Whyte v. Nassau Cnty. Dist. Attorney's Office

Decision Date04 May 2016
Docket Number2016-01488.
PartiesIn the Matter of Uriel WHYTE, petitioner, v. NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE, et al., respondents.
CourtNew York Supreme Court — Appellate Division

139 A.D.3d 746
30 N.Y.S.3d 684
2016 N.Y. Slip Op. 03517

In the Matter of Uriel WHYTE, petitioner,
v.
NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE, et al., respondents.

2016-01488.

Supreme Court, Appellate Division, Second Department, New York.

May 4, 2016.


30 N.Y.S.3d 685

Grizopoulos & Portz, P.C., Mineola, N.Y. (Gregory Grizopoulos of counsel), for petitioner.

Madeline Singas, District Attorney, Mineola, N.Y. (Michelle Burke of counsel), for respondents.

RANDALL T. ENG, P.J., L. PRISCILLA HALL, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.

139 A.D.3d 746

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondents from retrying the petitioner in a criminal action entitled People v. Whyte, pending in the Supreme Court, Nassau County, under Indictment No. 1339N–13, on the ground that retrial would subject him to double jeopardy.

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

The petitioner was charged with attempted murder in the second degree, attempted assault in the first degree, assault in the second and third degrees, and criminal possession of a weapon in the third and fourth degrees. At the beginning of the trial, the Supreme Court advised the jurors of its estimate that the trial would take approximately two weeks. On what would have been the second day of evidence, the jury was excused due to inclement weather. On that date, the prosecutor

30 N.Y.S.3d 686

requested a Sirois hearing (see People v. Sirois, 92 A.D.2d 618, 459 N.Y.S.2d 813 ; Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 415, 460 N.Y.S.2d 591 ). The court then conducted a Sirois hearing, which concluded six days later. During that period, the court expressed concern that, due to the delay, jurors would become unavailable and a mistrial would become necessary. The petitioner did not protest.

During the period of delay, Juror No. 10 was excused because she had scheduled work commitments based upon the Supreme Court's original estimate of when the trial would conclude. In addition, Juror No. 9 became unavailable due to a violent assault on her son, for whom she needed to provide care. Juror No. 9 also expressed concern about her ability to remain impartial in light of the attack on her son. Finally, Juror No. 7 had previously informed the court that, due to plans related to her daughter's upcoming wedding, she would become unavailable

139 A.D.3d 747

within two days after the presentation of evidence was schedule to resume.

Without objection from the petitioner, the Supreme Court informed counsel of its intention to declare a mistrial and, upon reassembling the jury, did so. The petitioner thereafter moved pursuant to CPL 40. 20 to bar a retrial. In an order entered October 22, 2015, the court denied the motion. The petitioner then commenced this proceeding pursuant to CPLR article 78, seeking to prohibit the respondents from retrying him.

“Prohibition is an extraordinary remedy” which may be issued “only when a court ... acts or threatens to act without jurisdiction in a matter of ... which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (see Matter of Brown v. Blumenfeld, 89 A.D.3d 94, 101, 930 N.Y.S.2d 610 [internal quotation marks omitted]; see Matter of Soares v. Herrick, 20 N.Y.3d 139, 145, 957 N.Y.S.2d 664, 981 N.E.2d 260 ; Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 435, 654 N.Y.S.2d 705, 677 N.E.2d 276 ; Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297 ; Matter of Brown v. Blumenfeld, 103 A.D.3d 45, 54, 957 N.Y.S.2d 171 ). “The primary function of prohibition is to prevent ‘an arrogation of power in violation of a person's rights, particularly constitutional rights' ” (Matter of Vinluan v. Doyle, 60 A.D.3d 237, 244, 873 N.Y.S.2d 72, quoting Matter of Nicholson v. State Commn. on Jud. Conduct, 50 N.Y.2d 597,...

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3 cases
  • People v. Alman
    • United States
    • New York Supreme Court — Appellate Division
    • July 8, 2020
    ...CPL 270.35[1] ; People v. Tinsley , 58 N.Y.2d 990, 992, 461 N.Y.S.2d 1005, 448 N.E.2d 790 ; Matter of Whyte v. Nassau County Dist. Attorney's Off. , 139 A.D.3d 746, 746–747, 30 N.Y.S.3d 684 ). The defendant's contention that the jury verdicts were repugnant is not preserved for appellate re......
  • 24 Franklin Ave. R.E. Corp. v. Heaship
    • United States
    • New York Supreme Court — Appellate Division
    • May 4, 2016
  • In re Bakst
    • United States
    • New York Supreme Court — Appellate Division
    • May 4, 2016
    ...the Grievance Committee served a copy of this Court's decision and order on motion dated December 10, 2015, upon the respondent, and 30 N.Y.S.3d 684 an affidavit of service was duly filed with this Court. To date, the respondent has failed to serve and file an answer to the verified petitio......
5 books & journal articles
  • Objections & related procedures
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2019 Contents
    • August 2, 2019
    ...statement, where the plaintif waited until the jury was deliberating to make the motion. Whyte v. Nassau Cty. Dist. Attorney’s Oice , 139 A.D.3d 746, 30 N.Y.S.3d 684 (2d Dept. 2016). he trial court correctly determined that there was manifest necessity for a mistrial. Although the mistrial ......
  • Objections & related procedures
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2021 Contents
    • August 2, 2021
    ...statement, where the plaintif waited until the jury was deliberating to make the motion. Whyte v. Nassau Cty. Dist. Attorney’s Oice , 139 A.D.3d 746, 30 N.Y.S.3d 684 (2d Dept. 2016). he trial court correctly determined that there was manifest necessity for a mistrial. Although the mistrial ......
  • Objections & related procedures
    • United States
    • James Publishing Practical Law Books New York Objections
    • May 3, 2022
    ...statement, where the plaintiff waited until the jury was deliberating to make the motion. Whyte v. Nassau Cnty. Dist. Attorney’s Off. , 139 A.D.3d 746, 30 N.Y.S.3d 684 (2d Dept. 2016). The trial court correctly determined that there was manifest necessity for a mistrial. Although the mistri......
  • Objections & related procedures
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2018 Contents
    • August 2, 2018
    ...of risk and contributory negligence was erroneous since those doctrines had not been pled. Whyte v. Nassau Cty. Dist. Attorney’s Oice , 139 A.D.3d 746, 30 N.Y.S.3d 684 (2d Dept. 2016). he trial court correctly determined that there was manifest necessity for a mistrial. Although the mistria......
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