In the Matter of Eric Smith, Respondent,v.Richard A. Brown, Appellant, Kenneth Holder, &c, et al., Respondents.

Brief

N.Y.September 17, 2014

To be argued by JILL A. GROSS MARKS (TIME REQUESTED: 20 MINUTES) Court of Appeals State of New York In the Matter of the Petition of ERIC SMITH Petitioner-Respondent, against HONORABLE RICHARD A. BROWN, District Attorney of Queens County, Respondent-Appellant. W4444444444444444444444444444444444444444444444444444 BRIEF FOR APPELLANT W4444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County 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 15, 2014 Court of Appeals APL-2013-00130-REV TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 THE TRIAL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The People’s Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Defendant’s Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Defendant’s Motion for a Trial Order of Dismissal. . . . . . . . . . . . . . 11 The Jury Charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Defendant Consents to a Retrial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Jury Deliberations, Deadlock, and Notes. . . . . . . . . . . . . . . . . . . . . . 13 Outside Legal Advice Leads to Juror Misconduct and a Mistrial. . . 14 The Article 78 Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 POINT ONE THE APPELLATE DIVISION ERRONEOUSLY GRANTED THE PETITION BECAUSE DEFENDANT WAIVED HIS DOUBLE JEOPARDY CLAIM BY CONSENTING TO A RETRIAL AND THE TRIAL COURT PROPERLY DECLINED TO PROCEED WITH ELEVEN J URORS AFTER THEY R E C E I V E D ERRONEOUS OUTSIDE LEGAL ADVICE ON A CRITICAL ISSUE IN THE CASE.. . . . . . . . . . . . . . . . . . . . . 23 A. Defendant Consented to a Retrial and Waived Any Claim That It Subjected Him to Double Jeopardy or Violated His “Right” to Proceed with a Panel of Eleven. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 B. Defendant Had No Right to Proceed With Eleven Jurors and the Trial Court Had Discretion to Deny That Request. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 C. The Trial Court Acted Well Within Its Discretion in Concluding that a Trial By a Jury of Eleven Was Not Feasible and That A Mistrial Was Manifestly Necessary After a Deliberating Juror Shared Erroneous Outside Legal Advice with the Entire Deadlocked Panel On A Critical Issue in the Case. . . . . . . . . 39 POINT TWO THE PETITION WAS FILED OVER TWO YEARS PAST THE FOUR-MONTH LIMITATIONS PERIOD AND IS TIME-BARRED. . . . . . . . . . . . . . . . . . . . . 51 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 ii TABLE OF AUTHORITIES Page No. Cases 9 Wheat [22 US] at 580. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Allen v. United States, 164 U.S. 492 (1896). . . . . . . . . . . . . . . . . . . . . . . 2n.1 Arizona v. Washington , 434 U.S. 497 (1977). . . . . . . . . . . . . . . . . . . . . . . 41 Cancemi v. People, 18 N.Y. 128 (1858). . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Colodny v. New York Coffee and Sugar Exchange, 2 N.Y.2d 149 (1956). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 55 Edmead v. McGuire, 67 N.Y.2d 714 (1986). . . . . . . . . . . . . . . . . . 51, 52, 54 Grant v. Senkowski, 95 N.Y.2d 605 (2001). . . . . . . . . . . . . . . . . . . . . . 53, 55 Hall v. Potoker, 49 N.Y.2d 501 (1980).. . . . . . . . . . . . . . . . . . . . . . . . passim Holtzman v. Goldman, 71 N.Y.2d 564 (1988). . . . . . . . . . . . . . . . . . . . . . . 25 Holtzman v. Marrus, 74 N.Y.2d 865 (1989). . . . . . . . . . . . . . . . . . . . . . . . . 52 Johnson v. Carro, 24 A.D.3d 140 (1 Dept. 2006). . . . . . . . . . . . . . . . . . . . 55st Lubin v. Board of Education, 60 N.Y.2d 974 (1983). . . . . . . . . . . . . . . 53, 55 Matter of Davis v. Brown, 87 N.Y.2d 626 (1996). . . . . . . . . . . . . . . . . 40, 49 Matter of Enright v. Siedlecki, 59 N.Y.2d 195 (1983. . . . . . . . . . . . . . passim Matter of Grant v. Kriendler, 162 A.D.2d 531 (2d Dept. 1990). . . . . . . . . 40 Matter of Marte v. Berkman, 16 N.Y.3d 874 (2010). . . . . . . . 25, 26, 29, 50 Matter of Rivera v. Firetog, 11 N.Y.3d 501 (2008). . . . . . . . . . . . . . . . 25, 50 Mikel v. Mark, 249 A.D.2d 993 (4 Dept. 1998). . . . . . . . . . . . . . . . . . . . . 44th Mundy v. Nassau County Civ. Serv. Commn., 44 N.Y.2d 352 (1978) .. . . . 52 iii People ex rel. Rohrlich v. Follette, 20 N.Y. 2d 297 (1967). . . . . . . . . . 35, 36 People v. Brooks, 50 A.D.2d 319 (2d Dept. 1975). . . . . . . . . . . . . . . . . 48, 49 People v. Buford, 69 N.Y.2d 290 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . 49 People v. Diaz, 10 A.D.2d 80, affirmed, 8 N. Y. 2d 1061 (1960). . . . . . . . 36 People v. Duchin, 16 A.D. 2d 483, 485 (1962), affirmed, 12 N.Y. 2d 351 (1963).. . . . . . . . . . . . . . . . . . . . . . . . . 34, 36 People v. Echevarria, 6 N.Y.3d 89 (2005). . . . . . . . . . . . . . . . . . . . . . . 26, 27 People v. Ferguson, 67 N.Y.2d 383 (1986). . . . . . . . . . . . . . . . . . . . . . . . . 40 People v. Gajadhar, 9 N.Y.3d 438 (2007). . . . . . . . . . . . . . . . . . . . . . passim People v. Garcia, 215 A.D.2d 246 (1 Dept. 1995). . . . . . . . . . . . . . . . 48, 49st People v. McFadden, 20 N.Y.3d 620 (2013). . . . . . . . . . . . . . . . 26, 28, 50 People v. Mejias, 21 N.Y.3d 73 (2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 People v. Michael, 48 N.Y.2d 1 (1979). . . . . . . . . . . . . . . . . . . . . . . . . 40, 48 People v. Page, 88 N.Y.2d 1 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34 People v. Ryan, 19 N.Y.2d 100 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Tinsley, 58 N.Y.2d 990 (1983). . . . . . . . . . . . . . . . . . 44, 47-48, 49 People v. Toland, 2 A.D.3d 1053 (3d Dept. 2003). . . . . . . . . . . . . . . . . . . . 44 People v. Wells, 15 N.Y.3d 927 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 People v. Wingate, 17 N.Y.3d 469 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . 35 Putter v. North Shore University Hospital, 7 N.Y.3d 548 (2006). . . . . . . . 54 Queensborough College v. State Human Rights Board, 41 N.Y.2d 926 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 54, 55 iv Railroad Telegraphers v Railway Express Agency, Inc., 321 U.S. 342 (1944). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53 Red Hook v. New York Board of Standards, 5 N.Y.3d 452 (2005). . . . 52, 53 Rosenthal v. City of New York, 283 A.D.2d 156 (1st Dept. 2001). . . . . . . . 52 Schumer v. Holzman, 60 N.Y.2d 46 (1983). . . . . . . . . . . . . . . . . . . . . . . . . 25 Simmons v. United States, 142 U.S. 148. . . . . . . . . . . . . . . . . . . . . . . . 48, 49 Smith v. Brown, 105 A.D.3d 965 (2d Dept. 2013). . . . . . . . . . . . . . . . . . 4, 23 Smith v. Marrus, 133 A.D.3d 708 (2d Dept. 2006). . . . . . . . . . . . . . . . . . . 44 Suarez v. Byrne, 10 N.Y.3d 523 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 United States v. Jorn, 400 U.S. 470 (1970). . . . . . . . . . . . . . . . . . . . . . . . . 47 Windy Ridge Farm v. Assessor of Town of Shandaken, 11 N.Y.3d 725 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 55 Zumpano v. Quinn, 6 N.Y.3d 666 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Statutes C.P.L. § 280.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 40, 48 C.P.L.R. § 217. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 52 C.P.L.R. § 7804. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 52 N.Y. Const. Art. I § 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32n.6, 33 Penal Law § 265.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Vehicle and Traffic Law § 1110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 v COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------x In the Matter of the Petition of : ERIC SMITH, : Petitioner-Respondent, : -against- : HONORABLE RICHARD. BROWN, : District Attorney of Queens County, : Respondent-Appellant. --------------------------------------------------------------x STATEMENT PURSUANT TO RULE 5531 OF THE C.P.L.R. 1. The civil index number of this case is 2013-751 (Appellate Division, Second Department). 2. The full names of the parties are the Honorable Richard A. Brown, Queens County District Attorney, and Mr. Eric Smith. 3. This action was commenced by the filing of a petition under C.P.L.R. Article 78 in the Appellate Division, Second Department. 5. This appeal is from the April 17, 2013 decision of the Appellate Division, Second Department, granting the petition and prohibiting the District Attorney from retrying petitioner in the criminal action against him entitled People v. Eric Smith, filed under Queens County Indictment No. 1075/09). 