In the Matter of Eric Smith, Respondent,v.Richard A. Brown, Appellant, Kenneth Holder, &c, et al., Respondents.BriefN.Y.September 17, 2014To be argued by JILL A. GROSS MARKS (TIME REQUESTED: 20 MINUTES) Court of Appeals In the Matter of the Petition of ERIC SMITH, Petitioner-Respondent, against HONORABLE RICHARD A. BROWN, District Attorney of Queens County, Respondent-Appellant. W4444444444444444444444444444444444444444444444444444 REPLY BRIEF FOR APPELLANT W444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Appellant JOHN M. CASTELLANO JILL A. GROSS MARKS Assistant District Attorneys Of Counsel 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-5882 PATRICK MICHAEL MEGARO, ESQ. 626 RXR PLAZA, 6 FLOOR, WEST TOWERTH UNIONDALE, NY 11556 April 14, 2014 Court of Appeals APL-2013-00130 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT ONE THE MISTRIAL ORDER WAS CORRECT AND DID NOT DEPRIVE DEFENDANT OF ANY CONSTITUTIONAL RIGHT.. . . . . . . . . . . . . . . . . . . . . . . . . . 3 POINT TWO THE PETITION IS TIME-BARRED BY THE STATUTE OF LIMITATIONS. . . . . . . . . . . . . . . . . . . . . . . . 14 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 TABLE OF AUTHORITIES Page No. Cases Allen v. United States, 164 U.S. 492 (1896). . . . . . . . . . . . . . . . . . . . . . . . . . 8 DeMarco v. Fitzgerald, 10 A.D.2d 877, reversed on other grounds, 11 N.Y.2d 775 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Enright v Siedlecki, 59 N.Y.2d 195 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . 9 Hines v. Laguardia, 293 N.Y. 207 (1944). . . . . . . . . . . . . . . . . . . . . . . . . . 16 Khatibi v. Weill, 8 A.D.3d 485 (2d Dept. 2004). . . . . . . . . . . . . . . . . . . . . . 18 Matter of Allen v. Strough, 301 A.D. 2d 11 (2d Dept. 2002). . . . . . . . . . . . 18 Matter of Ordway, 196 N.Y. 95 (1909). . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v. Buford, 69 N.Y.2d 290 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. Ferguson, 67 N.Y.2d 383 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Furey, 18 N.Y.3d 284 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Gajadhar, 9 N.Y.3d 438 (2007). . . . . . . . . . . . . . . . . . . . 1, 13, 14 People v. Gale, 79 A.D.3d (2d Dept. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Green, 237 A.D.2d 218 (1 Dept. 1997). . . . . . . . . . . . . . . . . . . . 10st People v. Holloway, 57 A.D.3d 404 (1 Dept. 2008), st leave denied, 12 N.Y.3d 784 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Mason, 233 A.D. 271 (1 Dept. 1996). . . . . . . . . . . . . . . . . . . . . . 7st ii People v. Mejias, 21 N.Y.3d 73 (2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. Michael, 48 N.Y.2d 1 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Rodriguez, 71 N.Y.2d 214 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. Simpkons, 16 A.D.3d 601 (2d Dept. 2005). . . . . . . . . . . . . . . . . . . 7 Ptasznik v. Schultz, 247 A.D.2d 197 (2d Dept.1998). . . . . . . . . . . . . . . . . . 18 Rivera v. Firetog, 11 N.Y.3d 501 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Rossbach v. Rosenblum, 260 A.D. 206 (1st Dept. 1940), affirmed 284 N.Y. 745. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Shufelt v. Beaudoin, 116 A.D.2d 422 (3d Dept. 1986). . . . . . . . . . . . . . . . . 16 Statutes C.P.L. § 270.35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 C.P.L. § 280.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 C.P.L.R. § 217. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 C.P.L.R.§ 7804. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16 Fisch, N.Y. Evidence [2d ed], § 1065, p 602 . . . . . . . . . . . . . . . . . . . . . . . . 18 N.Y. Const, art I, § . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 iii COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------x In the Matter of the Petition of : ERIC SMITH, : Petitioner-Respondent, : -against- : HONORABLE RICHARD A. BROWN, District Attorney of Queens County, : Respondent-Appellant. : --------------------------------------------------------------x REPLY BRIEF FOR APPELLANT PRELIMINARY STATEMENT This brief is submitted in reply to Respondent’s Brief filed on November 25, 2013. The facts and procedural history of this case are discussed in the People’s main brief and will be repeated here only as necessary to clarify a legal point. INTRODUCTION In response to the People’s opening brief, defendant claims that the Appellate Division correctly granted the petition because the trial court’s erroneous mistrial order improperly subjected him to double jeopardy. Defendant claims the trial court declared a mistrial over his objection, and despite his request to proceed with eleven jurors, a procedure to which defendant claims