Smith v. Marrus

33 A.D.3d 708, 826 N.Y.S.2d 263

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 2006
• Status: Published

Opinions

Proceeding pursuant to CPLR article 78 in the nature of prohibition, to prohibit the respondents from proceeding with the retrial of the petitioner, Danny Smith, who is the defendant in a criminal action entitled People v Smith, pending in the Supreme Court, Kings County, under indictment No. 4187/04.

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

The Double Jeopardy Clauses of the state and federal constitutions protect an accused from multiple prosecutions for the same offense (see US Const 5th Amend; NY Const, art I, § 6). In a jury trial, once the jury is empaneled and sworn, jeopardy attaches (see CPL 40.30 [1] [b]; People v Ferguson, 67 NY2d 383 [1986]), and the defendant has a “ ‘valued right to have his trial completed by a particular tribunal’ ” (People v Ferguson, supra at 388, quoting Illinois v Somerville, 410 US 458, 466 [1973]). “Where a mistrial is granted without the consent or over the objection of a defendant, retrial is barred by double jeopardy protections unless there was manifest necessity for the mistrial or the ends of public justice would be defeated” (People v Ferguson, supra at 388 [internal quotations omitted]).

A hopelessly deadlocked jury presents the “classic case for a proper mistrial” (Arizona v Washington, 434 US 497, 509-510 [1978]). “Generally, the declaration of a mistrial due to a deadlocked jury is a matter of discretion for the Trial Judge, who is in the best position to determine whether a mistrial is required under the circumstances of the case, and this decision must be accorded great deference” (Matter of Martin v Hynes, 259 AD2d 547, 548 [1999]; see Matter of Plummer v Rothwax, 63 NY2d 243 [1984]; People v Wincelowicz, 258 AD2d 602 [1999]; People v Sparacino, 150 AD2d 814 [1989]). Here, the trial was brief, the jury had already reached a verdict on one of the two counts submitted to it, the issue that remained to be resolved was a simple one, and the jury had twice reported its inability to reach a verdict on the remaining count. In these circumstances, the jury appeared to be genuinely deadlocked and it would have served no purpose to provide additional instructions or to order it to continue to deliberate. Therefore, the Supreme Court properly determined that manifest necessity existed and providently exercised its discretion in declaring a mistrial. Accordingly, there is no bar to a retrial (see Matter of Plummer v Rothwax, supra; Matter of Martin v Hynes, supra; People v Wincelowicz, supra; People v Sparacino, supra).

In light of the foregoing, we need not reach the People’s remaining contention. Schmidt, J.E, Spolzino and Covello, JJ., concur.