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COLLATERAL ESTOPPEL DOCTRINE DID NOT PRECLUDE TESTIMONY ABOUT DEFENDANT’S USE OF A RAZOR BLADE, DESPITE DEFENDANT’S ACQUITTAL ON THE RELATED “DANGEROUS INSTRUMENT” CHARGES IN THE FIRST TRIAL; ADVOCATE-WITNESS RULE REQUIRED THAT DEFENSE COUNSEL’S MOTION TO WITHDRAW OR HER MOTION FOR A MISTRIAL BE GRANTED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the doctrine of collateral estoppel did not prohibit testimony in defendant's second trial that the defendant threatened to cut a victim's throat with a razor blade, despite the fact defendant was acquitted of charges involving the use of a dangerous instrument in the first trial. The court concluded that the witness-victims could not give truthful testimony about the defendant's actions without reference to the razor blade. Therefore, the collateral estoppel doctrine, under the facts of this case, was properly not applied. The court went on to find that defense counsel's request to withdraw or her motion for a mistrial should have been granted. Defense counsel's statements at arraignment were used to impeach the defendant's version of events. After defense counsel reviewed her notes, she informed the court that her statements at arraignment were incorrect and that defendant's testimony at trial matched what he had told her before arraignment. Under these circumstances, the witness-advocate rule required that defense counsel withdraw or that a mistrial be declared. Defendant's conviction was therefore reversed:

… [T]he rigid application of collateral estoppel sometimes gives way to society's interest in ensuring the correctness of criminal prosecutions … . Thus, … if it becomes apparent … that collateral estoppel “cannot practicably be followed if a necessary witness is to give truthful testimony, then [the doctrine] should not be applied” …. . * * *

[Re: the use of defense counsel's erroneous statement to impeach defendant:] The situation went from bad to worse when it became clear that the only way for defense counsel to rehabilitate her client's credibility was to impugn her own, moments before she would argue for her client's innocence in summation. Any way you look at it, defense counsel had no choice but to withdraw. In these unusual circumstances, we hold that the trial court should have granted counsel's request to withdraw or declared a mistrial. People v Ortiz, 2015 NY Slip Op 09233, CtApp 12-16-15

CRIMINAL LAW (COLLATERAL ESTOPPEL DOCTRINE NOT APPLIED)/COLLATERAL ESTOPPEL (UNDER THE FACTS, DOCTRINE INAPPLICABLE IN CRIMINAL CASE)/ATTORNEYS (ADVOCATE-WITNESS RULE REQUIRED THAT DEFENSE COUNSEL'S MOTION TO WITHRAW OR HER MOTION FOR A MISTRIAL BE GRANTED)/ADVOCATE-WITNESS RULE (DEFENSE COUNSEL'S MOTION TO WITHDRAW OR HER MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED)

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INADMISSIBLE TESTIMONIAL HEARSAY, PROSECUTORIAL MISCONDUCT, AND JUDGE’S ACTIONS TO COERCE THE JURY TO REACH A VERDICT DEPRIVED DEFENDANT OF A FAIR TRIAL.

The First Department reversed defendant’s conviction, finding several distinct flaws which deprived defendant of a fair trial. Testimonial hearsay which served to bolster the complainant’s identification of the defendant was improperly admitted. The prosecutor improperly referred to stricken testimony in summation. And the judge effectively coerced the jury into reaching a verdict.  With respect to the coerced verdict, the court wrote:

During jury deliberations, the court should have granted defendant’s mistrial motion, made on the ground that any verdict would be reached under coercive circumstances. The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial. The jury returned two notes, on the second and fourth day of deliberations, announcing that the jury was deadlocked; the second note emphatically listed different types of evidence the jury had considered. The court’s Allen charges in response to both notes were mostly appropriate but presented the prospect of protracted deliberations by improperly stating that the jury had only deliberated for a very short time when it had actually deliberated for days … . The court initially informed the jury that its hours on one day would be extended to 7:00 p.m., before reversing that decision and merely extending the hours to 5:00 p.m., and then it extended the hours to 6:00 p.m. on the next day, a Friday. The court improperly described those changes as a “tremendous accommodation” that was “loathed” by the system … .