he has a constitutional right. Additionally, defendant claims, the court erred by failing to conduct a proper inquiry and to consider alternatives. Defendant also argues the petition was not time-barred because the constitutional violation – a retrial in violation of double jeopardy – was ongoing and continuous, and the People were responsible for most of the post- mistrial delay in Supreme Court. These arguments are unavailing. First, defendant makes a fundamental mistake in claiming he has a right to a jury of eleven. Rather, defendant may request a jury of less than twelve, but the court retains the ultimate authority to determine whether that procedure would be appropriate in a particular case. In any event, defendant’s actions before requesting a jury of eleven – consenting to a retrial if less than twelve jurors remained after the second alternate was discharged and then consenting mid-deliberations to the discharge of juror 11 – waived any double jeopardy protection from a mistrial and retrial. Moreover, the court denied defendant’s request to proceed with eleven jurors for good reason. As one of the eleven remaining jurors was demonstrably unfit to serve – she had already decided that defendant was not guilty and was viscerally affected by the improper infusion of outside pro- prosecution legal advice – no outcome other than a mistrial was possible and 2 no reason for further inquiry was present. And defendant’s filing of the petition well past the four-month statute of limitations should not be excused on a theory that the threat of retrial was a continuing wrong. In this regard, there was no question that the People intended to retry the case and announced ready to do so no later than June 8, 2011; defendant’s contrary claims, raised for the first time in this Court, are speculative and unsupported by the record. The order of the Appellate Division should be reversed and the mistrial order reinstated. POINT ONE THE MISTRIAL ORDER WAS CORRECT AND DID NOT DEPRIVE DEFENDANT OF ANY CONSTITUTIONAL RIGHT In his brief, defendant erroneously claims (at pp.18-21) that as a criminal defendant, he has a “clear” constitutional right to proceed with eleven jurors, relying largely on People v. Gajadhar, 9 N.Y.3d 438 (2007). But, as argued in the People’s main brief (at pp. 30-38), the Court has never recognized such a right, and with good reason. All Gajadhar held was that a jury of eleven is permissible in a criminal case, and that is a far cry from conferring an absolute right upon defendant to unilaterally elect that procedure. Id., 9 N.Y.3d at 447. Thus, while defendant may request or consent to proceed 3 with eleven jurors after deliberations have begun, defendant does not control the ultimate outcome. Instead, the authority to determine whether to proceed with eleven is vested in the trial court’s discretion. Id. Contrary to defendant’s claim, the court is not required to continue the trial with eleven jurors simply because defendant requests it. There is good reason for the trial court to retain this discretionary authority, as this case so perfectly demonstrates (see also People’s Main Brief at 33-36). Here, mid-deliberations, defendant consented to dismissal of the second alternate, with the explicit understanding that if the jury could not continue as a panel of twelve, the case would be retried, and then consented to the discharge of Juror 11, leaving eleven jurors. At that point, defendant claimed a right to proceed with those eleven jurors. But that request contradicted defendant’s prior consent to a retrial under those precise circumstances. Thus, the trial court's refusal to permit defendant to withdraw that consent and declaration of a mistrial were proper exercises of its discretion. See generally People v. Ferguson, 67 N.Y.2d 383, 388 (1986). Where the defendant consents to a mistrial, a retrial is not barred by double jeopardy. See People v. Ferguson, 67 N.Y.2d 383, 388 (1986). Indeed, a defendant may implicitly consent to a mistrial, and the trial court’s 4 finding of consent must be upheld if there is any support in the record for that conclusion. Id. at 389. The record here amply supports a finding of defendant’s consent (Proceedings: 341-342; A490-A491), and the court’s mistrial ruling should be upheld. Indeed, the facts here are even stronger than in Ferguson, where only counsel’s consent was procured, and this Court found that was sufficient. Id. at 389. Here, defendant consented personally and through his attorney and the court properly relied on those consents in making its mistrial determination. Moreover, while defendant’s consent alone would have been enough to sustain the mistrial order, the record in this case leaves no doubt that one