6. This appeal is prosecuted by the appendix method pursuant to 22 N.Y.C.R.R. § 670.9 (b). vi COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------x In the Matter of the Petition of : ERIC SMITH, : Petitioner-Respondent, : -against- : HONORABLE RICHARD. BROWN, : District Attorney of Queens County, : Respondent-Appellant. --------------------------------------------------------------x BRIEF FOR APPELLANT PRELIMINARY STATEMENT Appellant District Attorney appeals as of right from an April 18, 2013 order of the Appellate Division, Second Department, prohibiting the retrial of Eric Smith, a defendant in a criminal action pending in the Supreme Court, Queens County, under Indictment Number 1075/09. The Appellate Division held that double jeopardy barred the retrial because the trial court declared a mistrial over defendant’s objection without a showing of manifest necessity. The Second Department reasoned that the trial court, after discharging a juror who exposed the entire deliberating panel to outside legal advice, should nevertheless have considered continuing the trial with eleven jurors. INTRODUCTION On Friday evening, December 5, 2008, Eric Smith (“defendant”) drove his car through two stop signs without stopping. During the ensuing traffic stop, the police recovered a loaded .45 caliber semi-automatic pistol from defendant’s waistband. Appellant District Attorney (“the People”) charged defendant with two counts of Criminal Possession of a Weapon in the Second Degree under Penal Law §§ 265.03(3)(knowing possession of a loaded firearm with the intent to use it unlawfully against another) and 265.03(1)(b)(knowing possession of a loaded firearm outside defendant’s home or place of business) and two violations of Vehicle and Traffic Law § 1110(a)(o)(A)(disobeying the instructions of an official traffic control device). Defendant’s trial commenced in Queens County Supreme Court on July 13, 2010 before the Honorable Robert McGann and a jury. On the first day of deliberations, the jury issued a deadlock note, and the court responded with an “Allen” charge. Then, after acquiescing in the court’s release of the1 first alternate for tardiness, defendant consented to dismissal of the second alternate, with the understanding that if the jury could not continue as a panel of twelve, the case would be retried. The next morning, two jurors issued a note informing the court that Juror eleven had shared outside legal advice on gun cases with the rest of the jury. Upon interviewing those three jurors, the court learned that Juror 11 Allen v. United States, 164 U.S. 492 (1896).1 2 had advised the entire panel of deliberating jurors, based on a conversation with his attorney-friend, that the only question in a gun-possession case was whether the accused was in possession of a gun. If so, according to the advice, the requisite intent to use the gun unlawfully should be presumed. This contradicted the court’s instruction that the presumption was permissive, not mandatory. Juror 11 was discharged for gross misconduct, to which defendant consented, leaving eleven jurors and no alternates. The People objected to continuing the trial. The defense asked to proceed with eleven jurors, claiming it was his right, and asked the court, in the alternative, to poll the jurors. The court denied the applications and declared a mistrial, ruling further inquiry was unnecessary because the absolute “heart,” “integrity,” and “sanctity” of the jury process was incurably “tainted” and “compromised” as a result of the juror misconduct. Defendant’s case was adjourned until October 4, 2010, and the retrial was scheduled to commence on numerous dates from then until January 24, 2013. On the latter date, retrial was to begin in earnest but defendant was granted a last-minute adjournment based on an Article 78 petition filed the day before. The petition, filed on January 23, 2013 in the Appellate Division, Second Department, sought to prohibit Queens County District Attorney Richard A. Brown and Queens County Supreme Court Justices Kenneth Holder 3 and Joseph Zayas (the “Justices”) from retrying defendant due to double jeopardy. Defendant contended a mistrial was not manifestly necessary and2 violated his “right” to proceed with eleven jurors. The People and the Justices opposed the petition on the grounds that it was time-barred, the trial court providently exercised its discretion in declaring a mistrial, and defendant had no “clear legal right” to a jury of eleven.3 In a decision rendered April 17, 2013, the Second Department granted the petition and prohibited defendant’s retrial, holding the petition was timely, a mistrial was not manifestly necessary, the court failed to consider alternatives such as continuing with eleven jurors, and the retrial violated double jeopardy. Smith v. Brown, 105 A.D.3d 965 (2d Dept. 2013). The People appealed to this Court as of right, the Appellate Division’s determination involving the construction of the double jeopardy clauses of the United States and New York constitutions. The Appellate Division’s decision should be reversed and the People permitted to retry defendant under the indictment in Queens County Supreme Court. QUESTIONS PRESENTED 1. Did defendant waive any claim that the court erred in refusing to proceed with eleven jurors and declaring a mistrial by consenting By the time the petition was filed, Justice McGann had retired and the retrial was2 pending before Justice Holder; Justice Zayas is the administrative judge. To date, the Justices have not appeared in this Court in this case.3 4 to a retrial if the jury could not continue as twelve and then consenting to the discharge of a deliberating juror when no alternates remained? 2. Did the Appellate Division err in concluding that the trial court failed to consider whether to proceed with eleven jurors, and did People v. Gajadhar, 9 N.Y.3d 438 (2007), which authorized such a procedure upon the court’s approval, provide defendant with an affirmative right to so proceed upon his request? 3. Did the trial court providently exercise its discretion in concluding that a mistrial was manifestly necessary, and that proceeding with eleven jurors was not feasible, after receiving a note from two jurors complaining about a third juror’s conduct, interviewing those three jurors, and learning that the subject juror imparted to the deliberating panel his attorney friend’s legal advice on gun-possession, the advice went to the heart of the deadlock issue, and was erroneous? 4. Was the petition time-barred by the special four-month limitations period applicable to extraordinary relief under Article 78 when defendant waited more than two years to file the petition, malingered in the trial court, and challenged the retrial ruling as a continuing violation even though the heart of his complaint was the trial court’s mistrial ruling and denial of his “right” to proceed with eleven jurors? 5 SUMMARY OF ARGUMENT Defendant waived any claim that the mistrial and retrial orders unconstitutionally subjected him to double jeopardy or violated his “right” to proceed with eleven jurors. When the last alternate was excused, defendant consented to a retrial if a juror became unavailable, and when a juror committed gross misconduct, defendant consented to his discharge. By these consents, defendant relinquished any claim that the retrial order was erroneous. In any event, the trial court had no choice but to declare a mistrial and defendant had no right to proceed with a jury of eleven. The entire panel of twelve was tainted by its exposure to erroneous outside legal advice, delivered with the intent to influence the other jurors on the key issue in the case. That advice had, moreover, created a considerable disruption in the jury room, causing direct confrontations and angry exchanges. Still further, and perhaps most significantly, all of the remaining jurors had failed to heed the court’s instructions that they should promptly report any outside influence to the judge. Indeed, the jurors took numerous steps in which they discussed the outside legal advice, and even issued a jury note for a clarification of the law and received the court’s response before two of the jurors decided to inform the court of what had happened. Because of the centrality of the advice and the jurors’ reaction to it, the trial court justifiably lacked faith in the deliberative process, including the jurors’ ability to follow instructions should the court attempt to proceed with the trial. 