The Second Department determined there was manifest necessity for a mistrial in this murder case. Defendant’s petition to prohibit a second trial was therefore properly denied:
In general, “double jeopardy will bar a retrial when a mistrial is granted over the defendant’s objection, unless the mistrial is granted as the product of manifest necessity'” … . “Manifest necessity for a mistrial has been found where the court concludes, after conducting a probing and tactful inquiry,’ that a juror is grossly unqualified to continue serving” and there are no alternates available … . Before declaring a mistrial, the court has “the duty to consider alternatives to a mistrial and to obtain enough information so that it is clear that a mistrial is actually necessary” … . A trial court’s determination that a mistrial is necessary is entitled to deference, as that court is in the best position to assess the circumstances … . Likewise, “the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected” will be accorded “the highest degree of respect” … .
Here, when the jury reconvened after the Sirois hearing, one juror (No. 10) had been excused, leaving 12 jurors, and the excusal of two more jurors (Nos. 7 and 9) was imminent, leaving only 10 jurors. Furthermore, although the mistrial was declared on the eighth business day after the presentation of evidence had commenced, only one partial day of evidence presentation had occurred, despite the Supreme Court’s initial estimate that the trial would take approximately two weeks (i.e., 10 business days). Matter of Whyte v Nassau County Dist. Attorney’s Off., 2016 NY Slip Op 03517, 2nd Dept 5-4-16
CRIMINAL LAW (MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)/MISTRIAL (CRIMINAL LAW, MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)/MANIFEST NECESSITY (CRIMINAL LAW, MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)/DOUBLE JEOPARDY (MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)