of the remaining eleven jurors – Juror 12 – was also grossly unqualified to continue her service as a juror. See C.P.L. § 270.35. As described more fully in the People’s brief, the deliberations in this case were fraught with sharp divisions and pointed exchanges, initially about the evidence supporting gun possession, and later about Juror 11's sharing advice from an outside lawyer on that topic. Jurors 11 and 12 were at odds over what constituted evidence and whether to “ask the judge” for clarification (Proceedings: 359, 360, 362-363; A 508, A509, A511-A512). And even after the jury agreed to seek clarification from the court (Proceedings: 360, 361; A509, A510), and the court gave its 5 instructions, Jurors 11 and 12 remained at odds. Back in the jury room, Juror 12 confronted Juror 11, stating she was “really upset about what happened” – Juror 11's resort to an outside source for advice – and wanted to “excuse” herself from the case (Proceedings: 361; A 510). Other jurors joined the fray, expressing discomfort with Juror 11 and chiding him for his conduct (Proceedings: 361, 366-367; A510, 515-516). One juror agreed with Juror 11 (Proceedings: 366-367; A515-516) and Juror 11 defended himself (Proceedings: 362; A511). This further angered and upset Juror 12 (Proceedings: 359, 361: A 508, 510). Ultimately, the jury agreed to ask the court for advice. Juror 7 co-signed that note because Juror 12 “was going to cry” (Proceedings: 364, 365-366; A513, 514-515). Based on Juror 12's visceral and emotional reactions, the court had ample reason to conclude that Juror 12 had been had been deeply and negatively affected by the improper introduction of outside pro-People legal advice into the deliberations and possessed a state of mind that prevented her from rendering an impartial verdict. C.P.L. § 270.35; People v. Gale, 79 A.D.3d (2d Dept. 2010). On this basis, the court reasonably determined it would be improper to grant defendant’s request to proceed with the remaining panel of eleven jurors as it included an unqualified juror. Indeed, the court, 6 having concluded that Juror 11 was unqualified, had no other choice. Because continuing the trial in conformity with the law would have been physically impossible, the court’s declaration of a mistrial was proper and indeed required. C.P.L. § 280.10(3); see e.g. People v. Simpkons, 16 A.D.3d 601, 601- 602 (2d Dept. 2005); People v. Mason, 233 A.D. 271 (1 Dept. 1996).st Moreover, the court was satisfied that Juror 12 could not serve based upon her inability to deliberate “free of prematurely formed biases and alliances inimical” to her oath as a juror, see People v. Mejias, 21 N.Y.3d 73, 85 (2013)(Lippman, C.J., dissenting); see also People v. Rodriguez, 71 N.Y.2d 214 (1988). Juror 12 admitted she had made up her mind about the case the evening before the jury was exposed to the outside advice; the conflict with Juror 11 only solidified her resolve that defendant was not guilty. Thus, when Juror 11 presented the outside attorney’s view that defendant’s intent to use the weapon should be presumed from his possession of it, a view that unquestionably favored the People, Juror 12 became indignant and confronted Juror 11. As Juror 12 informed the court, she opined to fellow jurors that they still had to consider all the evidence, including defendant’s testimony that he was not carrying a weapon that night. Juror 12's premature decision about the outcome of the case violated her oath as a juror to keep an open mind 7 throughout the deliberations. C.P.L. § 280.10(3); see e.g. People v. Holloway, 57 A.D.3d 404 (1 Dept. 2008), leave denied, 12 N.Y.3d 784 (juror formedst premature opinion in a manner that would prevent him from serving as fair and impartial, and did so on the basis of information not in evidence). Indeed, in responding to the first jury note, in which the jurors told the court they were deadlocked, the Court issued an Allen-type charge (Proceedings: 343-347; A492-496)(see Allen v. United States, 164 U.S. 492 [1896]) reminding each juror of the promises made during voir dire and the reasons these jurors were selected to serve. In this regard, the Court specifically asked each juror to “start with a fresh slate” and not to “feel bound by how you felt before whether you favored conviction or a verdict of not guilty” (Proceedings: 345, A494). The Court exhorted each juror to have the “strength and courage to be flexible, be willing to change your position if reevaluation of the evidence convinces you a change is appropriate” (Proceedings: 345; A494), stating, “[d]o not, out of pride or stubbornness, adhere to an opinion or conclusion that you no longer believe to be correct” (Proceedings: 345; A494). Juror 12 was admittedly unable to keep an open mind, and that, coupled with her highly emotional reaction to the outside advice, rendered her unqualified to continue as a juror. C.P.L. § 280.10(3). 