People v Marslow
Annotate this CaseDecided on August 11, 2009
Supreme Court, Westchester County
The People of the State of New York
against
Michael Marslow, Defendant.
08-01217-01
Nicholas W. DiCostanzo
Assistant District Attorney
Westchester County
Office of the District Attorney
Richard J. Daronco Courthouse
111 Martin Luther King Blvd.
White Plains, New York 10601
Allan Focarile, Esq.
Attorney for Defendant
Office of Stephen J. Pittari, Esq.
Legal Aid Society
One North Broadway
White Plains, New York 10601
Robert A. Neary, J.
The defendant is charged with the crimes of Murder in the Second Degree and related charges. A jury trial was commenced in this Court on May 7, 2009. The testimony concluded on May 13, 2009 and summations were heard on May 14, 2009. On May 15, 2009 after the Court gave the jury its legal instructions, the parties were directed to agree on what exhibits were in evidence and to provide those exhibits to the Court Clerk. The parties then agreed that the exhibits could be sent into the jury room by Court personnel if the jury sent a note requesting to examine them. A file folder was handed to a Court Officer by the Assistant District Attorney after both parties had reviewed the exhibits and agreed which items were marked and received into evidence. The file folder, which was handed to the Court staff, contained a smaller folder which actually contained the trial exhibits. Also contained in the larger, outer folder was 26 pages of notes and documents prepared by the District Attorney.
Shortly after commencing their deliberations, the jury requested, by note to the Court, that all exhibits be submitted to them for examination. The Court directed a Court Officer to bring the exhibits into the jury room and leave them with the jury for their examination. At the conclusion of the day's deliberation, Court staff took possession of the exhibits as well as any notes made by jury members while deliberating. These items were secured until the deliberations commenced on May 18, 2009. When deliberations resumed, the exhibits and notes were returned to the jury room.
On May 18, 2009, the jury sent a note inquiring as to the contents of a DVD containing the name Ray Spruill which was inexplicably in the jury possession. During the trial, the DVD was marked for identification and shown to Ray Spruill, outside the presence of the jury, in order to refresh his recollection. The Court called the parties together and inquired as to how this item could have ended up with the deliberating jury. No explanation was provided to the Court. The jury was told to disregard the DVD and not to consider it for any purpose. The jury then [*2]continued its deliberations. When the jury ended its deliberations for the day, Court staff again collected the exhibits and juror notes and secured them with the Court.
On May 19, 2009, the jury resumed deliberations and the Court staff returned the exhibits and notes to the jury room. At approximately 10:30 A.M., the Court received a note from the jury requesting read back of certain trial testimony. Before that note could be answered, another note was received from the jury which stated in relevant part, "[w]e read the account of Michelle Jones not being able to identify the Defendant in a line up a few days after the incident. This may have an impact on some of the Jurors' decision. Do we need to disregard this?" As there was no trial testimony regarding this issue, the Court assembled the jury in the court room and requested that they explain in a note how they gained access to this information.
The jury responded with a note which revealed that 26 pages of prosecutor's trial preparation notes and the like were included in the exhibit file which was sent into the jury room. The documents made reference to identifications procedures, photographic arrays which were not part of the trial testimony and which were intentionally kept out of the trial record. The file marked as Court's Exhibit 12 and was retained by the Court. The Court asked the parties for suggestions on how to proceed.
Defense counsel moved for a mistrial pursuant to CPL 280.10 stating that, "[t]here has occurred, during this trial, in the jury room, a conduct which is prejudicial to the defendant. And that would deprive him of a fair trial based upon the jurors' access to information that was not admitted into evidence, for evidentiary reasons. They were not admitted into evidence, by choice of the defense." The People did not oppose the defendant's application. The Court declared a mistrial and discharged the jury.
On July 9, 2009, the defendant filed a motion to dismiss the indictment and bar any retrial on double jeopardy grounds. The People filed their Affirmation in Opposition on August 5, 2009.
In considering the defendant's motion, this Court must state that it finds no suggestion of prosecutorial misconduct or any deliberate conduct on the part of the prosecution to improperly place these documents before the jury. This unfortunate incident, by all appearances, was completely accidental. There is no reason to suspect that the prosecutor was intentionally attempting to provoke a mistrial or to improperly enhance her case. Indeed, some of the information contained in the documents was detrimental to the People's case such as the misidentification of the defendant by a crucial witness at a line up. It was very clear to the Court that the prosecutors were shocked and distressed when it was discovered that their work product had been given to the deliberating jury along with the trial exhibits.
The issue currently before this Court is whether a retrial is now barred by double jeopardy. Under 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 NY Const., art I, s 6; US Const 5th Amend]. "A cornerstone of the double jeopardy protection is the defendant's right, in the event of prosecutorial or judicial error warranting a mistrial, to choose whether to request a new trial before an untainted jury or to continue to defend the case before the already empaneled jury." [See Matter of David v. Brown, 87 NY2d 626].
It follows that when a defendant successfully moves for a mistrial, generally a retrial is not barred by double jeopardy considerations even if the motion is necessitated by prosecutorial [*3]or judicial error. [See United States v. Jorn, 400 US 70]. Double jeopardy will bar retrial following a defendant's successful motion for a mistrial based on governmental actions, only upon a finding of bad faith conduct intended to provoke a mistrial motion by the defense, so as to harass an accused by successive prosecutions or to afford the prosecution a more favorable opportunity to convict. [See United States v. Dintz, 424 US 600].
Defense counsel asserts that the prosecutor's action left him with the "sad choice" of whether to choose a mistrial or allow the jury to decide the case. However, the key consideration, however difficult, is whether the defendant retained primary control over the course to be followed. [See United States v. Dintz, supra]. In the present case, the defendant chose to seek a mistrial after consideration of the various options. Having made that choice, double jeopardy cannot act as a bar to a retrial. [See Matter of Davis v. Brown, supra].
In addition, double jeopardy does not prohibit a retrial in this matter as the Court finds no showing that the prosecutor deliberately provoked the defendant's motion for a mistrial. [See Oregon v. Kennedy, 456 US 667; Matter of David v. Brown, supra].
Accordingly, the defendant's motion to dismiss the indictment as retrial is barred by double jeopardy is denied in its entirety as neither the State nor Federal Constitutions in any way bars a retrial of this case.
This constitutes the opinion, decision and order of this Court.
Dated: White Plains, New York
August 11, 2009
ROBERT A. NEARY
ACTING SUPREME COURT JUSTICE
Nicholas W. DiCostanzo
Assistant District Attorney
Westchester County
Office of the District Attorney
Richard J. Daronco Courthouse
111 Martin Luther King Blvd.
White Plains, New York 10601
Allan Focarile, Esq.
Attorney for Defendant
Office of Stephen J. Pittari, Esq.
Legal Aid Society
One North Broadway
White Plains, New York 10601
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