The court further indicated that the jury would likely continue deliberating into the next week although jurors had been told during jury selection that the case would be over by the aforementioned Friday, raising concerns for one juror who was going to start a new job the following Monday and another juror who was solely responsible for his child’s care in the first three days of the next week … . After the court informed the latter juror that he would be required to show up the next week despite the juror’s purportedly fruitless efforts to obtain alternative childcare, and then brought the juror back into the courtroom solely to reiterate that point more firmly, the jury apparently returned its verdict within less than nine minutes, at about 3:29 p.m. on the Friday … . The totality of the circumstances supports an inference that the jury was improperly coerced into returning a compromise verdict. People v DeJesus, 2015 NY Slip Op 08959, 1st Dept 12-8-15

CRIMINAL LAW (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)/CRIMINAL LAW (PROSECUTORIAL MISCONDUCT, REFERENCE TO STRICKEN TESTIMONY)/CRIMINAL LAW (COERCED VERDICT, MISTRIAL SHOULD HAVE BEEN GRANTED)/EVIDENCE (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)/HEARSAY (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)PROSECUTORIAL MISCONDUCT (REFERENCE TO STRICKEN TESTIMONY)/COERCED VERDICT (JURY IMPROPERLY PRESSURED TO REACH VERDICT BY JUDGE)/VERDICT (COERCED, JURY IMPROPERLY PRESSURED TO REACH VERDICT BY JUDGE)/MISTRIAL (JUDGE IMPROPERLY COERCED JURY TO REACH A VERDICT, MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED)

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Defendant Implicitly Consented to a Mistrial on Two of Three Counts by Requesting a Partial Verdict

The Court of Appeals, reversing the Appellate Division, determined the defendant, by requesting a partial verdict on the count on which the jury had reached a verdict, had consented to a mistrial on the two remaining counts and, therefore, had waived double jeopardy protection for those two counts:

After one juror was found unable to serve, defendant refused to substitute an alternate juror and requested a partial verdict on the one count on which the jury had indicated it had reached a verdict. The Appellate Division granted the [defendant’s] petition [prohibiting retrial] on the basis that there was no manifest necessity for a mistrial and did not address the issue of consent. Because defendant implicitly consented to a mistrial on two of three counts by requesting a partial verdict and by saying nothing about the court’s plans for retrial … , we need not reach the issue of manifest necessity. Matter of Gentil v Margulis, 2015 NY Slip Op 08455, CtApp 11-19-15

 

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Where Proof Is Directed Exclusively to a Theory Not Charged in the Indictment, the Proof Is Insufficient to Support the Conviction—Such a Variance Need Not Be Preserved by Objection to Be Raised on Appeal/Conduct of Spectators (Mouthing Words When Victim Testified) Did Not Require that the Spectators Be Removed and Did Not Mandate the Declaration of a Mistrial

The Fourth Department determined that variance between the charges described in the indictment and the proof at trial required the dismissal of several counts.  Such a variance does not need to be preserved for appeal by objection.  The court noted that the trial judge’s failure to exclude spectators who were mouthing word’s during the victim’s testimony was not an abuse of discretion:

“Where the charge against a defendant is limited either by a bill of particulars or the indictment itself, the defendant has a fundamental and nonwaivable’ right to be tried only on the crimes charged” … . We have thus held that, where, as here, a defendant contends that he or she has been convicted upon an uncharged theory of the crime, such a contention does not require preservation… . * * *

“Where there is a variance between the proof and the indictment, and where the proof is directed exclusively to a new theory rather than the theory charged in the indictment, the proof is deemed insufficient to support the conviction” … . Counts two and three of the indictment alleged hand-to-vagina contact, but the victim testified that the only part of defendant’s body that came into contact with her vagina was defendant’s penis. Indeed, when asked specifically if any other part of defendant’s body came into contact with her vagina during the incident encompassed by counts two and three, the victim responded, “No.” Count nine of the indictment alleged penis-to-vagina contact, but the victim testified that defendant touched her vagina with his hand during that incident. Again, when asked specifically if any other part of defendant’s body came into contact with her vagina during the incident encompassed by count nine, the victim responded, “No.” We thus conclude that the evidence is legally insufficient to support the conviction with respect to counts two, three and nine and that defendant was denied his fundamental and nonwaivable right to be tried on only those crimes charged in the indictment. We therefore modify the judgment accordingly.  People v Duell, 2015 NY Slip Op 00014, 4th Dept 1-2-15