6 For these reasons, the court acted well within its discretion in concluding that a trial by eleven of those jurors would have unduly compromised the fundamental sanctity of the jury-trial process. And while a criminal defendant has a right to a trial by a jury of twelve, a jury of eleven is not a right, and cannot proceed without the trial court’s approval. Here, the trial court, whose first-hand observations of the jury are entitled to the greatest deference, properly declined to proceed with eleven jurors because the entire jury of twelve was unduly tainted and none of them could be expected to deliberate without compromising the integrity of the proceeding. The mistrial was manifestly necessary . Moreover, the petition, filed well past the four-month limitations period applicable to relief under Article 78, is time-barred. After the court declared a mistrial and ordered a retrial, defendant malingered for over two years before filing the petition. This conduct does not warrant a relaxation of the limitations period under the rationale that the People’s intent to retry defendant is a continuing wrong, especially since the crux of defendant’s complaint is that the court erred in declaring a mistrial well more than two years before he filed his petition. 7 STATEMENT OF FACTS THE TRIAL The People’s Case At about 10:25p.m. on December 5, 2008, Officers PATRICK AGUGLIARO and JASON BARR observed defendant drive a white Pontiac through a stop sign at an intersection in Queens (Agugliaro: 12-14, 30; Barr: 27-29; A80-A82, A98, A176-A178). Officer Barr immediately began4 following the Pontiac in the unmarked police car (Agugliaro: 14-15, Barr: 29; A82-A83, A178). At the next intersection, defendant failed to stop for the stop sign there (Agugliaro: 15, 30; Barr: 29; A83, A98, A178). Barr signaled the Pontiac to pull over (Agugliaro: 15, 16; Barr: 29, 85; A83, A84, A178, A234) and parked the police vehicle across the middle of the road, its lights illuminating the driver (Barr: 87-88; A 236-A237). Shields displayed, the officers approached the Pontiac on foot (Agugliaro: 16, 79, A84, A147). Barr noticed that defendant was slowly sliding his left hand off the steering wheel towards his lap and repeatedly turning his head around (Barr: 31, A 180). This aroused Barr’s suspicion and made him “nervous” (Barr: 31, 94; A 180, A243). Barr drew his firearm and “in a loud stern voice” directed defendant to put his hands on the wheel (Barr: 30-31, A179-A180). Defendant complied (Barr: 32, A181). The references are to the witness, type of proceeding, or filing, with original page4 designation, and to the corresponding page number in the Appendix. 8 Agugliaro also drew his weapon and ran to assist his partner (Agugliaro: 16-18, Barr: 32-33, 116; A84-A86, A181-A182, A265). Barr holstered his weapon, ordered defendant out of the vehicle (Agugliaro: 18; Barr: 33, 118; A86, A182, A267), opened the door, and grabbed defendant’s left hand (Barr: 33; A182). When defendant stepped out of the vehicle, the officers placed his hands on the roof of the car (Agugliaro: 18; A86). Barr frisked defendant’s outer garments and recovered a loaded .45 caliber Taurus handgun from his waistband (Agugliaro: 19; Barr 33, 142; A86, A182, A291). Defendant spontaneously blurted, “you don’t understand [my family and I have] a problem with somebody” (Barr: 34; A183); I am afraid” (Barr: 146; A295) and “I need it for protection” (Agugliaro: 19; Barr: 34; A 86, A183). Defendant’s handgun was a semi-automatic pistol fully loaded with six live bullets or “cartridges” – one was in the firing chamber and five remained in the magazine (Scaturro: 3-5, 8-9; Barr: 37; A152-A154, A157- A158, A186). The pistol was operable and had previously been discharged (Scaturro: 8-9; A157-A158). Defendant’s Case Sometime after 9:30 p.m. on Friday night, December 5, 2008, defendant was driving to a party in Queens (Defendant: 184-187, 208; A333- A334, A357) when he was pulled over by the police. Defendant briefly took 9 his hand off the steering wheel to lower the window and turned around to ask the approaching officer why he was being pulled over (Defendant: 192; A341). At gunpoint, Barr ordered defendant to put his hands back on the “fucking wheel” and keep them there. Defendant complied (Defendant: 191- 193; A340-A342). Barr then opened the car door and told defendant to get out (Defendant: 195, 214; A344, A363). With his partner’s assistance, Barr placed defendant’s hands on the roof of the car and searched him, finding nothing (Defendant: 196, 216; A345, A365). Barr also searched the Pontiac and found nothing (Defendant: 196, 205; A345, A354). The Pontiac belonged to defendant’s mother, MIRIAM ELLIOTT, who moved out of state in 2007 and left the car for defendant and his cousin to share (Elliott: 167-170, 172, 182; A316-A319, A321, A331). When defendant realized he was being charged with gun possession (Defendant: 224; A373), he told the police that the gun did not belong to him and “begged” them not to charge him with gun possession (Defendant: 199-200; A348-A349). Defendant never told the police that he or his cousin needed a gun for “protection” (Defendant: 224, 227; A373, A376). When one the officers asked defendant if he knew where to “get” a gun (Defendant: 199; A348), defendant stated that his cousin had been “assaulted” by a “guy with a gun” and defendant knew where that “guy” lived (Defendant: 200-201, 224-225; A349-A350, A373-A374). The gun Barr had did not belong to defendant. Defendant never owned or handled a gun, was not 10 carrying a gun that day, and did not reach for his waistband when pulled over by the police (Defendant: 193-194, 204, 210; A342-A343, A353, A359). Defendant’s Motion for a Trial Order of Dismissal Following the presentation of evidence, defendant moved to dismiss the indictment, claiming there was no evidence that he “intended” to use the pistol unlawfully against another as required to convict him of the top count of second-degree criminal possession of a weapon under Section 265(3) of the Penal Law. That count charged defendant with “knowingly possessing a loaded firearm . . . with the intent to use [it] unlawfully against another” (A 50). The court denied the motion, ruling that the evidence that defendant had a “fully loaded gun, one in the chamber, in [his] waistband,” was sufficient to establish the “intent to use” based on the legal “presumption” that a person who has a loaded operable gun intends to use it unlawfully (Proceedings: 233- 361-235; A382-A384). The Jury Charge In its final charge, the court instructed the jurors that they “must” accept the law as the court instructed them, “whether [they] agree[d] with the law or not” (Proceedings: 311; A460). The court stated that defendant was charged with Criminal Possession of a Weapon in the Second Degree, meaning the knowing possession of a loaded firearm with the intent to use it unlawfully against another. The court defined the elements of the crime, instructing that 11 “a person acts with intent to use a loaded firearm unlawfully against another when his conscious objective or purpose is to use that firearm unlawfully against another” (Proceedings: 329; A478). Significantly, the court instructed the jury, the “intent” element need not be proven and could be inferred. As the court explained to the jury, “possession by any person of any weapon is presumptive evidence of intent to use the same unlawfully against another” (Proceedings: 330; A330). In other words, if the jury decided that the People had “proven beyond a reasonable doubt that defendant possessed the firearm,” then the jury was “permitted, but not required, to infer from that fact that he [possessed the firearm] with the intent to use [it] unlawfully against another”(Proceedings: 330; A479). Defendant Consents to a Retrial After deliberations began, the last alternate juror was excused, the first alternate have been previously discharged for excessive tardiness (Proceedings: 240-241, 341-342; A389-A390, A490-A492). In each instance, defendant agreed that the juror should be discharged. Additionally, in consenting to the discharge of the second alternate, defendant agreed that if the jury at some later point “could not continue as a panel of twelve, the case would be retried” (Proceedings: 241, 342; A390, A492). The court addressed the defendant and his attorney individually, both of whom stated they understood and agreed to excusing the last alternate juror on that basis (Proceedings: 341-342; A490-A491). 