In the Matter of Estevan Gentil, Respondent,v.Hon. Ira Margulis,, Respondent, Hon. Richard A. Brown,, Appellant.

Brief

N.Y.October 14, 2015

To be Argued by: GARNETT H. SULLIVAN, ESQ. Time Requested 15 Minutes C!Inurt nf J\pp£a1s In the Matter of ESTEVAN GENTIL, -against- STATE OF NEW YORK APL-2014-00263 Petitioner-Respondent, HONORABLE IRA MARGULIS, et al, Respondent-Appellant. BRIEF FOR PETITIONER-RESPONDENT On the Brief: GARNETT H. SULLIVAN, ESQ. LAW OFFICE OF GARNETT H. SULLIVAN Attorneys for Petitioner-Respondent Estevan Gentil 1080 Grand Avenue, Suite 200 South Hempstead, New York 11550 Phone No. (516) 285-1575 Fax No. 516-285-1608 Brief Completed on: January 23, 2015 Echo Appellate Press, Inc. • 30 West Park Avenue •Long Beach, New York 11561 • (516) 432-3601 21077 TABLE OF CONTENTS Page No. TABLE OF CASES AND AUTHORITIES ............................................. .ii INTRODUCTION ........................................................................... 1 QUESTIONS PRESENTED ............................................................... 2 STATEMENT OF FACTS .................................................................. 3 ARGUMENTS It was an abuse of Discretion for the trial court to declare a mistrial sua sponte, without first inquiring whether the jury had reached a verdict on any count of the indictment, given the indication from the jury of a partial verdict and defendant's request for such an inquiry ................................................... 8 Appellant has failed to meet the heavy burden of demonstrating that the trial court explored all that the trial court explored all appropriate alternatives prior to declaring a mistrial, sua sponte ....................................................... 12 Respondent did not waive his constitutional double jeopardy protections, expressly or impliedly .................................................................. 16 The failure of the trial court to make a partial verdict inquiry bars retrial on the entire indictment .................................................................. 21 CONCLUSION ........................................................................... 23 TABLE OF CASES AND AUTHORITIES Page No. Cases Arizona v. Washington, 434 U.S. 497, (1978) ..................................... . 13 Capellan v. Stone, 49 A.D.3d 121 (2008). .. . .. .. . . . .. . ... . .. ... ..... .. .. . .. .. . . 13 Hall v. Protoker, 49 N.Y.2d 501 (1980).......................... .. . . . . . . . . . .. . . ... 13 Harris v. Young, 607 F.2d 1081 (1979).... .. .. ... ..... ... ... ... .. .. . . . . .. .. ... .... 16 Illinois v. Somerville, 410 U.S. 458. ... ... ... .. . .. . .. ..... .. . .. ... ....... .. .. .. .... 21 Marte v. Vance, 480 Appx. 83 (2nd Cir. 2012).. ..... .... .. .. .. .. .. .... . .. . . . . . . . .. 20 Matter of Davis v. Brown, 87 N.Y.2d 626 (1996).................................. 21 -- Matter of Enright v. Siedlecki, 59 N.Y.2d 195 (1983).. ... .. . . .. .. . . . . . . .. .. ...... 13 Matter of Marte v. Berkman, 16 N.Y.3d 874 (2011) ..................... 17, 18,19, 20 Matter of Morgenthau v. Beal, 236 A.D.2d 194 (1997).......................... 22 Matter of Morris v, Livote, 105 A.D.3d 43 (2013).............................. 12, 13 Matter of Oliver v. Justices, 36 N.Y.2d 53 (1974)..... ... .. .. .. .... .. .. . .. . .. . . 10 Matter of Rivera v. Firetog, 11 N.Y.3d 501 (2008)........................... 9, 11 Matter of Robles v. Bamberger, 219 A.D.2d 243 (1996) ....................... 6, 8, 9 Matter of Smith v. Brown, 105 A.D.3d 965 (2013)..... ... . . .. .. .. . .. . ..... 12, 14 Matter of Taylor v. Downing, 108 A.D.3d 566 (2013)........................ 13 People v. Baptiste, 72 N.Y.2d 356 (1988)................................ ......... 12 People v. Ferguson, 67 N.Y.2d 383 (1986)................................. 15, 16, 18 People v. Gajadhar, 9 N.Y.3d 438 (2007).......................................... 14 ii People v. McFadden, 2012 NY Slip Op 08565 ....................................... 19 People v. Members, 100 A.D.3d 1543 (2012).. .... ... . .. .. . ... . . .. ... . .. .. ... 14, 15 People v. Michael, 48 N.Y.2d 1 (1979) ................................................ 15 People v. Serrano, 182 Misc.2d 498 (1999) .......................................... 22 United States v. Castellanos, 478 F.2d 749 (1973) .................................... 13 United States v. Dinitz, 424 U.S. 600 (1976)......................................... 21 United States v. Rozmilovic, 507 F.3d 130 (2007) .................... 13, 14, 16, 18, 20 United States v. Smith, 621 F.2d 350 (1980) .......................................... 15 Statutes C.P.L .. sec. 310.10 (2)................................................................ 