Marte v. Berkman

949 N.E.2d 479, 16 N.Y.3d 874

• Court: New York Court of Appeals
• Decided: May 5, 2011
• Status: Published

Opinions

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, without costs, and the certified question not answered upon the ground that it is unnecessary.

“While express consent to a mistrial is preferable, defendant’s consent may in some cases be implied from the circumstances leading up to the dismissal of the jury” and the question of whether the defense consented to a mistrial involves a factual determination by the lower courts that may not be disturbed by this Court if there is any support for that finding in the record (People v Ferguson, 67 NY2d 383, 388-389 [1986]). In this case, there is record support for the Appellate Division conclusion that defendants impliedly consented to the mistrial. The jury submitted a note stating that a verdict had been reached on two counts and that it was at an impasse on others. At the O’Rama conference conducted to determine how the court should respond to this note, the trial judge indicated that he intended to take a partial verdict and declare a mistrial on the undecided charges. When he then asked defense counsel if they wanted to be heard, counsel for Eddy Marte responded “no” and counsel for the codefendant remained silent. After the court took the partial verdict but before it discharged the jury, the judge again inquired of defense counsel if there was anything they wanted to put on the record. Neither attorney responded. Thus, there was ample basis on the record for the trial court to conclude that defendants agreed that a mistrial on the undecided charges was the appropriate course of action.

Contrary to the conclusion reached by the dissent, nothing that occurred at the conference could have led counsel to reasonably believe that the court was deferring a decision concerning the proper response to the note. When the prosecutor agreed that a mistrial was warranted and the defense voiced no disagreement—despite being asked their views—there was no reason for the court to deviate from its initial inclination.

Defendants’ contention that there could not have been implied consent as a matter of law because they objected to the mistrial after the jury was discharged lacks merit. The purpose of an O’Rama conference is for the attorneys to advise the court concerning the appropriate response to a jury note in order to assist the court in averting error. The dissent overlooks this principle. Under its analysis, defense attorneys would have no obligation to meaningfully participate in O’Rama conferences but could simply say nothing when a trial judge articulates a proposed response, leaving the false impression of acquiescence even while anticipating a subsequent objection. If this were permissible, attorneys could—by their silence—lull the court into taking actions that could not later be undone.

Our O ’Rama jurisprudence compels rejection of this approach. If defendants believed, as they now assert, that the court should have taken the partial verdict followed by an Allen charge directing the jury to continue deliberations, the time to offer that suggestion was at the O’Rama conference. Similarly, if defense counsel were unprepared to consent or object to a mistrial during the conference because they did not yet know what the verdict would be, this too should have been conveyed to the court at the conference.

* This would have put the court on notice that the defense did not agree that the tenor and length of deliberations, coupled with the jury’s declaration concerning its inability to reach agreement, warranted a mistrial (had such notice been given, the court might have altered course in a number of ways, including revisiting its decision to accept the partial verdict). Certainly, once the verdict was announced and defense counsel nonetheless remained mute when asked their views, the inference that defense counsel concurred with the court’s decision to grant a mistrial was even more apparent. Moreover, in a case like this where the court informed defense counsel in advance how it planned to respond to the jury note, it is particularly appropriate for a reviewing court to focus on “the circumstances leading up to the dismissal of the jury” (Ferguson at 388), not statements defense counsel made after the jury had been discharged.

Because we find no basis to disturb the Appellate Division’s factual finding of implied consent, we have no occasion to address the People’s alternative argument that there was manifest necessity for the mistrial. In that regard, however, we note that there is a relationship between the deficiencies in the record highlighted by the dissent and defense counsels’ response when the court expressed its intent to declare a mistrial. Had either attorney addressed a concern relating to that decision at that time, an inquiry concerning the nature of the jury’s impasse and the likelihood of ever reaching a verdict on the undecided counts would undoubtedly have ensued—creating a record that would facilitate appellate review.

The dissent speculates that counsel may have intended to listen to the interaction between the court and the jury during the ensuing proceedings before deciding whether to consent to the mistrial. While this is certainly possible—and it would have been a reasonable strategy—it is not supported by anything in the record. Moreover, if this was the case, counsels’ failure to speak up and articulate this intention at the O’Rama conference is both inexplicable and inexcusable.