8 As this Court has recognized, cases of juror bias are often based on “subtle indications of discontent, not always apparent on the cold face of the record presented to an appellate court” and in such instances, the trial judge, “better than any other” has a unique vantage point and ability to “detect the ambience of partiality” . . . and is thus properly “entrusted with considerable discretion in making mistrial determinations” People v. Michael, 48 N.Y.2d 1, 10 (1979); see also Enright v Siedlecki, 59 N.Y.2d 195 (1983). In this regard, as the Court has “repeatedly stressed,” no “per se rules or mechanical formulas apply to mistrial determinations,” and certainly no particular inquiry is required to justify a trial court’s otherwise proper mistrial ruling. Rivera v. Firetog, 11 N.Y.3d 501, 509-510 (2008). Here, having considered all the circumstances, including Juror 12's demeanor and statements, the court properly exercised its discretion in discounting her self-serving statement that she could continue if Juror 11 were not present. Because of her premature determination and other well- documented infirmities, Juror 12's statement was simply insufficient to remove the taint. People v. Furey, 18 N.Y.3d 284 (2011) (juror’s unequivocal assurances of impartiality ineffective to dispel finding that deliberating juror was unqualified due to bias). 9 And, contrary to defendant’s further contention, by interviewing the three jurors mentioned in the note, the judge’s inquiry satisfied People v. Buford, 69 N.Y.2d 290, 298-299 (1987). In that case, this Court held that in determining whether to disqualify a deliberating juror, “the court should conduct an inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case” Id. But as this Court has explained, the inquiry is not necessary at any sign of a potential infirmity. Thus, for instance, in People v. Mejias, the suggestion of premature deliberations in a jury note did not warrant any inquiry at all. Id., 21 N.Y.3d 73. Nor was the court in this case required to articulate all of the reasons for its mistrial determination because the record was more than adequate to support its ruling. E.g. People v. Green, 237 A.D.2d 218 (1 Dept.st 1997)(the record showed that one of the jurors claimed a ring was missing and accused another juror of stealing it). For one thing, because Juror 11 had committed gross misconduct, and his removal, coupled with defendant’s prior consent to a retrial, made it physically impossible to proceed, there was no need for the Court to explicitly find that less drastic alternatives were not viable. And even absent defendant’s consent, the basis for Juror 12's 10 disqualification was made manifest on the record – Juror 12 had prematurely “made up [sic][her] decision” about the case (Proceedings: 363; A512). Moreover, her emotionally charged response to the gross misconduct of Juror 11 tainted her irrevocably. The court wisely determined not to subject Juror 12 – whose action in bringing the matter to the court’s attention was exemplary – to further distress or humiliation. Indeed, to chastise Juror 12 could have had the unfortunate and undesirable effect of quashing the laudable desire of this juror, or any other juror, to inform the court of outside influences when seated on a future panel. Since defendant had consented to a retrial if eleven jurors remained, his contradictory request to proceed with the remaining eleven jurors was simply not an option given Juror 12's visceral response to the misconduct, and he had not asked to proceed with ten jurors, the court wisely exercised its discretion and denied defendant’s improperly-motivated request. The circumstances were sufficiently dire to eliminate the only alternative possibility suggested by defendant – eleven jurors – and no other alternative was presented. And that is all that double jeopardy principles require – consideration of alternatives suggested by defendant. Contrary to defendant’s suggestion, double jeopardy does not compel acceptance of anything beyond 11 that, especially since defendant had not requested a panel of ten, or any other number other than eleven. And the reason defendant did not make such a request is evident – defendant wanted to retain the tainted Juror 12 on the panel. The record left little doubt that Juror 12 had decided in defendant’s favor [Proceedings: 363; A512] and defendant could have had little doubt that Juror 12 would not have been swayed from that view during any future deliberations. Defendant saw strategic advantages in keeping this