15 iii RESPONDENT'S BRIEF PRELIMINARY STATEMENT Respondent, ESTEY AN GENTIL submits this brief in opposition to Appellant's appeal of the unanimous decision of the Appellate Division, Second Department, granting a Writ of Prohibition barring the retrial of Respondent on an indictment, after a mistrial. The retrial was barred because of a finding of a lack of manifest necessity, for the trial court's declaration of a mistrial on its own motion. Prior to the mistrial, the jury had given strong indications that it had reached a partial verdict. Defense counsel requested that the trial judge inquire of the jury if it had reached a verdict on any count. The People (Appellant) objected and the court refused to make the requested partial verdict inquiry before sua sponte declaring a mistrial. The trial court later conceded that it erred in not taking a partial verdict in view of the indications that a verdict had been reached on at least one count, and defense counsel's request for a partial verdict inquiry. Under constitutional double jeopardy principles, such error is deemed an abuse of discretion which bars retrial of the accused on the indictment. The Appellant Division therefore held that a retrial of the Respondent would constitute a deprivation of the Respondent's constitutional double jeopardy protections. 1 Respondent submits that the decision of the Appellate Division was in accordance with the law and should be affirmed by this court. QUESTIONS PRESENTED 1. Whether the trial court abused its discretion in declaring a mistrial on its own motion, without first inquiring if the jury had reached a partial verdict, given the jury's indication of a partial verdict and defense request for a partial verdict inquiry prior to the court declaring a mistrial declaration? 2. Did the trial court sufficiently explore all the available and appropriate alternatives to a mistrial, before declaring a mistrial on its own? 3. Whether this court can imply a waiver of the accused's constitutional double jeopardy protections, when no such factual finding has been made by the Lower Courts and the record fails to demonstrate any such waiver? 4. Did the Appellate Division correctly find that dismissal of the indictment is warranted where there was no manifest necessity for the mistrial as declared by the trial court? 2 STATEMENT OF FACTS Trial Court Declaration of Mistrial The Respondent was brought to trial on a three count indictment charging him with Criminal Possession of a Weapon under Penal Law sections 265.03 (l)(b), 265.02 (1) and 265.02 (1) and 265.03 (3) respectively. All counts referred to a single weapon at the same time and place. During the second day of jury deliberations, the jury sent a note indicating that "We cannot come to a unanimous decision as a jury as to counts 2 and 3" (Proceedings:575; A-96). The court invited the input of counsels for both parties. Defense counsel commented that the note implicitly indicated that there was a partial verdict with respect to one count, and suggested that a partial verdict be taken and that jury continue deliberations on the other counts after an appropriate charge by the court. (Proceedings: 575-576; A-96-97). The People voiced their opposition to the taking of a partial verdict and requested that the jury resume deliberations after an Allen Charge. (Proceedings: 576; A-97). 3 The court declined to take a partial verdict and directed the jury to continue deliberations after giving them instructions in regard to deliberations and reaching a verdict. (Proceedings: 576-580; A-90-101). The jury resumed deliberations. The following day, after deliberations commenced, a juror indicated that he had received information that his brother was involved in a crane accident in Spain. He indicated that he was awaiting further information from his uncle, but had no idea when he would hear from his uncle. (Proceedings: 586-592; A-17-23). When asked ifhe would be able to concentrate on the deliberations, the juror stated: "Honestly, my head is in a completely different place. I feel very badly." (Proceedings: 591; A-22). After the juror returned to the jury room, the court noted that "based on this juror's statements, I think under the law he--at this point since he says his mind is in a completely different place, and it's understandably on his brother. Until he gets further information, he's not able to continue deliberations." (Proceedings: 593; A-24). After a sidebar conference, the court inquired whether the defendant would consent to the substitution of an alternate juror. The defendant declined to consent. The court stated that it had great discretion on whether to permit discharge of the juror and noted that the juror had previously indicated that he had vacation plans 4 that he planned to keep, "come hell or high water." The court however found that based upon the record the juror could not deliberate