A.D.2d 327, 620 N.Y.S.2d 293). In determining whether such manifest necessity exists, there must be a high degree of necessity before concluding that a mistrial is appropriate, i.e., the grant of a mistrial must be "necessitous, actual and substantial" (Matter of Enright v. Siedlecki, supra, at 200, 464 N.Y.S.2d 418, 451 N.E.2d 176; see also, United States v. Klein, 582 F.2d 186, 190, cert. denied 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38).

"Although the trial court's view as to the necessity for discharging the jury is entitled to deference, its discretion is not unlimited (see, e.g., Matter of Enright v. Siedlecki, 59 N.Y.2d, at 200 [464 N.Y.S.2d 418, 451 N.E.2d...

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  • People v. Johnson
    • United States
    • New York Supreme Court Appellate Division
    • May 18, 2016
    ...72 People v. Michael, 48 N.Y.2d 1, 9–10, 420 N.Y.S.2d 371, 394 N.E.2d 1134 ; Matter of Romero v. Justices of Supreme Ct., Queens County, 237 A.D.2d 292, 293, 654 N.Y.S.2d 803 ).Contrary to the view of our dissenting colleague, we find that any prejudice to the defendant was ameliorated when......
  • Whyte v. Nassau Cnty. Dist. Attorney's Office
    • United States
    • New York Supreme Court Appellate Division
    • May 4, 2016
    ...(People v. Ferguson, 67 N.Y.2d at 388, 502 N.Y.S.2d 972, 494 N.E.2d 77 ; see Matter of Romero v. Justices of Supreme Ct., Queens County, 237 A.D.2d 292, 293, 654 N.Y.S.2d 803 ; Matter of Robles v. Bamberger, 219 A.D.2d at 246, 640 N.Y.S.2d 882 ). A trial court's determination that a mistria......
  • Roey v. Lopresto
    • United States
    • New York Supreme Court Appellate Division
    • November 26, 2014
    ...of Enright v. Siedlecki, 59 N.Y.2d at 202, 464 N.Y.S.2d 418, 451 N.E.2d 176 ; Matter of Romero v. Justices of Supreme Ct., Queens County, 237 A.D.2d 292, 293, 654 N.Y.S.2d 803 ; cf. People v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 394 N.E.2d 1134 ).Accordingly, the petition is denied and t......
  • Roey v. Lopresto
    • United States
    • New York Supreme Court Appellate Division
    • November 26, 2014
    ...of Enright v. Siedlecki, 59 N.Y.2d at 202, 464 N.Y.S.2d 418, 451 N.E.2d 176; Matter of Romero v. Justices of Supreme Ct., Queens County, 237 A.D.2d 292, 293, 654 N.Y.S.2d 803; cf. People v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 394 N.E.2d 1134). Accordingly, the petition is denied and the......
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