 

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Mistrial Declaration Over Defendant’s Objection Was “Manifestly Necessary”—Double Jeopardy Prohibition Not Triggered

The Second Department determined the trial judge had no choice but to declare a mistrial when defense counsel could not proceed because of a conflict and new counsel needed a two-month adjournment.  Because the mistrial, granted over defendant’s objection, was “manifestly necessary” the double jeopardy prohibition of a second trial was not triggered:

The double jeopardy clauses of the New York State and United States Constitutions protect an accused from multiple prosecutions for the same offense . “In a jury trial, once the jury is empaneled and sworn, jeopardy attaches, and the defendant has a valued right to have his trial completed by a particular tribunal'” … .

When a mistrial is granted over the defendant’s objection or without the defendant’s consent, a retrial is precluded unless ” there was manifest necessity for the mistrial or the ends of public justice would be defeated'” … . “Manifest necessity” means a ” high degree of necessity'” based on reasons that are ” actual and substantial'” … . Moreover, before declaring a mistrial, a court must explore all appropriate alternatives and must provide a sufficient basis in the record for resorting to this “drastic measure” …  . Matter of Roey v Lopresto, 2014 NY Slip Op 08340, 2nd Dept 11-26-14

 

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Judge Effectively Rescinded the Initial Declaration of a Mistrial and Left the Decision Whether to Declare a Mistrial Up to the Defendant—Because the Defendant Ultimately Agreed to the Mistrial the Double Jeopardy Prohibition Was Not Triggered

The Court of Appeals determined that, although the trial judge initially declared a mistrial without defense counsel’s consent, the judge effectively rescinded the declaration by leaving it up to the defendant to decide whether a mistrial should be declared (defense counsel had objected to the way the judge was handling the trial).  Because the mistrial was ultimately agreed to by the defendant, a second trial was not precluded by the double jeopardy prohibition:

Until the jury is discharged, a court may rescind its previous declaration of mistrial (see People v Dawkins, 82 NY2d 226 [1993]). Defendant argues that in this case the trial judge never formally rescinded his initial mistrial ruling, and so whether or not she indicated her consent after that ruling is irrelevant. Certainly, the judge never expressly said “I rescind my order declaring a mistrial.” But we have never required any particular language to be used to retract a prior order. Here, the record makes clear that the trial judge was leaving the mistrial decision up to defendant. Because she decided to “go with a mistrial,” and thus consented to it, her double jeopardy claim fails. Matter of Gorman v Rice, 2014 NY Slip Op 07923, CtApp 11-18-14

 

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After a Mistrial in a Criminal Matter, a Prohibition Action Seeking to Bar Retrial on Double Jeopardy Grounds Must Be Brought Within Four Months of a Definitive Demonstration of the People’s Intent to Re-Prosecute

The Court of Appeals, over a concurring opinion which disagreed with the majority's grounds, determined that the four-month statute of limitations was not tolled under a “continuing harm” theory and the prohibition action was time-barred.  The trial court had declared a mistrial because, during deliberations, one of the 12 jurors was removed for misconduct.  It was clear shortly after the mistrial that the prosecution was preparing for a second trial. Two years after the mistrial was declared, the defendant brought a prohibition action seeking to prohibit the second trial on Double Jeopardy grounds:

A four-month limitations period applies to CPLR article 78 prohibition proceedings (see CPLR 217 [1]…) and the petition here was filed more than two years after the mistrial was declared. Although a tolling period for continuing harm has been recognized … and would be adopted by our concurring colleague, we reject its application in this situation. Once the People definitively demonstrated their intent to re-prosecute and the court began to calendar the case for eventual trial, Smith was obligated to initiate his Double Jeopardy-based article 78 challenge within the statutorily prescribed time frame. On the facts of this case, that period expired well before prohibition was sought, and therefore, the proceeding was barred by the statute of limitations. Matter of Smith v Brown, 2014 NY Slip OP 07090, CtApp 10-21-14

