People v Martinez

[*1] People v Martinez 2012 NY Slip Op 52135(U) Decided on November 16, 2012 Supreme Court, Bronx County Massaro, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 16, 2012
Supreme Court, Bronx County

The People of the State of New York,

against

Edward Martinez, Defendant.



4476-2010



For People of the State of New York

Robert T. Johnson, Esq.

District Attorney, Bronx County

by: Cheryl A. Thill, Esq.

Assistant District Attorney

For Defendant

Monica Dula, Esq.

Law Office of Steven Banks

60 East 161st Street Bronx, NY 10451

Dominic R. Massaro, J.

Pursuant to CPLR §2221, Defendant Edward Martinez renews his motion to dismiss one remaining count [FN1]

in the pending accusatory instrument, arguing that the Fifth Amendment's double jeopardy clause and the corresponding provisions of Article I, §6 of the New York State Constitution prohibit continued prosecution.[FN2]

Defendant argues that new facts and evidence, not previously considered,[FN3] would change the Court's July 17, 2012, determination that denied, with leave to renew, Defendant's motion to dismiss the accusatory instrument. Further, Defendant says he had reasonable justification for failure to present the evidence previously and [*2]is entitled to renewal now because he has produced the record of a certain bench conference (CPLR §2221[e]). Defendant also renews his request to bar the District Attorney from prosecuting the remaining count.

ProsecutionBeginning on February 1, 2012, the District Attorney prosecuted Defendant upon an accusatory instrument in which charges [FN4] were reduced to (1) Attempted Robbery in the First Degree (Penal Law §110.00 and §160.15), (2) Attempted Robbery in the Second Degree (Penal Law §110.00 and §160.10), and (3) Criminal

Possession of a Weapon in the Second Degree (Penal Law §165.03).[FN5]

After submission to the jury, the panel found itself deadlocked within a day because it was unable to reach a verdict upon the last count, that is, Criminal Possession of a Weapon in the Second Degree (Penal Law §165.03) (Exhibit B, page 3, and Exhibit C). Because of the impasse, inter alia., the Court accepted a partial verdict, which Defendant agreed to accept despite the prosecutor's objections. Consequently, the Court received the jury's partial verdict as verified by polling the jury. The jury found Defendant not guilty of Attempted Robbery in the First Degree and Attempted Robbery in the Second Degree while there was no verdict concerning Criminal Possession of a Weapon in the Second Degree (Exhibit C).

After the partial verdict, the Court dismissed the jury panel. The jury's dismissal occurred with both the prosecutor and defense counsel present. Neither counsel objected (Exhibit A). The prosecutor informed the Court the following week of her office's intention to retry Defendant for Criminal Possession of a Weapon in the Second Degree. The District Attorney's legal ability to prosecute the remaining count is the issue to be decided in this motion.

Defendant's Position

Simply stated, Defendant says the remaining count must be dismissed pursuant to CPL §210.20(1)(d) because continuing prosecution violates double jeopardy. According to Defendant, the Court discharged the jury without formally declaring a mistrial and without Defedant's consent. No factual basis justifies such a discharge and counsel had neither an expectation that a mistrial was a possibility nor a meaningful opportunity to object. This is especially egregious because no impediment existed to the jury's continuing deliberations.

Defendant further rejects the idea that two jurors could no longer deliberate or the likelihood of nonappearance the next day because of medical and child care conflicts. In this regard, Defendant says he would have consented to appropriate adjournments to allow a pregnant juror time for medical treatment and to allow a second juror time to solve child care problems without ending deliberations. Further, Defendant says he wanted the jury to otherwise continue deliberations under an Allen charge.

Because the Court did not ask how Defendant wanted to proceed, Defendant says his silence cannot be interpreted as implied consent to a mistrial (see generally, Matter of Marte v. Berkman, 16 NY3d 874 [2011]). Affirmative consent cannot be inferred from a failure to specifically object when Defendant lacked a meaningful opportunity to object (see generally, United States v. Grasso, 552 F2d 46 [*3][2nd Cir. 1977]).[FN6] Further, Defendant sees no "manifest necessity" requiring finding a mistrial especially because the jury deliberated not more than a day before sending the first of three deadlock notes.

