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AFTER DECLARING A MISTRIAL, THE JUDGE DID NOT DISMISS THE INDICTMENT OR AUTHORIZE A NEW INDICTMENT; THE SUPERSEDING INDICTMENT WAS THEREFORE A NULLITY; BECAUSE THE DEFENDANT WAS CONVICTED OF TWO COUNTS IN THE SUPERSEDING INDICTMENT WHICH WERE IN THE ORIGINAL INDICTMENT (WHICH WAS STILL VALID) THOSE CONVICTIONS WERE ALLOWED TO STAND; THE CONVICTION ON THE COUNT WHICH WAS NOT IN THE ORIGINAL INDICTMENT WAS REVERSED; DOUBLE JEOPARDY DOES NOT ATTACH AFTER A MISTRIAL (THIRD DEPT).

​The Third Department, reversing defendant’s conviction on one of three counts, determined the superseding indictment which came down after a mistrial on the original indictment was a nullity because the trial judge did not dismiss the original indictment or authorize the People to re-present a new indictment. The issue was not preserved and the Third Department considered it in the interest of justice. Because defendant had been convicted of two counts which were in the original indictment, those convictions were allowed to stand because the original indictment was never dismissed. The Third Department noted that double jeopardy principles do not attach to a mistrial. The conviction on the third count, which was not in the original indictment, was reversed:

… [B]ecause the court did not, upon declaring the mistrial on the original indictment, “dismiss the indictment or authorize the People to re-present a new indictment to the [g]rand [j]ury[,] . . . the People were limited to retrying defendant upon the same accusatory instrument” … ; thus, the superseding indictment is a nullity … . However, reversal of the judgment of conviction is not required given that both indictments contained two identical counts … . * * * This conclusion, however, does not extend to count 1 of the superseding indictment, charging defendant with criminal possession of a controlled substance in the third degree … , which was not charged in the original indictment; therefore, we reverse that conviction. To the extent that defendant raises double jeopardy concerns, as the first trial ended in a mistrial, double jeopardy principles do not attach … . People v Gentry, 2023 NY Slip Op 03818, Third Dept 7-13-23

Practice Point: If, after a mistrial, the judge does not dismiss the indictment or authorize a new indictment, the original indictment remains. Double jeopardy does not attach.

Practice Point: If, after a mistrial, a superseding indictment is brought without the trial court’s authorization, the superseding indictment is a nullity and the original indictment remains in effect.

 

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