 

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No Manifest Necessity for Declaring a Mistrial Over Defendant’s Objection–Double Jeopardy Barred Retrial

The Second Department determined there was no “manifest necessity” for the trial court’s declaring a mistrial (over defendant’s objection) and therefore retrial was precluded.  The jury informed the court it had reached a verdict one count but could not reach a verdict on the remaining two counts. The defendant asked the court to accept a partial verdict and the court refused.  Subsequently a juror asked to be excused due to an emergency.  The defendant, at the court’s urging, agreed to excuse the juror and renewed his request for a partial verdict.  The request was again refused and the defendant did not agree to the substitution of an alternate juror.  The court, on its own motion, declared a mistrial. When the court ruled defendant could be retried on the two counts on which the jury could not agree, defendant brought an application for prohibition:

Prohibition is the traditional remedy where a defendant seeks protection against double jeopardy … and the writ lies in this case. * * *

When a mistrial is granted over the defendant’s objection or without the defendant’s consent, double jeopardy will, as a general rule, bar retrial … . However, the right to have one’s case decided by the first empaneled jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial … . ” Manifest necessity’ means a high degree of necessity’; the reasons underlying the grant of a mistrial must be necessitous, actual and substantial'” … . Even if the reasons for declaring a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to declaring a mistrial … .

Here, the trial court failed to explore all appropriate alternatives before declaring, on its own motion, a mistrial … . Accordingly, there was no manifest necessity for the declaration of a mistrial and, thus, retrial on counts two and three of the indictment is precluded.  Matter of Gentil v Margulis, 2014 NY Slip Op 06314, 2nd Dept 9-24-14

 

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Writ of Prohibition Barring Retrial Granted—Mistrial Granted Without Consent of Defendant Was Not Justified

The First Department granted a writ of prohibition barring a retrial of the defendant because the judge ordered a mistrial without the consent of the defendant based upon a comment made by defense counsel in summation. The First Department determined the comment was not sufficiently prejudicial to justify the mistrial:

Jeopardy attaches once a jury has been selected and sworn … . When a mistrial is declared without the consent or over the objection of a criminal defendant, the prohibition against double jeopardy contained in the Fifth Amendment of the United States Constitution and in section 6 of article I of the New York State Constitution bars retrial for the same offense or offenses unless there is a manifest necessity for the mistrial or the ends of public justice would otherwise be defeated … . Here, as the People concede, counsel’s summation comment was not overly prejudicial and provided no basis for a mistrial on “manifest necessity” or “ends of public justice” grounds. Matter of Smith v Williams, 2013 NY Slip Op 06329, 1st Dept 10-1-13

 

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Judge’s Mistrial Order Precluded Retrial—Double Jeopardy

In precluding a retrial on double jeopardy grounds after the trial judge ordered a mistrial over defendant’s objection (granting the Article 78 prohibition petition), the Second Department explained the relevant criteria:

In a jury trial, once the jury is empaneled and sworn, jeopardy attaches (see CPL 40.30[1][b];..), and the defendant has a “valued right to have his [or her] trial completed by a particular tribunal” ….  ” [W]hen a mistrial is granted over the defendant’s objection or without the defendant’s consent, double jeopardy will, as a general rule, bar retrial'”…. “However, the right to have one’s case decided by the first empaneled jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial”… .”Manifest necessity” means “a high degree of necessity”; “the reasons underlying the grant of a mistrial must be necessitous, actual and substantial” …. ” Even if the reasons for granting a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to granting a mistrial'”…. Mistrials premised on the prejudicial effect of improper evidence or argument are entitled to “great deference” …, since “the Trial Judge, better than any other, . . . can detect the ambience of partiality”…. Nonetheless, the trial judge must “temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his [or her] confrontation with society through the verdict of a tribunal he [or she] might believe to be favorably disposed to his [or her] fate” … . Matter of Taylor v Dowling, 2013 NY Slip Op 05089, 2nd Dept 7-3-13

 

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