Mikel v. Mark

Appellate Division of the Supreme Court of New York

Mikel v. Mark

249 A.D.2d 993, 672 N.Y.S.2d 161, 1998 N.Y. App. Div. LEXIS 5167

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 29, 1998

StatusPublished

Cited by3 cases

This text of 249 A.D.2d 993 (Mikel v. Mark) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mikel v. Mark, 249 A.D.2d 993, 672 N.Y.S.2d 161, 1998 N.Y. App. Div. LEXIS 5167 (N.Y. Ct. App. 1998).

Pincite

Opinion

—Petition unanimously dismissed without costs. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking a writ of prohibition barring his retrial on the ground of double jeopardy. He contends that Supreme Court erred in dismissing a sworn juror during deliberations and declaring a mistrial and thus that he cannot be retried. We disagree. Pursuant to CPL 270.35 (1), if the court finds that a sworn juror is “grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature,” the court must discharge that juror and replace the juror with an alternate juror, if one is available. If no alternate juror is available, the court must declare a mistrial (see, CPL 270.35 [1]; 280.10 [3]). The record establishes that a sworn juror was properly discharged because she failed to answer questions truthfully during voir dire and ignored the instructions of the court (see, People v Robertson, 217 AD2d 989, 990, lv denied 86 NY2d 846; People v Cannady, 138 AD2d 616, 617, lv denied 71 NY2d 1024). Because no alternate juror was available, the court was required to declare a mistrial. Thus, petitioner’s retrial is not barred by double jeopardy (see, Matter of Bell v Sherman, 174 AD2d 738, 739). (Original Proceeding Pursuant to CPLR art 78.) Present — Pine, J. P., Lawton, Wisner, Balio and Boehm, JJ.

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—Petition unanimously dismissed without costs. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking a writ of prohibition barring his retrial on the ground of double jeopardy. He contends that Supreme Court erred in dismissing a sworn juror during deliberations and declaring a mistrial and thus that he cannot be retried. We disagree. Pursuant to CPL 270.35 (1), if the court finds that a sworn juror is “grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature,” the court must discharge that juror and replace the juror with an alternate juror, if one is available. If no alternate juror is available, the court must declare a mistrial (see, CPL 270.35 [1]; 280.10 [3]). The record establishes that a sworn juror was properly discharged because she failed to answer questions truthfully during voir dire and ignored the instructions of the court (see, People v Robertson, 217 AD2d 989, 990, lv denied 86 NY2d 846; People v Cannady, 138 AD2d 616, 617, lv denied 71 NY2d 1024). Because no alternate juror was available, the court was required to declare a mistrial. Thus, petitioner’s retrial is not barred by double jeopardy (see, Matter of Bell v Sherman, 174 AD2d 738, 739). (Original Proceeding Pursuant to CPLR art 78.) Present — Pine, J. P., Lawton, Wisner, Balio and Boehm, JJ.

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Bluebook (online)

249 A.D.2d 993, 672 N.Y.S.2d 161, 1998 N.Y. App. Div. LEXIS 5167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mikel-v-mark-nyappdiv-1998.

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