any further because of his concern for his brother's welfare. (Proceedings: 593-594; A-24-25). The court then invited defense counsel to move to have the juror declared unfit to continue. In response defense counsel responded as follows: "Yes, judge. I would make that motion based on the record, but I will also make a motion judge, to accept--in view of the note that was sent out by the jury before regarding their inability to decide on two counts, which meant they decided on one count. I believe the court should accept a verdict as to that count upon which they arrived at a verdict." (Proceedings: 595; A-54). The People opposed the taking of a partial verdict, and the court denied defendant's application for the taking of a partial verdict prior to discharge of the juror. The court then indicated that the juror would be released from deliberations and that in view of defendant's lack of consent to the substitution of an alternate juror it had no recourse but to declare a mistrial. (Proceedings: 595-596; A-54-55). 5 DEFENSE MOTION FOR DISMISSAL AFTER MISTRIAL Subsequent to the declaration of a mistrial respondent filed a motion to dismiss the indictment on the ground that a re-trial would subject the defendant to unconstitutional double jeopardy. Relying primarily on Matter of Robles v. Bamberger, 219 A.D.2d 243, Respondent argued that it was an abuse of discretion for the court to have declared a mistrial without first determining whether the jury had reached a partial verdict under the circumstances (A-46-56). The People opposed the motion arguing that "it was the defendant who created the mistrial in this case by his own actions," and that there was insufficient evidence that the jury had arrived at a verdict on any count. (A-57-59). In a decision dated October 9, 2013 the trial court acknowledged that it should have explored whether a partial verdict had been reached. The trial court specifically held that "Clearly, the jury note provided a strong indication that the jury' had reached a partial verdict", and that all parties appeared to have acted under that assumption after the jury note was received. However, instead of dismissing the indictment as in Robles and as urged by Respondent, the court dismissed count one of the indictment only. (A-61-66). 6 ARTICLE 78 PETITION Respondent then commenced an Article 78 petition in the Appellate Division, Second Department seeking to bar the trial court from retrying the Respondent the two remaining counts of the indictment because a retrial would violate Respondent's constitutional double jeopardy protections. (A-67-14). In opposing Respondent's petition, Appellant argued that Respondent had consented to the mistrial and therefore waived double jeopardy protections; and further even ifthere was no such consent, manifest necessity properly justified the mistrial declaration and a retrial of the defendant. (A-122-150). In a unanimous opinion, the Appellate Division granted Respondent's petition, ruling that the trial court had failed to explore all appropriate alternatives before declaring a mistrial on its own motion, and barred retrial of the Respondent on the indictment. (A-152-154). 7 ARGUMENT IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO DECLARE A MISTRIAL WITHOUT FIRST INQUIRING WHETHER THE JURY HAD REACHED A VERDICT ON ANY COUNT GIVEN THE INDICATION FROM THE JURY OF A PARTIAL VERDICT AND DEFENDANT'S REQUEST FOR SUCH AN INQUIRY. The trial court agreed with Respondent that "clearly, the jury note provided a strong indication that the jury had reached a partial verdict" and that both parties acted under this assumption. (A-80). The trial court admitted that it therefore erred in not inquiring whether the jury had a partial verdict, given the established case law precedent. The Appellate Division concurred that the trial court had erred in that regard. Appellant has nevertheless persisted in its claim that the court's failure to inquire about whether a partial verdict had been reached was the correct and proper legal course. Appellant's position is not only contrary to the holding of the trial court and the Appellate Division, but also contrary to the legal precedents addressing this issue. The circumstances of the instant case, although not identical, is akin to the circumstances of Robles V. Bamberger, 219 A.D.2d 243; 1 v. denied 88 N.Y.2d 809, appeal dismissed 88 N.Y.2d 962 (1996); the holding of which has been 8 adopted by this court in Matter of Rivera v. Firetog, 11N.Y.3d 501 (2008). In Robles a juror became unavailable to continue deliberations. There were strong indications that the jury had reached a decision with respect to at least one count of the indictment. The strong indications were based upon a jury note that one decision had been reached, as well as statements by the juror who