District Attorney's Position

Concerning renewal, the prosecutor objects to the Court's consideration of the motion and stresses that Defendant presented no justification for renewal by merely attaching documents from the case file which the Court possessed at the time of the initial decision. The prosecutor says the Court initially gave Defendant reasonable opportunity to respond to the jury's dismissal, but Defendant failed to act,thereby impliedly consenting to the mistrial. In this case, there is no dispute that the Court impliedly found a mistrial when it dismissed the jury and discussed "manifest necessity" caused by (1) medical issues presented by a pregnant juror and (2) unavailability of a second juror because of child care problems (Tr. p. 12) (see generally, People v. O'Rama, 78 NY2d 270 [1991]).

According to the prosecutor, the Court's intention to declare a mistrial was obvious when the jurors were polled and the panel dismissed. Yet, Defendant remained silent and failed to make a record of objecting to a mistrial (see generally, People v. Ferguson, 67 NY2d 383 [1979]). Under these facts, the only conclusion is that Defendant impliedly consented to the mistrial (see, Matter of Marte v. Berkman, supra.). Stated another way, a mistrial objection must be made before the jury is disbanded so any error can be corrected and Defendant's failure here to object waives such objection (see generally, People v. Aponte, 194 AD2d 315 [1st Dept. 1993]).

Finally, the prosecutor notes the Court found "manifest necessity" by exploring medical and child care problems with counsel, thus permitting a retrial upon the remaining count and preventing double jeopardy from attaching (see generally, People v. Michael, 48 NY2d 1 [1979]). Clearly, the court has discretion to determine that a mistrial exists and the trial court's judgment is entitled to great deference (see, People v. Baptiste, 72 NY2d 356 [1988]).

Defendant's Reply

In reply, Defendant denies he consented, impliedly or otherwise, to the Court's mistrial determination and jury dismissal, but admits consenting to a partial verdict. In this regard, Defendant says the Court never told the parties that a mistrial would be considered and never sought Defendant's views. Further, Defendant strongly disputes that a factual basis exists for a mistrial finding. Concerning a reconstruction hearing, Defendant says no hearing is needed because the bench transaction was placed fully upon the record. Consequently, Defendant feels, the only remedy is the indictment's dismissal.

Legal Discussion

The basic question presented here is whether, under these circumstances, the remaining count of the accusatory instrument must be dismissed as violative of the Fifth Amendment's double jeopardy clause and/or Article I, §6 of the New York State Constitution, thereby prohibiting the District Attorney from continuing prosecution of this case.[FN7]

In deciding the question, the Court turns to CPL § 310.60 in which the Legislature provides rules concerning the double jeopardy effect when a jury is discharged before reaching a verdict. That section provides, in pertinent part, that a deliberating jury may be discharged by the court without having rendered a verdict only when: [*4] (a) The jury has deliberated for an extensive period of time [FN8] without agreeing upon a verdict with respect to any of the charges submitted and the court is satisfied that any such agreement is unlikely within a reasonable time; or (b) The court, the defendant and the people all consent to such discharge; or ( c ) A mistrial is declared pursuant to section 280.10.

When a jury is so discharged, under this statute, a defendant may be retried upon the accusatory instrument (CPL 310.60[2). Upon such retrial, the indictment is deemed to contain all counts which it contained, except those which were dismissed or already decided (CPL 310.60[2]).

Here, the Court finds that the jury was properly discharged in light of both Defendant and prosecutor consenting, impliedly or otherwise, to discharge. The Court was also justified in determining a mistrial because unresolved medical and child care problems were brought to the Court's attention by a pregnant juror and another panel member. That information was shared immediately with counsel because it could have created an issue involving the verdict's integrity (Exhibit A, Tr. p. 12). A juror's possible unavailability because of health issues or any other reason can cause a jury to stop deliberations for more than a 24-hour period which can undermine the validity of a verdict (see, CPL 301.10 [2]) (see generally, People v. Taylor, 32 Misc 3d 546 [Sup. Ct. Kings 2011]).

While there was no objection made in this case, a trial court is empowered to discharge a jury over a party's objection whenever "taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated" (see generally, United States v. Perez, 22 US [9 Wheat.] 579 [1824]) (cited at 53 Fordham L. Rev 894). The fact that the jury deliberated for a day does not bar a determination of mistrial (see, People v. Campbell, 203 AD2d 127 [1st Dept. 1994]). There is no minimum time a jury must deliberate before mistrial is considered (see generally, People v. Baptiste, 72 NY2d 356 [1988]). The Court also possessed a second ground under manifest necessity (unresolved medical and child care issues) that justifies a declaration of mistrial without invoking the double jeopardy clause.

