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THE SECOND TRIAL VIOLATED THE DOUBLE JEOPARDY PROHIBITION; THE FIRST TRIAL COULD HAVE CONTINUED WITH ELEVEN JURORS AFTER A JUROR WAS DISQUALIFIED DURING DELIBERATIONS (SECOND DEPT).

The Second Department, after the second trial was finished, determined that the second trial violated the double jeopardy prohibition. In the first trial, a juror talked to an attorney about the evidence and, during deliberations, told the other jurors what the attorney said. That juror was disqualified. The People moved for a mistrial. The defendant opposed and was willing to proceed with eleven jurors. The judge declared a mistrial:

When a mistrial is declared without the consent of or over the objection of a defendant, a retrial is precluded unless ” there was manifest necessity for the mistrial or the ends of public justice would be defeated'” … . …

… [T]he People have not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. While it is undisputed that juror number 11 was grossly unqualified to continue serving, the Supreme Court abused its discretion in declaring a mistrial without considering other alternatives. The defendant specifically indicated his desire to waive trial by a jury of 12 individuals and proceed with the remaining 11 jurors, an option that has been endorsed by the Court of Appeals … . Under the circumstances presented, as urged by defense counsel, it would have been appropriate to poll the remainder of the jurors to ascertain whether they could render an impartial verdict … . Moreover, as the improper information imparted to the jurors did not significantly prejudice the People, the court should have considered whether a specific curative instruction could have clarified what constituted “evidence” and whether such an instruction could have cured the impropriety … . Accordingly, there was an insufficient basis in the record for the declaration of a mistrial, and thus, a retrial was precluded. People v Smith, 2019 NY Slip Op 07622, Second Dept 10-23-19

 

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