12 Jury Deliberations, Deadlock, and Notes After deliberating about two and one-half hours the first day, the jury issued a deadlock note. With defendant’s consent, the court instructed the jurors to resume deliberations with a view towards reaching a verdict, trying to have an “open mind” to the views of others “without violating one’s own conscience or abandoning one’s own best judgment” (Proceedings: 341, 343- 347; A490, A492-A493). At the end of the day, the court directed jurors “to cease deliberations and not resume” until they were all “together [again] in the jury room” the following morning (Proceedings: 348, 359; A497, A508). Until then, the court instructed jurors not to “discuss the case amongst [themselves] or with anyone else” and “of course” to “report to [the court] any incident [in] which anybody discusses the case [in] your presence or the presence of any other juror” (Proceedings: 348-349; A497-A498). The following morning, the jury issued a note asking, among other things, whether “evidence” included defendant’s testimony. If so, the note stated, the jury needed to “hear [defendant] Smith’s [direct] testimony” (Proceedings: 350; A499). The court responded to the note and deliberations resumed, but within a short time, the court received another note (Proceedings: 354-356; A503-A505). This note was signed by Jurors 12 and 7 and asked to speak with the Judge about Juror 11 “coming in with a conversation he had 13 with a lawyer friend regarding hypothetical cases involving a gun” (Proceedings: 357; A506). Outside Legal Advice Leads to Juror Misconduct and a Mistrial The court interviewed the three jurors individually – the two signatories to the note and Juror 11 (Proceedings: 357-370; A506-A519). Juror 12, the first signatory on the note, stated that the first afternoon, the panel was focusing on whether the evidence showed “possession of a gun” (Proceedings: 362; A511). Her view was that the evidence showed there was a gun, but since “the point” of the case was “possession,” the question for the jury was whether defendant had the gun “on him” (Proceedings: 362; A511). In this regard, Juror 12 stated, although the officers had testified that the weapon was “on [defendant]”, the jury also had to consider “defendant’s contrary testimony” (Proceedings: 362-363; A511-A512). Juror 11 stated he “had doubts” about the case and had “to go home and think about it” (Proceedings: 362; A511). When deliberations resumed the following morning, the jurors were “still debating what is evidence,” what they should “base” their “verdict on,” and “how [they should] figure that out” (Proceedings: 359; A508). Juror 11 told the panel “all” that “matters” is whether defendant “had a gun . . . That’s all the jury needed to know to decide the case” (Proceedings: 359; A508). Juror 11 told the jury this advice came from lawyer friend whom he 14 had contacted after court ended the previous day to discuss “a hypothetical situation concerning a gun” (Proceedings: 359, 360; A508, A 509). Juror 12 stated she got “angry” and “clouded” (Proceedings: 359; A508), and that she and “other jurors” confronted Juror 11, stating they had “to go by what’s the evidence” (Proceedings: 359; A508). Juror 11 agreed, stating the question was, “was there a gun, was [defendant] in possession of a gun. . . and [was that] part of the evidence” (Proceedings: 360; A509). Juror 12 stated, “that’s not right because we have to go by the evidence” and suggested the jury should “ask the judge what is the evidence that we have to go by” (Proceedings: 360; A509). Juror 11 said that the advice he was dispensing was “exactly” the “same thing [that] the Judge [had] said” (Proceedings: 360; A509). After that, Juror 12 told the court, the issue “went around the table” and the jury decided to write a note to the court seeking clarification about “what is evidence and what isn’t” (Proceedings: 360, 361; A509, A510). Juror 12 recounted that when the court responded to the note, instructing the jury to consider “all the evidence, including the [defendant’s] testimony,” Juror 11 “nodded in approval” (Proceedings: 360, 361; A509, A510). Juror 12 was seated next to juror 11 and was particularly “upset” by that gesture (Proceedings: 361; A511). Back in the jury room, Juror 12 confronted Juror 11, stating, “look, I just want to excuse myself because I’m really upset about what 15 happened” (Proceedings: 361; A510). Juror 7 suggested sending a note to the court asking how to proceed. Another female juror told Juror 11, “look, you spoke to your friend” (Proceedings: 361; A510). Juror 11 asked that juror whether that would “affect” her, and she replied that it had not, but chided Juror 11 for having “shared” his outside information “with everybody” on the jury (Proceedings: 361; A510). Juror 11 disagreed, stating “he [did not] feel he did anything wrong” because the discussion with his friend was about a “hypothetical situation” (Proceedings: 362; A511). At that point, Juror 12 stated, “we just decided to call the guard and have . . . a discussion with [the court]” (Proceedings: 361; A510). Juror 12 told the court that these conversations occurred during deliberations, in the presence of all the jurors, and “everybody heard” them (Proceedings: 362; A511). Juror 12 told the court that Juror 11's excuse for talking to a lawyer – that he did not “feel he did anything wrong because it was a hypothetical” – made her “angry” (Proceedings: 359; A508) and “upset[]” (Proceedings: 361; A510) because as a juror he should have known better (Proceedings: 362; A511). As Juror 12 told the court, her view was if that if he had doubts, it was “good” for him to “go home and think about it” but he went too far by “talk[ing] . . . about it” at all, never mind “to a lawyer” (Proceedings: 362; A511). Defense counsel asked Juror 11 whether the outside attorney’s advice was that if the jury found there was a gun, that would be “the end of it” 16 (Proceedings: 362; A511). Juror 12 responded that was not her view, adding she “pretty much had made [her] decision” the previous afternoon, before hearing the outside advice, but since the jury was “deadlocked,” she decided to wait until the morning to see where deliberations were heading (Proceedings: 362; A511). Counsel for defendant then asked Juror 12 whether she felt she could “continue on and deliberate in this case” (Proceedings: 362; A511). Juror 12 responded that “she would be uncomfortable with Juror 11 remaining on the jury” but otherwise felt she could continue in the case (Proceedings: 362; A511). After excusing Juror 12 from chambers, the court stated that the record should “reflect . . . that [Juror 11] claims to have discussed the case with someone not on the jury who was a lawyer, and may have expressed justification that it’s okay because it was a hypothetical . . . In addition [Juror 12] at least to some extent convey[ed] that she’s now uncomfortable with5 [Juror 11]” (Proceedings: 364; A513). Next, the court interviewed Juror 7 (Proceedings: 364; A513), who explained that she co-signed the note because Juror 12 “was going to cry so I told her I would go with her” (Proceedings: 365-366; A514-A515). Juror 7 corroborated Juror 12's account, stating that Juror 11 told the other jurors that he had spoken to his “lawyer friend, hypothetically, about the case,” and his advice was that “the only thing that [the jurors] should focus on is whether As the People stated in their response to the petition, the minutes use the word betray5 here, but “convey” is more likely from the context. 