juror, but these advantages were impermissible, given Juror 12's near breakdown and premature determination. Defendant’s strategy was revealed when he tried, unsuccessfully, to rehabilitate her during the interview. Thus, after Juror 12 described how intensely and personally she reacted to the insertion of outside advice by Juror 11, defense counsel asked whether she felt she could “continue on and deliberate in this case” (Proceedings: 363; A512). To counsel’s dismay, Juror 12 responded that she “pretty much had made up [her] decision” the previous day (Proceedings:363; A512), an independent basis for concluding that Juror 12 had violated her oath to remain open throughout the deliberations. Significantly, because Juror 12 was so valuable to defendant, he never asked the court to allow the trial to proceed with ten jurors. All he asked 12 was to continue with eleven jurors (Proceedings: 373, 374; A522, 523). Defendant believed any “taint” to Juror 12 “had been removed” and insisted that he would get a “fair trial” with the jury of eleven (Proceedings: 374; A523). The failure to request a jury of less than eleven only buttresses Juror 12's demonstrable pro-defendant bias and defendant’s manifest desire to keep that juror on the panel. Thus, although defendant now claims that a jury of less than eleven would also be possible, defendant never requested a jury of ten. And since a jury of ten could not have proceeded without defendant’s consent – a constitutional prerequisite for continuing with a jury of less than twelve – defendant’s present request has no bearing on the trial court’s decision and is simply too late. See People v. Gajadhar, 9 N.Y.3d at 447; N.Y. Const, art I, § 2. In this regard, although defendant’s claim about a jury of less than eleven is not squarely before the Court, defendant’s argument raises the question of how small a number of deliberating jurors would be feasible before the number becomes absurd. Defendant’s argument, taken to its logical conclusion, would suggest that a juror of one should be permitted. That is well beyond any workable and reasonable definition of a trial by jury and provides 13 more than enough reason to reject the claim that defendant has a unilateral right to elect a panel of any number he wishes less than twelve. On this record, no outcome other than a mistrial was possible in response to defendant’s request to proceed with eleven jurors. Defendant agreed that Juror 11 was tainted, and asked to proceed with the remaining panel of eleven. But there was at least one other tainted juror. And since removal of that juror brought the number of qualified jurors down to ten, a number defendant had not requested for an otherwise “impermissible” strategic “advantage,” see People v. Gajadhar, 9 N.Y.3d at 437, the court had no reasonable alternative remedy nor any reason for further questioning of the jury. The request was properly denied and a mistrial was manifestly required. POINT TWO THE PETITION IS TIME-BARRED BY THE STATUTE OF LIMITATIONS. For the first time in this litigation, defendant challenges the People’s assertion that defendant allowed the four-month limitations period to lapse by delaying the retrial for two and one-half years. The Appellate Division ruled as a matter of law that the statute of limitations should be relaxed on a “continuing wrong” theory, notwithstanding the veracity of the People’s recitation of the time-line between the mistrial/retrial order and the filing of the 14 petition. Had defendant timely challenged the People’s claim of defendant’s unwarranted delay, the People would have had the opportunity to support its assertions by reference to the Supreme Court file. In any event, this Court can take judicial notice of the Supreme Court clerk’s file, and because it supports the People’s position here, defendant’s contrary claim should be rejected. In his petition, defendant stated that on July 22, 2010, the trial court declared a mistrial and ordered a retrial (Petition, ¶ 30; A13). Defendant also stated that “after extensive delays not relevant to the instant petition,” the retrial was scheduled to commence in Queens County Supreme Court on January 24, 2013 (Petition, ¶ 31; A13). The People responded that the petition should be dismissed pursuant to CPLR § 7804(f) because petitioner failed to initiate the instant proceeding within four-months of the July 22, 2010 mistrial and retrial order as required by C.P.L.R. § 217(1), the limitations period for commencing an Article 78 proceeding. Instead, the People stated, petitioner filed the petition on January 22, 2013, two and one-half years after the order at issue in this Article 78 proceeding (QDA Answer ¶¶ 31-33, A: 59-A60). And, the People