Rubenfeld on Behalf of Walters v. Appelman

Citation230 A.D.2d 911,646 N.Y.S.2d 879
PartiesIn the Matter of Paul RUBENFELD on Behalf of Lorenzo WALTERS, Petitioner, v. Pearl APPELMAN, etc., et al., Respondents.
Decision Date26 August 1996
CourtNew York Supreme Court Appellate Division

Rubenfeld & Soshnick, Kew Gardens (Paul Rubenfeld, of counsel), for Petitioner.

Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Robin A. Forshaw, and Erin R. Apfel, of counsel), Respondent pro se.

Before BRACKEN, J.P., and KRAUSMAN, GOLDSTEIN and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to prohibit the respondents from retrying the defendant under Queens County Indictment No. N11743/95 on the ground that retrial would violate his right not to be twice placed in jeopardy for the same offense.

Upon the petition, the papers filed in support of the proceeding, and the papers filed in opposition thereto, it is

ADJUDGED that the petition is granted, on the law, without costs or disbursements, and the People are prohibited from retrying the defendant on Queens County Indictment No. N11743/95.

At the conclusion of defense counsel's summation to the jury during the trial of Lorenzo Walters under Queens County Indictment No. N11743/95, the Supreme Court sua sponte declared a mistrial, over defense counsel's objection, stating that defense counsel had so misstated the evidence during his summation, that the jurors could no longer be impartial.

Under the protection of the Double Jeopardy Clauses of the State and Federal Constitutions, a defendant may not be twice put in jeopardy of criminal prosecution for the same offense (see, N.Y. Const. art. I, § 6; US Const, 5th Amend; Matter of Davis v. Brown, 87 N.Y.2d 626, 641 N.Y.S.2d 819, 664 N.E.2d 884). When a mistrial is granted without the consent and over the objection of the defendant, double jeopardy will, as a general rule, bar retrial (see, Matter of Davis v. Brown, supra; 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 Cohen v. Hanophy, 210 A.D.2d 327, 620 N.Y.S.2d 293). However, the right to have one's case decided by the first empaneled jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial (see, Matter of Davis v. Brown, supra; Matter of Enright v. Siedlecki, supra; cf., CPL 280.10[2], [3]; see also, People v. Ferguson, 67 N.Y.2d 383, 388, 502 N.Y.S.2d 972, 494 N.E.2d 77; Matter of Colcloughley v. Johnson, 115 A.D.2d 58, 61, 499 N.Y.S.2d 686).

"Given that the trial judge is uniquely situated to evaluate whether a mistrial is appropriate, deference is [generally] accorded to [a trial court's] discretionary determination" (Matter of Robles v. Bamberger, 219 A.D.2d 243, 246, 640 N.Y.S.2d 882, citing People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134; see also, People v. Beckum, 156 A.D.2d 571, 549 N.Y.S.2d 423). However, it is also " 'indispensably necessary that it appear that prior to declaring such a mistrial, "the trial Judge has properly explored the appropriate alternatives, and that there is a sufficient basis in the record for a mistrial" ' "(Matter of Robles v. Bamberger,supra, 219 A.D.2d at 246, 640 N.Y.S.2d 882, quoting dissent of Alexander, J., in Matter of Zeigler v. Morgenthau, 99 A.D.2d 989, 991, 472 N.Y.S.2d 1022, revd. on dissent of Alexander, J., 64 N.Y.2d 932, 933, 488 N.Y.S.2d 633, 477 N.E.2d 1087, quoting Hall v. Potoker, 49 N.Y.2d 501, 505, 427 N.Y.S.2d 211, 403 N.E.2d 1210; see also, People v. Beckum, supra, at 572, 549 N.Y.S.2d 423). The People have the burden of demonstrating that the mistrial declaration was manifestly necessary or that it was "physically impossible to proceed with the trial in conformity with law" (see, CPL 280.10[2], [3]; Matter of Colcloughley v. Johnson, supra, at 61, 499 N.Y.S.2d 686; Matter of Dickson v. Morgenthau, 102...

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10 cases
  • Com. v. Kelly
    • United States
    • Pennsylvania Superior Court
    • 13 Marzo 2002
    ..."volatile" style of litigation or, even, removed Attorney Campolongo as prosecuting attorney. Cf., Rubenfeld ex. rel. Walters v. Appelman, 230 A.D.2d 911, 912, 646 N.Y.S.2d 879, 881 (1996) (instead of granting a mistrial sua sponte after the trial court became irritated with defense counsel......
  • Taylor v. Dowling
    • United States
    • New York Supreme Court — Appellate Division
    • 3 Julio 2013
    ...jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial” (Matter of Rubenfeld v. Appelman, 230 A.D.2d 911, 911, 646 N.Y.S.2d 879;see Matter of Davis v. Brown, 87 N.Y.2d at 630, 641 N.Y.S.2d 819, 664 N.E.2d 884;Matter of Enright v. Siedlecki, ......
  • Gentil v. Margulis
    • United States
    • New York Supreme Court — Appellate Division
    • 24 Septiembre 2014
    ...641 N.Y.S.2d 819, 664 N.E.2d 884 ; Matter of Taylor v. Dowling, 108 A.D.3d at 568, 968 N.Y.S.2d 556 ; Matter of Rubenfeld v. Appelman, 230 A.D.2d 911, 911, 646 N.Y.S.2d 879 ). “ ‘Manifest necessity’ means ‘a high degree of necessity’; ‘the 993 N.Y.S.2d 118reasons underlying the grant of a m......
  • Gentil v. Margulis
    • United States
    • New York Supreme Court — Appellate Division
    • 24 Septiembre 2014
    ...630, 641 N.Y.S.2d 819, 664 N.E.2d 884; Matter of Taylor v. Dowling, 108 A.D.3d at 568, 968 N.Y.S.2d 556; Matter of Rubenfeld v. Appelman, 230 A.D.2d 911, 911, 646 N.Y.S.2d 879). “ ‘Manifest necessity’ means ‘a high degree of necessity’; ‘the [993 N.Y.S.2d 118] reasons underlying the grant o......
  • Request a trial to view additional results

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