17 [they] believe[d] that the gun was in the car or not” (Proceedings: 366; A515). Juror 7 told the court that a male juror agreed with Juror 11, and that a female juror stated she was “very uncomfortable” that Juror 11 “spoke to his lawyer friend even though it was hypothetical.” The unidentified female juror said “he shouldn’t have done that because none of us did that” (Proceedings: 366-367; A515-A516). In response to the court’s question whether “experiencing” the comments caused her any “unpleasantness or difficulties as a juror,” Juror 7 said “no, not for me” (Proceedings: 367; A516). After Juror 7 left chambers, the court stated, “it seems we have a basis [for] believing that [Juror 11] made the comments he made”(Proceedings: 367; A516). The court’s “first step” would be to voir dire Juror 11 to hear his “explanation” of events (Proceedings: 367; A516). After that, the court stated, it would get [counsel’s] “input of where you think we are going” and the court would “discuss” what it “intend[ed]” to do (A Proceedings: 368; A517). In chambers, Juror 11 initially claimed that he was “troubled” by the case, but that all he discussed with his attorney-friend was the law in “a hypothetical situation” (Proceedings: 368; A517). In response to the court’s further questioning, however, Juror 11 acknowledged there was “no doubt” that the conversation was about the case under deliberation, the attorney gave him “an answer” that was “relevant” to Juror 11's “feelings” about the case, 18 and he conveyed the attorney’s advice to the entire panel (Proceedings: 368, 369-370; A517, A518-A519). When the juror interviews were finished, the court asked the prosecutor for his opinion on next steps. The prosecutor responded, “I think it’s all over, Judge” (Proceedings: 370; A519). The court granted a fifteen minute recess to allow defendant to consult with his attorney about their response to Juror 11's misconduct (Proceedings: 370; A519). The court then heard the parties’ arguments. The prosecutor stated that Juror 11 had committed misconduct and should be discharged (Proceedings: 371; A520). Defense counsel agreed, adding, “it was clear this juror violated your instructions” by speaking with an attorney and “solicit[ing] advice as to really essential issues into [sic] this case” (Proceedings: 371-372; A520-A521). To that the court added, “and also disclosed that to the other jurors,” and defense counsel agreed (Proceedings: 372; A521). With the consent of all parties, the court stated it would discharge Juror 11 as “unfit to continue as a juror” and “discuss other issues afterwards” (Proceedings: 372; A521). In chambers, the court told Juror 11 he was “grossly unable” to continue as a juror, and that the court found it “beyond repair” that Juror 11 did not realize it was wrong to speak to an attorney and then use the “gimmick of calling it a hypothetical,” but then, “even more importantly” conveying “to other jurors what happened” (Proceedings: 372; A521). In castigating the juror 19 for conduct inconsistent with the oath he took, the court stated its overriding concern was “the affect” Juror 11 had on the trial (Proceedings: 372; A521). Following another recess – this one for twenty minutes – to allow the parties to consider “their final position on the degree to which [the trial could] continue” with eleven jurors, the People objected to going forward with eleven jurors, and stated it would not consent to that (Proceedings: 373; A522). Counsel for defendant asked to proceed with eleven jurors, claiming defendant had a right under the New York Constitution and the decision in People v Gajadhar, 9 N.Y.3d 438, to a jury trial of twelve jurors, eleven jurors, or no jurors (Proceedings: 373-374; A522-A523). Further, counsel contended, any “taint” resulting from Juror 11's misconduct had been “removed” by his discharge, and aside from the one juror who was “bothered . . . enough to speak to [the court],” none of the other jurors “indicated” that he or she was “upset or traumatized” by Juror 11's conduct (Proceedings: 374; A523). Counsel asserted that the application was being made “in good faith” and denied that defendant would secure any “procedural advantage or disadvantage” were it granted (Proceedings: 374; A523). The court disagreed, and denied the request to proceed with the panel of eleven jurors. After noting that both sides had agreed to the discharge of Juror 11 for misconduct, the court stated, “the issue for this court goes right to the heart of the integrity of the jury process in this case. The issue before this court goes beyond the usual question of whether or not there’s any reason 20 to believe that a jury could come to a decision within any reasonable period of time, but whether or not the very heart and integrity of the jury process has been compromised by the juror misconduct in this case” (Proceedings: 375- 376; A524-A525). The court concluded the record demonstrated that the juror’s conduct went “above and beyond” misconduct by “impart[ing]” his lawyer friend’s advice about the case “to the other deliberating jurors” (Proceedings: 376; A525). This, the court “reluctantly” ruled, “satisfied” the court that the “misconduct tainted the process” and “compromised” the “absolute integrity of the jury process” that was necessary to proceed with the trial (Proceedings: 376; A525). Additionally, the court denied defendant’s request to conduct any further inquiry of the panel (Proceedings: 375, 376; A524, A 525). The court stated it had “the ultimate responsibility” to insure the “integrity of this process” and declined to “speculate” further because it was “absolutely satisfied” that the very “heart” of that “integrity” of the jury had been “compromised” by what occurred in this case (Proceedings: 376-377; A525-A526). As the court later reiterated to the jury, the court was responsible for insuring that “any result in a trial” occurs without “the misconduct that occurred in this case” and that, “consistent with [its] responsibilities, . . . the action [it took here] was necessary” (Proceedings: 378; A527). The court adjourned defendant’s case for just over two months, until October 4, 2010, for the parties to contemplate a retrial (Proceedings: 378; A527). 21 The Article 78 Petition From July 22, 2010, the day trial court ordered the mistrial and retrial (Proceedings: 376-378; A525-A527), until January 23, 2013, the day defendant filed his Article 78 petition (Order to Show Cause; A509-A511), defendant’s retrial on the indictment was scheduled to commence in Queens County Supreme Court on numerous occasions (Petition ¶ 31; A13). The case was on the calendar at least once every thirty days, and on at least five of those occasions the People were ready to proceed with the retrial. Defendant continually requested adjournments but did not move to dismiss the indictment as barred by double jeopardy or pursue any other available legal remedy under the Criminal Procedure Law. In addition, defendant was not ready to proceed on at least four of the occasions on which the People were ready (QDA Answer, ¶¶ 25-28; A57-A59). On January 9, 2013, the fourth occasion on which the People were ready to proceed, defendant was also ready, and the court scheduled the retrial to commence the following week, on January 16, 2013. That day, the People were constrained to seek a short adjournment due to grave illness in a witness’s family. The trial was adjourned for one week, until January 24, 2013. That day, however, defendant again requested and was granted an adjournment of the retrial, this time based on the present Article 78 petition, filed in the Appellate Division the day before (QDA Answer ¶¶ 27-28; A58-A59). 22 The Second Department granted defendant’s petition and prohibited a retrial, ruling it would violate double jeopardy because the record did not establish manifest necessity for the trial court’s mistrial decision and voicing particular concern that the trial court failed to consider the alternative of continuing the trial with eleven jurors. Smith v. Brown, 105 A.D.3d 965. POINT ONE THE APPELLATE DIVISION ERRONEOUSLY GRANTED THE PETITION BECAUSE DEFENDANT WAIVED HIS DOUBLE JEOPARDY CLAIM BY CONSENTING TO A RETRIAL AND THE TRIAL COURT PROPERLY DECLINED TO PROCEED WITH ELEVEN JURORS AFTER THEY RECEIVED ERRONEOUS OUTSIDE LEGAL ADVICE ON A CRITICAL ISSUE IN THE CASE. The Appellate Division erred in barring defendant’s retrial. Defendant waived his double jeopardy claim by agreeing, first, that any loss of a deliberating juror would result in a retrial, and second, to the discharge of a deliberating juror. Moreover, contrary to the Appellate Division’s conclusion, the trial court fully considered defendant’s request to proceed with the remaining eleven jurors and properly declined to approve that request. The court acted well within its discretion when it concluded that the ends of justice would have not been served by continuing with eleven jurors, all of whom were tainted by a juror’s injection into the deliberations of erroneous outside legal advice on a key issue as to which the jury was already deadlocked. 