indicated, the delay was primarily attributable to defendant’s dilatory tactics, noting that during the two and one-half year period, the case was called in 15 Supreme Court, Queens County, approximately every thirty days, and that on at least three of the occasions that the People answered ready for trial, and the defense answered not ready. Furthermore, the People stated, after both sides answered ready in early January 2013, and agreed to a trial date of January 24, 2013, defense counsel appeared on the scheduled trial date and requested another adjournment, stating “not ready” for trial and citing the pending Article 78 (QDA Answer ¶¶ 27, 28; A58-A59). Notably, defendant did not reply to this matter raised in the People’s answer or in any way dispute the People’s claim that defendant was responsible for most of the delay between the July 2010 mistrial/retrial order and the January 2013 petition, instead resting on the allegation in his Petition that the “extensive delays” were “not relevant to the instant petition” (Petition ¶ 31; A13). Because defendant failed to utilize the reply procedure available in C.P.L.R.§ 7804(d), the People’s allegations regarding the delay must be deemed admitted, true and correct. E.g. Hines v. Laguardia, 293 N.Y. 207 (1944)(in article 78 proceeding, affirmative allegations in the answer to which no reply was served were admitted); Shufelt v. Beaudoin, 116 A.D.2d 422 (3d Dept. 1986)(petitioner’s failure to serve a reply concerning alleged matters raised in response to Article 78 petition precluded right to press the point on 16 appeal); DeMarco v. Fitzgerald, 10 A.D.2d 877, reversed on other grounds, 11 N.Y.2d 775 (Article 78 petitioners, by failing to serve a reply, were deemed to have admitted new matters alleged in answer). And, indeed, the Supreme Court record establishes that defendant, not the People, was responsible for the bulk of the delay (Supreme Court File Jacket; A529-A530). Now, in his Respondent’s Brief in the Court of Appeals (at pp. 32- 33), defendant argues that the Court should reject the People’s claim that defendant was responsible for the delay. For the first time, defendant argues, erroneously, that since the People were ready on only five occasions, a fortiorari, the People were not ready on the other occasions. But respondent errs and his claim is too late. Had defendant timely made that assertion in the Appellate Division, the court of first instance in this Article 78 proceeding, the People would have had the opportunity to demonstrate that its position is fully supported by the Supreme Court record (Supreme Court File Jacket; A529- A530). Specifically, the official Supreme Court file jacket establishes that during the period between the mistrial ruling and the filing of the petition, the People were charged with just twenty-one days of the delay. And the Supreme1 The jacket shows the People were charged with the period from November 29,1 2011 to December 8, 2011 and from January 10, 2012 to January 23, 2012 (Supreme Court File; A529-A530). 17 Court File Jacket is a official court record of which this Court can take judicial notice. See, e.g., Fisch, N.Y. Evidence [2d ed], § 1065, p 602 (court may take judicial notice of court records and files, including entire county clerk’s file); Khatibi v. Weill, 8 A.D.3d 485, 485-486 (2d Dept. 2004); Matter of Allen v. Strough, 301 A.D. 2d 11, 18 (2d Dept. 2002); Ptasznik v. Schultz, 247 A.D.2d 197, 198-199 (2d Dept.1998); Matter of Ordway, 196 N.Y. 95 (1909); Rossbach v. Rosenblum, 260 A.D. 206, 210 (1st Dept. 1940), affirmed 284 N.Y. 745. Because defendant filed his petition seeking to prohibit a retrial more than two and one-half years after the court ordered the retrial, his petition was untimely. As defendant knew the retrial was pending since the day of the mistrial ruling, and, contrary to his speculation, no negotiations for a disposition were reported, the post-mistrial delay in the Supreme Court was primarily due to defendant’s malingering. And that delay should not be rewarded on the theory that the threat of a mistrial constituted a continuing wrong, effectively staying the statute of limitations. Such a ruling invites abuse and should not be countenanced. The petition was time-barred and should have been dismissed. 18 CONCLUSION For the reasons set forth above, the order of the Appellate Division decision prohibiting the People from proceeding with a retrial should be reversed and the case remanded to the trial court for retrial. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County _________________________ By: JILL A. GROSS MARKS Assistant District Attorney JOHN M. CASTELLANO JILL A. GROSS MARKS Assistant District Attorneys Of Counsel April 14, 2013 19