could not continue to deliberate. Based upon the indications of a partial verdict, defense counsel requested the taking of a partial verdict prior to the declaration of a mistrial. The trial court declined to take a partial verdict. Robles held that when there are indications that the jury has reached a partial verdict on any count of a multiple count indictment, and defense counsel has requested that an inquiry be made regarding whether a partial verdict has actually been reached, the court has a duty to explore all reasonable alternatives prior to declaration of a mistrial. One of the required alternative under such circumstances is inquiring whether a verdict has been reached on any count. Failure to make such inquiry constitutes an abuse of discretion and bars retrial of the defendant on the indictment due to the principles of double jeopardy. Robles, at 247. The trial court in its decision on Respondent's motion to dismiss acknowledged its error. The trial judge correctly concluded that there were strong indications that the jury had reached a partial verdict based upon the jury notes indicating that it was unable to agree on two of the three counts. The implicit 9 inference of the jury note that they could not agree on two counts of the three count indictment was that they had agreed on the other count. Furthermore, the trial judge who was privy to the unrecorded Sidebar Conferences stated in its decision that all parties acted under the assumption that a partial verdict had been reached. In Oliver v. Justices of New York Supreme Court of New York County 36, N.Y.2d 53 (1974), the court held that double jeopardy did not bar retrial of a defendant after the declaration of a mistrial due to a deadlockeq. jury where the jury had alerted the court of a partial verdict, but such verdict was not taken by the court. The court's decision in Oliver was primarily premised upon the defense counsel's failure to seek a partial verdict inquiry. Defense counsel instead chose to stand mute on the issue and the court rightly held that the defense "Having displayed no enthusiasm for the rendering of a partial verdict while the jury was still empaneled and a guilty verdict still possible, the defense may not seek to overturn the court's order of mistrial after discharge of the jury ... ", and it has obtained information that the verdict would have been favorable to the defendant. Oliver, at 58. Here, unlike in Oliver, defense counsel requested the partial verdict after the note which suggested that a partial verdict after the note which suggested that a partial verdict had been reached and unequivocally repeated the partial verdict inquiry request prior to the declaration of a mistrial and discharge of the jury. 10 Appellant cites the court's decision in Matter of Rivera v. Firetog,I I N.Y.3d 501 Appellant in support of its position that a partial verdict inquiry was not appropriate. However, the circumstances of the instant matter and Firetog are readily distinguishable. Firstly, it should be noted that the mistrial was necessitated by a deadlocked jury unlike in Robles and the case at bar, where juror unavailability was the basis of the mistrial. More importantly, the court found that the repeated requests for explanation of all three counts of the indictment undermined any assertion that there was strong indication of a partial verdict. As the trial court correctly stated, the circumstances of this case are much closer to Robles than to Firetog because of the lack of any significant indication that a partial verdict had been reached in Firetog (A-65). Firetog also affirmed the vitality of Robles as good precedent, which supports the ruling of the Appellate Division in this action. The pertinent legal principle based upon all of the applicable case law precedents is that whenever the jury has given a sufficient indication that it has reached a partial verdict and defense counsel requests an inquiry of the jury as to whether a partial verdict has been reached, it is an abuse of discretion for the court to declare a mistrial without first making such an inquiry. 11 In the case at bar, the trial court found that the jury gave strong indications of a partial verdict by means of the jury note. Defense counsel requested a partial verdict inquiry repeatedly prior to the juror being discharged, but the court declared a mistrial, sua sponte, without first making the requested partial verdict inquiry of the jury. This acknowledged error was an abuse of direction by the trial court. In such circumstances, the double jeopardy clauses of the constitutions of New York and the United States bar a retrial of the accused for the same offenses. People v. Baptiste, 72 N.Y. 2d 356 (1988). Matter of Smith v. Brown, 105 A.D.3d 965 (2nd Dept., 2013); Matter of Morris v. Livote, 105 A.D.3d 43 (2013). A retrial of the Respondent is therefore barred by double jeopardy principles. APPELLANT HAS FAILED TO MEET THE HEAVY BURDEN OF DEMONSTRATING THAT THE TRIAL COURT EXPLORED ALL APPROPRIATE ALTERNATIVES PRIOR TO DECLARING A MISTRIAL, SUA SPONTE. The Appellate Division held that the trial court failed to explore all appropriate alternatives before declaring a mistrial on its own. The Appellate Division statement of the law was in conformity with the established precedents of this court. 