23 Defendant’s contrary claim erroneously presupposes that discharging the unqualified juror cured the defect, the remaining eleven jurors comprised a fair and proper panel, and defendant had a right under People v. Gajadhar, 9 N.Y.3d 438, to proceed with eleven jurors. Defendant is wrong on all counts. He had no right to a jury of eleven, and as this Court’s decisions make clear, the trial court retained discretion to approve or deny such a request. The discharge of the juror did not cure the defect, as the juror had discussed the erroneous outside legal advice with the entire panel, tainting it. Moreover, the incident created a serious disruption in the jury room, creating angry confrontations and emotional exchanges. Perhaps most significantly, the jurors failed to report the outside influence for a considerable period of time, in contravention of the trial court’s express instructions. As a result, the trial court understandably feared that the taint could not be adequately eradicated from the deliberative process, whether by removal of Juror 11 or by further instructions. The trial court thus properly exercised its discretion in this regard. At the very least, defendant’s claims – that the trial should have proceeded with eleven juror, that the jurors should have been polled, and that a mistrial was unwarranted – present exceedingly close issues and are matters of the trial court’s discretion. As a result, petitioner cannot, as he must to succeed in an Article 78 proceeding, establish a clear legal right to relief. 24 An Article 78 proceeding in the nature of prohibition provides relief in a very narrow set of circumstances and has exacting requirements. To be successful, the petition must still establish that the prosecutor is proceeding or threatening to proceed without or in excess of its jurisdiction, that defendant has a “clear” legal right to the relief sought, and that, in the court's discretion, the remedy is warranted. See, e.g. Holtzman v. Goldman, 71 N.Y.2d 564, 569 (1988); Schumer v. Holzman, 60 N.Y.2d 46, 51-52 (1983); Hall v. Potoker, 49 N.Y.2d 501, 505 (1980). Here, because defendant cannot make the requisite showing of a “clear legal right to the relief sought,” the Appellate Division erred in granting defendant relief. Because the circumstances under which a trial properly proceeds with an eleven-juror panel is an evolving area of the law, and because the circumstances here require a careful weighing of the impairment of the deliberative process, defendant did not, nor could he, demonstrate any clear legal right to a trial by a panel of eleven, nor that the trial court abridged any such right when it determined, in its discretion, that the more appropriate avenue was a mistrial and retrial, especially given defendant’s acquiescence in all of the events leading inevitably to that result. E.g. People v. Gajadhar, 9 N.Y.3d 438; Matter of Marte v. Berkman, 16 N.Y.3d 874 (2010); Matter of Rivera v. Firetog, 11 N.Y.3d 501, 507 (2008). 25 For all these reasons, and for the reasons that follow, the Appellate Division erred in granting the petition and its order should be reversed. A. Defendant Consented to a Retrial and Waived Any Claim That It Subjected Him to Double Jeopardy or Violated His “Right” to Proceed with a Panel of Eleven. By expressly consenting, first, to a retrial upon the future loss of any additional juror, and, then, to the discharge of a juror for gross misconduct, defendant waived any claim that the retrial subjected him to double jeopardy. That waiver precludes defendant from raising a double jeopardy claim in this proceeding and the petition should have been denied. The last alternate was excused with the understanding that if the jury were unable to proceed as a panel of twelve, there would be a retrial. Defendant expressly consented to this arrangement. Subsequently, Juror 11 was discharged for gross misconduct, also with defendant’s consent. The court’s retrial order upon the discharge of the errant juror was wholly consistent with defendant’s consents and defendant relinquished any contrary claim. A defendant may waive a claim of double jeopardy by either expressly or impliedly consenting to a retrial. See People v. McFadden, 20 N.Y.3d 620, 624-625 (2013)(implied consent); Matter of Marte v. Berkman, 9 N.Y.3d 438 (2010)(same); People v. Echevarria, 6 N.Y.3d 89, 92-93 (2005)(same). Thus, defendant’s consent may be inferred from circumstances 26 leading up to dismissal of the jury. For example, in People v. McFadden, decided within the past year, this Court held that a defendant impliedly consented to a retrial when the trial court stated that acceptance of a partial verdict would result in a retrial on the remaining counts and defendant acquiesced in the court’s statement. Id., 20 N.Y.3d at 624-625; accord People v. Echevarria, 6 N.Y.3d at 92-93 (defendant’s unequivocal actions prior to partial verdict waived double jeopardy protections). Here, defendant did at least as much as the defendant in McFadden, thus relinquishing his later contention that a retrial was impermissible. Defendant consented to a retrial when the second alternate was dismissed and again when a deliberating juror was discharged for misconduct. The first time defendant consented occurred in connection with the dismissal of the second alternate. The court asked defendant for his position and defense counsel responded, “ We can [let] the [last] alternate go . . . on my client’s consent” (Proceedings: 341; A490). The court asked defendant, “[Do you] understand [that] letting the alternate go . . . means if the jury cannot continue as a jury of 12, the case will be retried?” (Proceedings: 341; A490). Counsel replied that he did. The court also secured defendant’s personal assurance, directly asking defendant if he wanted to excuse the alternate knowing there we be a retrial if the jury of twelve could not continue as a whole. Defendant said he did (Proceedings: 341; A490). 27 Subsequently, counsel learned that Juror 11 had shared erroneous outside legal advice with the panel, and the advice bore on a key issue over which the jury was deadlocked. The court asked both sides how they wanted to proceed. The prosecutor stated Juror 11 had committed misconduct and should be discharged. Defense counsel agreed, stating “it was clear” Juror 11 committed misconduct when he solicited and shared with the panel outside advice “as to really essential issues into [sic] this case” (Proceedings: 372; A521). The court stated, “then I’m going to . . . discharge him as he’s unfit to serve as a juror,” and asked defendant whether he understood that. Defendant stated that he did (Proceedings: 372; A521). The court stated, I’m going to do that now and then we will discuss other issues afterwards” (Proceedings: 372; A521). Surely defendant understood the retrial consequences of consenting to the discharge of Juror 11. Having already agreed that a retrial would ensue if a deliberating juror became unavailable, defendant necessarily knew that the discharge of Juror 11 would mean he would be retried on the same charges. E.g. McFadden, 20 N.Y.3d at 624-625. Indeed, these events took place no more than twenty-four hours apart, and counsel could not have failed to understand the consequences of his own representations to the court. Thus, defendant is barred from now complaining that the retrial unconstitutionally subjected him to double jeopardy or deprived him of any “right” to proceed with a jury of eleven. 28 The circumstances here are thus even more compelling than McFadden, in which mere acquiescence was deemed implied consent. In McFadden, the trial court stated it would take a partial verdict requiring a retrial on the remaining counts and defendant did not object to the court’s statement or otherwise dispute it. Here, both defendant and counsel expressly consented to the court’s statement that defendant would be retried in the event of the loss of another juror, and counsel similarly consented to the discharge of the juror. The express consent in this case far exceeds the circumstances of the implied consent in McFadden. This Court’s decision in Marte v. Berkman, 9 N.Y.3d 438, compels a similar conclusion. In Marte, defendant’s “implied consent barred him from securing relief from the double jeopardy of a mistrial” because when the court “informed defense counsel in advance [that it planned to take a partial verdict], . . . defense counsel stood mute.” Id., 16 N.Y.3d at 875. Defendant’s express consent in this case was far more compelling than defendant’s lack of objection in Marte. Thus, defendant’s express, specific consent to a retrial here precluded review of his subsequent double jeopardy claim in the Appellate Division. Nor did the fact that defense counsel later perceived a strategic advantage to reneging on his prior representations require the court to ignore his express consent less than twenty-four hours earlier, rendered after the jury had