Since the Court took all possible steps to maintain the integrity of the trial, delay is no factor and Defendant showed no prejudice caused by the Court in finding a mistrial and dismissing the jury. Therefore, the Court finds the Double Jeopardy Clause does not, in this case, bar a second trial because the first trial ended in a mistrial (see generally, Blueford v. Arkansas,— US —, 132 S. Ct. 2044 [2012]) (see also, People v. Gause, 19 NY3d 390[Ct. of Appeals]).

Thus, a trial can be discontinued without invoking double jeopardy or barring a subsequent trial for the same offense when particular circumstances manifest a necessity to declare a mistrial (see, CPL §§ 280.10; 310.60 and 310.70). Here, not only did the jury repeatedly reveal its deadlock concerning the remaining charge, but the Court was justified in determining a mistrial because problems were brought to its attention by a pregnant juror together with a second juror's child care issues. Admonition notwithstanding, each of the jurors affirmatively stated likely unavailability for further deliberation on the following day. The information was shared with counsel, thereby avoiding adversely affecting the integrity of the verdict (Exhibit A, Tr. 12). There is no dispute that a juror's possible unavailability for more than a 24-hour period by itself undermines a jury's deliberations. Notwithstanding, since the Court [*5]took all possible steps needed to safeguard the trial's integrity, delay is no fault of the Court or the parties. Further, Defendant lacks evidence of prejudice arising from the mistrial determination, but instead seeks to leverage the situation to manipulate a tactical advantage from the "manifest necessity" poised by the jurors' medical and child care issues (see generally, People v. Taylor, supra.).

Based upon the above, Defendant's motion to dismiss the accusatory instrument is denied.

Wherefore, upon this record,[FN9] and based upon the foregoing, it is

ORDERED that Defendant Edward Martinez's motion to renew the instant motion, pursuant to

CPLR §2221(e), is GRANTED; and it is

ORDERED that the branch of Defendant Edward Martinez's renewed motion to dismiss the accusatory instrument pending against him is DENIED, and it is further

ORDERED that the branch of Defendant Edward Martinez's renewed motion, seeking to bar the prosecutor from going forward upon the last count, is DENIED.

The foregoing constitutes the Decision and Order of this Court.

Dated: Bronx, New York

November 16, 2012

DOMINIC R. MASSARO, JSC Footnotes

Footnote 1: The remaining count is Criminal

Possession of a Weapon in the Second Degree (Penal Law §165.03).

Footnote 2: Defendant also relies upon CPL§ 40.20(1) (previous prosecution bar to further prosecution); CPL §40.30(1), CPL §40.30 (3) (what constitutes previous prosecution); CPL § 210.20(e) (prosecution barred by previous prosecution); and § 310.60 ( jury discharge before verdict's rendition).

Footnote 3: Defendant justifies renewal upon his submission of transcripts and exhibits covering a February 15, 2012, bench conference conducted following three jury notes submitted to the Court on that day.

Footnote 4: Defendant neglected to submit a copy of the accusatory instrument with his motion.

Footnote 5: The reduction of charges occurred during the trial, when the People dismissed Counts 8, 11, 13, and 14, and the Court dismissed, upon Defendant's motion, counts involving Burglary in the First Degree (Penal Law §140.30) and Burglary in the Second Degree (Penal Law §140.25), leaving only the three charges listed above

Footnote 6: Defendant distinguishes Blueford v. Arkansas because the Blueford jury reported a deadlock upon manslaughter, but had not voted upon negligent homicide (Blueford v. Arkansas, 132 S.Ct 2044 [2012]).

Footnote 7: O'Keefe, Note: Acceptance of Partial Verdicts as a Safeguard Against Double Jeopardy, 53 Fordham L. Rev. 889 (1985); Gold, The Second Circuit Review — 1981-1982 Term: Criminal Procedure: Double Jeopardy and Mistrial: the Second Circuit Develops a New Test for Manifest Necessity, 49 Brooklyn L. Rev. 1041 [1983]).

Footnote 8: The determination as to the length of time jurors will be required to deliberate necessarily is factual and rests in the broad discretion of the trial court (see, Plummer v. Rothwax, 63 NY2d 243 [ 1984] [mistrial after 4 ½ hours deliberations]).

Footnote 9: In deciding the instant motion, the Court read (1) Defendant's Notice of Motion to Renew; Affirmation of Monica D. Dula, Esq., with Exhibits A to D; (2) People's Response to Notice of Motion to Renew; and (3) Reply Affirmation of Monica D. Dula, Esq.