12 Whenever a mistrial is declared either over the defendant's objection or without his consent, double jeopardy principles will bar a retrial unless there was manifest necessity for the mistrial. The trial court is required to explore all appropriate alternatives prior to declaration of a mistrial and there is sufficient basis in the record for the mistrial. Matter of Enright v. Siedlecki, 59 N.Y.2d 195 (1983). Hall v. Protoker, 49 N.Y.2d 501,505 (1980); Matter of Taylor v. Dowling, 108 A.D.3d 566, 568 (2013); Matter of Smith v. Brown, 105 A.D.3d 965, 967 (2013); US. v. Rozmilovic, 507 F.3d. 130, 139 (2nd cir., 2007). The People bear a heavy burden in demonstrating that there was manifest necessity for the mistrial and that the record indicates that the trial court explored all appropriate alternatives before declaring a mistrial. Arizona v. Washington, 434 U.S. 497, 505 (1978); Capellan v. Stone, 49 A.D.3d 121 (2008). Although the "classic example of manifest necessity is the discharge of a genuinely deadlocked jury" US. v. Rozmilovic, 507 F.3d 130, 137 (2nd cir.,2007) citing US. v. Castellanos, 478 F.2d 749, 751 (2nd cir., 1973), it should be noted that this mistrial was not declared because of jury deadlock. Appellant contends that the record demonstrates that the trial court adequately considered all the appropriate alternatives to a mistrial. Respondent 13 submits that the record amply demonstrates that the trial court failed to appropriately consider the alternatives to a mistrial. Firstly, the crux of the issue before this court is the alternative requested by the defense, which was to make the partial verdict inquiry based upon the jury's note which was indicative of a partial verdict. The trial court essentially admitted that it erred and did not properly exercise its discretion. Exploring the possibility of a partial verdict is among the recognized appropriate alternatives to be considered before declaring a mistrial. US. v. Rozmilovic, at 139. There is no evidence in the record as to why this course was not taken or seriously considered by the court. The court simply stated "I don't believe it's required and I am not going to do it." (A-54). Secondly, although the trial court considered the alternative of obtaining defendant's consent to alternate juror substitution, it never considered the alternative of seeking consent for deliberations to be continued with 11 jurors. This court has recognized consent to 11 juror deliberations as an acceptable and appropriate alternative to declaration of a mistrial. People v. Gajadhor, 9 N.Y.3d 438 (2007); People v. Members, 100 A.D.3d 1543 (4th Dept.,2012); Matter of Smith v. Brown, 105 A.D.3d 965 (2013). 14 Thirdly, the court also failed to explore the possibility that the juror could possibly resume deliberations the following Monday. The juror had no information that his brother had actually been injured or the nature of his condition. Had the court considered the alternative of suspending deliberations until Monday, there may have been no need for the juror to be discharged upon him being apprised of the actual situation with his brother. Because the juror situation developed on a Friday (July 12, 2013), deliberations could have been recessed beyond 24 hours until completion of the weekend, and resumed on Monday when the juror may have become able to properly deliberate in the matter. Such a recess is specifically authorized by statute C.P.L.sec. 3101.10 (2). People v. Members, 100 A.D.3d 1543, 1544. This alternative has been recognized as a viable alternative to a mistrial. In People v. Ferguson, 67 N.Y.2d 383, 388 (1986), this court stated that "it is quite possible that the juror would have been able to continue service within the next few days, in which case a brief continuance would have been available as an alternative to a mistrial (cf. People v. Michael, 48 N.Y.2d, at pp 9-10, supra; United States v. Smith, 621 F.2d, 350, 351, cert denied 449 U.S. 1087)." The failure to consider this alternative in Ferguson demonstrated the lack of manifest necessity for a mistrial. 