already returned its first deadlock note (Proceedings: 341-342; A490- 29 A491). Indeed, defendant provided no reason whatsoever for this abrupt about-face, nor is any compelling reason evident from the record that would have required the court to release defendant from his prior express consent to retrial in the event that an additional juror was discharged. To the contrary, the record, including defendant’s own statements, suggests that defendant had only personal strategic grounds for changing his mind (Verified Petition ¶¶ 51-52; A22). The discharged juror, number 11, was quite evidently ready to convict – believing that the only issue was whether defendant physically possessed the weapon and ignoring the issue of whether he had the intent to possess the weapon unlawfully. Counsel, having relieved the jury of a strong advocate of conviction, likely perceived that the hand of the defense had been strengthened by the move. Moreover, Juror 12, who was “angry” and deeply offended by Juror 11, stated that she disagreed with Juror 11's view on the law and had, as defendant observes, already “made [her] decision” the previous afternoon (Proceedings: 363; Verified Petition ¶¶ 51-52; A512, A22). Based on this colloquy, counsel could have counted Juror 12 as a vote for acquittal and concluded that any further deliberations would result either in a hung jury or possible acquittal. Indeed, defendant’s petition expressly highlights the strategic advantages he perceived in going forward with eleven jurors (Verified Petition ¶¶ 51-52; A22). Defendant characterizes the panel’s conduct as “encouraging” to the defense – noting the request for readback of defendant’s direct testimony, but not his cross-examination testimony, the discussion in the 30 jury room about whether or not defendant possessed the gun, and particularly Juror 12's apparent belief in defendant’s innocence. In this regard, defendant observes with glee that Juror 12 had “formed her own conclusion” before being exposed to Juror 11's view of the law (Verified Petition ¶¶ 51-52; A22). Defendant thus had little to lose by attempting to retract his consent and seeking a continuation of deliberations and, potentially, much to gain if the jury ended up acquitting. But the fact that defendant would have a strategic advantage in continuing the trial provided the court with no good reason to allow counsel and defendant to renege on their prior representations. Accordingly, the court could hold defendant and counsel to their prior consent. Because defendant was barred from raising his double jeopardy claim, he cannot establish a “clear legal right” to Article 78 relief and the order of prohibition should be reversed. B. Defendant Had No Right to Proceed With Eleven Jurors and the Trial Court Had Discretion to Deny That Request. None of this Court’s decisions, including People v. Gajadhar, 9 N.Y.3d 438, have ever conferred upon a defendant a right to proceed with eleven jurors upon his request. At most, Gajadhar authorizes such an extraordinary procedure in the discretion of, and with the approval of, the trial court. It in no way compels a trial court to proceed with eleven jurors merely because the defendant expresses a desire to do so. Indeed, this case presents an excellent example of why the trial court is vested with discretion to decide whether to proceed with a panel of less than twelve. Here, the issue that 31 resulted in the removal of the twelfth juror tainted the entire jury panel, as the discharged juror injected erroneous outside legal advice on the central issue in the case directly into the jury’s deliberations. Because proceeding with a jury of eleven may not be appropriate for this and a host of other reasons, the trial court retains the discretion to withhold its approval of that procedure. In fact, far from recognizing a “clear legal right” to a trial by a jury of eleven – essential for defendant to prevail in his Article 78 proceeding – both the state constitution and Gajadhar itself reinforce the longstanding position that the waiver of a jury of twelve is contingent upon the trial court’s approval. The state constitution specifies that a jury trial may be waived “before and with the approval of a judge or justice of a court” and Gajadhar6 requires that a waiver of a jury of twelve be undertaken “only with the approval of the trial judge.” 9 N.Y.3d at 447. Defendant ignores the requirement of the trial court’s approval of a jury of less than twelve and transmogrifies the ability to proceed with eleven jurors in a proper case as authorized by Gajadhar into a personal right to a jury of eleven when the defendant so desires. No such conclusion is necessary or warranted. In Gajadhar, a juror was discharged for personal reasons and no alternate jurors remained. Defendant elected to proceed with the remaining Article I, section 2 reads, in relevant part, as follows: “A jury trial may be waived6 by the defendant in all criminal cases . . .by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense. The legislature may enact laws, not inconsistent herewith, governing the form, content, manner and time of presentation of the instrument effectuating such waiver” (N.Y. Const, art I, § 2). 32 panel of eleven and executed a written waiver of his constitutional right to a trial by a jury of twelve, all of which was approved by the trial court. On appeal, the defendant claimed the eleven-juror panel was unconstitutional, citing Cancemi v. People, 18 N.Y. 128 (1858). The Court disagreed and held the defendant to his agreement. In the Cancemi decision, the Court held that a defendant in a criminal case could not consent to a panel of less than twelve jurors because it was not permitted by the constitution. A subsequent constitutional amendment, approved in 1938, allowed a criminal defendant to waive the right to a jury trial if the waiver was in writing and approved by the court. Art. 1, sec. 2, N.Y. Constitution. A later statutory enactment clarified that the waiver could occur mid-deliberations, thus permitting the substitution of an alternate juror if a deliberating juror is discharged. See C.P.L. § 280.10. The Gadjahar Court held that these intervening legislative acts rendered the Cancemi holding obsolete. Indeed, in its opinions between Cancemi and Gajadhar, the Court had already determined that a defendant could waive the constitutional right to a jury trial, as well as the “inclusory” right to a jury of twelve. People v. Page, 88 N.Y.2d 1 (1996); People v. Ryan, 19 N.Y.2d 100 (1966). In those intervening cases, the attempted waivers were invalid not because of any constitutional prohibition, but because the waivers were not in writing. As the Page Court emphasized, “strict compliance” with article I, section 2 of the N. 33 Y. Constitution “was essential to effectuate a valid waiver” of the constitutional right to a trial by a jury of twelve. Page, 88 N.Y. 2d at 10. When the issue of an eleven member panel reached the Court again in 2007, the reasoning of Ryan and Page – and not Cancemi – controlled. And because the Gajadhar waiver conformed with constitutional requisites, including the approval of the trial court, there was no “constitutional impediment” to the continuation of deliberations by eleven. Id. at 446. As the Gajadhar Court emphatically stated, “Of course, the constitution authorizes waiver only with the approval of the trial judge” id. at 447, leaving no doubt that a defendant may not unilaterally waive a jury panel of twelve, and any attempted waiver is invalid without the trial court’s approval. Thus, Gajadhar, far from creating a right to a jury of eleven that the trial court has no authority to preclude, reinforces the principle that the waiver of the constitutional protection is valid only with the court’s approval. The decision itself, mirroring the state constitutional prerequisite, specifically so states. Even more specifically, the Gajadhar court warned against attempts by the defense to use the waiver as a “strategem to procure an otherwise impermissible procedural advantage." 