15 The trial court improperly ruled that it had no recourse but to declare a mistrial because the defendant did not consent to alternate jury substitution. This was only one alternative, and the court's statement evidences its lack of consideration of all appropriate alternatives. Furthermore, the court also had a duty "to obtain enough information so that it was clear that a mistrial is actually necessary." Ferguson at 588. The record does not demonstrate that the trial court made the appropriate inquiries before discharging the jury or why the alternatives were not considered or pursued. "If obvious and adequate alternatives to aborting the trial were disregarded, this suggests that the trial judge acted unjustifiably" US. v. Rozmilovic, 501F.3d130, 138 (2nd cir., 2007) citing Harris v. Young, 607 F.2d 1081, 1085, n.4 (4th cir., 1979). For all the foregoing reasons, the mistrial as declared by the trial court was not justified by manifest necessity. RESPONDENT DID NOT WAIVE HIS CONSTITUTIONAL DOUBLE JEOPARDY PROTECTIONS, EXPRESSLY OR IMPLIEDLY. Appellant argues that Respondent waived his double jeopardy protection by consenting to mistrial. 16 An accused can waive his double jeopardy protections by consenting to a mistrial. However, no such double jeopardy protection waiver occurred in this trial. The question of whether defense counsel consented to a mistrial is a factual determination to be made by the lower courts, and such factual determinations are not disturbed by this court where there is support in the record for the determination. Matter of Marte v. Berkman, 16 N.Y.3d 874. (2011). At the trial court level, Respondent argued that the mistrial "was at the request of the defendant" (A-58). Contrary to the Appellant's position, at no point did the Respondent request a mistrial. The mistrial decision was made by the court on its own, and not upon the motion or request of either party. The mistrial determination was announced as follows:" Since defendant will not consent in writing in open court to substitution of an alternate, I will have no other recourse than to declare a mistrial, and we will have to try the entire case again." (A-595- 596) Just prior to the court's pronouncement, defense counsel had moved for the court to make a partial jury inquiry prior to discharging the juror. Defense Counsel's request was disregarded in accordance with the People's objection. The record does not in any way reflect any request by the defense for a mistrial. Although the court sought the parties consent to the juror discharge and the 17 defendant's consent for substitution of an alternate juror, no such consent was sought with respect to the mistrial declaration. There was therefore no evidence in the record of any express waiver of Respondent's double jeopardy protections. The lower courts made no factual finding that Respondent had waived his double jeopardy protections. This court is not a fact-finding court and the question of whether there was consent to a mistrial is a factual matter, People v. Ferguson, 67 N.Y.2d 383, 389; Matter of Marte (Supra). Although consent to a mistrial "may in some cases be implied from the circumstances leading up to the dismissal of the jury." Ferguson, at 388-389; Matter of Marte, at 875. U.S. v. Rozmilovic 507 F.3d 130, 141. The circumstances here are not consistent with the implied waiver precedents. In People v. Ferguson, this court decided to not disturb the findings of the lower courts that defense counsel had impliedly consented to a mistrial, since the issue was a question of fact. The court specifically held that "their findings of consent must be upheld ifthere is any support in the record for that conclusion" (at 389); despite the fact that the record was rather limited because the chamber conferences discussing the matter was not recorded. 18 Similarly, in Matter of Marte v. Berkman, this court affirmed the rule that a finding of implied consent to a mistrial by the lower court will not be disturbed if there is any support for the finding in the record. The facts in Matter of Marte are actually the opposite of the circumstances before this court. There a partial verdict was taken from an otherwise deadlocked jury. The defendant raised no objection at a so-called 0 'rama conference prior to the partial verdict or prior to the mistrial declaration and discharge of the jury. The court found that there was ample basis in the record for the lower court's finding of implied consent to the mistrial. Here, the crux of the issue was the admitted failure of the trial court to take a partial verdict prior to declaration of a mistrial. Defense counsel timely moved for the court to make a partial verdict inquiry. Appellant in its brief, incorrectly characterizes People v. McFadden, 20 NY Slip Op 08565 as an implied consent authority. This effort is misleading. The issue of implied consent was never implicated or discussed in McFadden. In fact, the defense there actually moved for a mistrial. The issue presented there was whether the partial verdict conviction on a lesser offense precluded retrial on the greater counts on which the jury had not decided; given the defense failure to object to improper jury instructions regarding the order of consideration of the counts. 19 Appellant has cited no precedent where this court made a factual finding of implied consent to a mistrial and waiver of a defendant's double jeopardy protections where the lower courts failed to make a factual finding of implied consent and waiver. Appellant's argument, in effect, urges this court to disregard its existing precedents and to make the factual determination that the Respondent impliedly consented to a mistrial and a waiver of his double jeopardy protections, where none of the lower courts had made any such fact finding. In Unites States v. Rozmilovic, 507 F.3d 130 (2d cir., 2007), the United States Court of Appeals found no implied consent to a mistrial where defense counsel requested a polling of the jury before a mistrial was declared and the jury discharged, despite the fact that defense counsel had earlier joined in a motion for a mistrial. Defense counsel's request for the partial verdict inquiry prior to the mistrial declaration in the case at bar similarly does not constitute a waiver of double jeopardy protections. This court's approach to implied consent is in accord with federal jurisprudence on the issue. Marte v. Vance, 480 Fed. Appx. 83 (2d cir., 2012). 20 For all of the reasons stated herein, a finding of consent or waiver of Respondent's double jeopardy protections is not justified on the record before this court. THE FAILURE OF THE TRIAL COURT TO MAKE A PARTIAL VERDICT INQUIRY BARS RETRIAL ON THE ENTIRE INDICTMENT Appellant urges the court to adopt the position of the trial court that dismissal of the count upon which it is believed the jury may have reached a verdict is a proper cure for its failure to make a partial verdict inquiry. The Appellate Division disagreed; and Appellant has cited no legal authority for this approach. Where there is no manifest necessity for the mistrial, as the Appellate Division found, retrial on the indictment is barred. Illinois v. Somerville, 410 U.S. 458, 461; United States v. Dinitz, 424 U.S. 600, 607; Matter of Davis v. Brown, 87 N.Y.2d 626, 630. The trial court's effort to correct its error by in effect rendering its own post- mistrial verdict is not a legally authorized procedure. Criminal Procedure Law Article 310 sets forth the procedure for the taking of a verdict. This procedure ensures the accuracy and integrity of the verdict. It cannot be presumed or inferred what a jury's actual verdict would be without the 21 actual taking of such verdict in conformity with New York's Criminal Procedure Law. Once a mistrial is declared and the trial is terminated," the judge's power to correct the record only extends to ministerial acts, and does not extend to substantive reassessments of the jury's verdict." Matter of Morgenthau v. Beal, 256 A.D.2d 194, 199; People v. Serrano, 182 Misc.2d 498. In Robles v. Bamberger retrial was barred due to the failure of the trial court to take partial verdict before directing a mistrial, though the court was aware of the actual partial verdict. The verdict sheet clearly disclosed that an acquittal verdict had in fact been reached and the actual count upon which the defendant was acquitted. Here, there was no such reliable evidence of the actual verdict which may have been reached by the jury. It is simply not a good idea to place trial judges in the position of figuring out what a jury verdict may have been declared without the taking of a verdict in accordance with the statutorily established procedure. Although the trial judge's acknowledgement of its error was laudable, there is no legal basis for the trial court to substitute its own verdict for a verdict that was not taken. In Robles, the court found that a retrial on all counts of the indictment was barred rather than mere dismissal of the count upon which the court had reason to believe a verdict had been reached. A retrial on all counts of indictment 22 is therefore barred as the court below properly held. The approach urged by the Appellant would open a mine field of potential dangers arising from trial courts inferring actual verdicts when such verdict was not taken in accordance with the law. It is worth noting the defense motion for a partial verdict inquiry prior to the discharge of the juror and the mistrial declaration did not specify a specific count. CONCLUSION For all the reasons set forth herein, Petitioner-Respondent requests that this court affirm the decision of the Appellate Division granting the Writ of Prohibition barring his retrial on the indictment. South Hempstead, N.Y. Dated: January 29, 2015 23 Respectfully submitted, GARNETT H. SULLIVAN Attorney for Estevan Gentil, Respondent-Petitioner