9 N.Y.3d at 447, quoting People v. Duchin, 12 N.Y.2d 351, 353 (1963). Where such manipulation is attempted, the Gajadhar opinion itself expressly encourages the trial court to reject a defendant’s request. Defendant’s denial of any “procedural advantage” to his application notwithstanding (Proceedings: 374; A523), that is precisely what 34 defendant stood to gain and precisely the sort of strategem that Gajadhar and Duchin warn the trial court to guard against. The trial court sensed that an attempted manipulation was afoot and acted wisely in declaring a mistrial to protect the integrity of the jury process from this sort of gamesmanship. Gajadhar also buttresses the long-standing tenet that the constitutional requirements for a valid waiver, including the approval of the trial court, must be jealously guarded and strictly enforced. People ex rel. Rohrlich v. Follette, 20 N.Y.2d 297 (1967); People v. Ryan, 19 N.Y.2d 100. Indeed, this Court has been “scrupulous” in enforcing compliance with the waiver provisions when a defendant seeks to waive the right to a trial by jury or other fundamental constitutional rights, most recently, the attempted waiver of the right to counsel. E.g. People v. Wingate, 17 N.Y.3d 469 (2011)(court did not fulfill its responsibility to make a “searching inquiry” before allowing the defendant to waive the right to counsel). The requirement of the trial court’s approval of the waiver, and the retention of discretion in the trial court to deny the waiver, also requires strict adherence. Moreover, the discretion afforded to the trial court is essential to maintain the integrity of the jury trial process. In determining whether to approve a defendant’s request to waive the right to a trial by a jury of twelve, the lodestar is the ends of justice. Thus, a trial court properly withholds its approval when presented with a “compelling ground arising out of the attainment of the ends of justice.” People ex rel. Rohrlich v. Follette, 20 N.Y. 35 2d 297, 301 (1967), citing People v. Duchin, 16 A.D. 2d 483, 485 (1962), affirmed, 12 N.Y. 2d 351 (1963). If the trial court determines that those ends are thwarted, acceptance of the jury trial waiver would be inimical to the proper administration of justice. Furthermore, the need for trial court discretion to disapprove requests for less than eleven jurors is amply demonstrated by this case. This is so in two respects. First, the trial court’s discretionary authority guards against a defendant’s attempt to abuse the waiver option for impermissible strategic purposes. Here, the trial court had ample ground to deny defendant’s request based on his prior consent to a mistrial and his abrupt about-face based, quite evidently, on strategic grounds. As defendant had consented to a retrial if the panel could not continue as twelve, defendant’s contradictory request, made less than twenty-four hours later, must be seen for what it was – an attempt to manipulate the waiver provision to gain a tactical advantage that he perceived with the jury as then constituted. This is precisely the sort of “strategem [designed] to procure an otherwise impermissible procedural advantage" that the court’s approval of a jury waiver is designed to prevent. People v. Gajadhar, 9 N.Y.3d at 447, quoting People v. Duchin, 12 N.Y.2d at 352, 353; People v. Diaz, 10 A.D.2d 80, affirmed, 8 N. Y. 2d 1061 (1960); People ex rel. Rohrlich v. Follette, 20 N.Y. 2d at 301 (co-defendant seeks to waive jury trial to avoid joint trial after severance denied). Having successfully purged the panel of a juror who believed defendant’s intent to use 36 the weapon unlawfully should be automatically presumed from the evidence that he possessed a gun, defendant immediately attempted to withdraw his prior consent to a retrial, complaining that he had a right to proceed with the remaining jurors. Significantly, several of the jurors disagreed with the outsider’s advice about the presumption, and at least one of them – Juror 12 – openly credited defendant’s testimony that he was not carrying a weapon. As this case exemplifies, the trial court’s discretionary approval authority guards against this type of disingenuous attempt to manipulate the jury trial process. Second, the trial court’s discretionary authority allows the court to evaluate objectively the impact that a discharged juror’s misconduct has on the remaining jurors. That evaluation was critical in this case because the issue compelling the discharge of the twelfth juror was not confined to that juror but infected the entire jury panel and, critically, did so during the deliberative process itself. Indeed, Juror 11 had imparted key erroneous legal advice to all of the deliberating jurors after the first day of deliberations and after a jury deadlock note, and the trial court needed the latitude to consider whether that outside influence could be erased from the jurors’ minds and whether the proper functioning of the deliberative process could be restored. Under defendant’s reading of Gajadhar, the trial court had no discretion to consider those factors and make those critical judgment calls. Such a conclusion would be both bad law and dangerous policy. 37 The taint of the entire jury panel here, moreover, provides a critical distinction between this case and Gajadhar, in which a jury of eleven was permitted. In Gajadhar, the discharged juror had fallen ill and been hospitalized, which precluded his continued participation in the deliberations. The events leading up to the discharge in no way tainted or otherwise affected the remaining jurors. Here, by contrast, Juror 11 was discharged for directly injecting an outside influence into the jury deliberations on a highly disputed issue and every juror was subjected to this information. While the trial court in Gajadhar had no reason to believe that the ill juror’s discharge would affect the deliberative process, the trial court in this case knew that other jurors had been tainted, that the events leading up to the discharge had caused a considerable disruption in the jury room, and had ample reason to fear that the outside information could not be erased from the jurors’ minds. Defendant’s reading of Gajadhar would similarly lead to wholly unacceptable results – results that this Court could not have contemplated in Gajadhar itself. Under defendant’s view, the ability to waive a jury trial would not only allow, but would require a court to proceed no matter now many members of the jury had been discharged and no matter how far below eleven the jury was reduced. A jury of ten, six, or even three would logically be compelled by defendant’s position and the trial court could not prevent the size of the jury from being reduced to a farcically small number. This Court in Gajadhar did not approve, and certainly did not intend to compel at 38 defendant’s unilateral request, juries of such small size. Moreover, nothing in Gajadhar suggests that this Court intended to cede to the defense the control of the determination of how many jurors are necessary or sufficient to form a proper jury. Defendant’s interpretation of Gajadhar is simply not supported by that decision’s text or its intent. In sum, contrary to defendant’s claim and the Appellate Divison’s suggestion, Gadjahar does not grant defendant a right, and certainly not a “clear” legal right, to a trial by an eleven-member jury panel. Here, at best there was an attempted waiver of the twelve-juror panel, and without the court’s approval, all defendant had was an unenforceable election. The Appellate Division’s decision should be reversed and the People should be permitted to retry defendant on the indictment. C. The Trial Court Acted Well Within Its Discretion in Concluding that a Trial By a Jury of Eleven Was Not Feasible and That A Mistrial Was Manifestly Necessary After a Deliberating Juror Shared Erroneous Outside Legal Advice with the Entire Deadlocked Panel On A Critical Issue in the Case. The court properly determined that a mistrial was manifestly necessary after a juror engaged in gross misconduct when he shared erroneous outside legal advice on a critical issue with the entire jury panel during the deliberations. Because the mistrial declaration was proper, no double jeopardy violation occurred. Moreover, contrary to the decision of the Appellate Division, the court considered and acted well within its discretion when it considered and rejected the alternative of proceeding with a jury of eleven. 39 A retrial is not barred by double jeopardy when a mistrial is declared with defendant’s consent, due to manifest necessity, or because continuing with the first trial would defeat the ends of public justice. Suarez v. Byrne, 10 N.Y.3d 523 (2008); Matter of Davis v. Brown, 87 N.Y.2d 626, 630 (1996); People v. Ferguson, 67 N.Y.2d 383, 388 (1986); 9 Wheat [22 US] at 580. Indeed, by statute, the court “must,” on its own motion, declare a mistrial and order a new trial “when it is physically impossible to proceed with the trial in conformity with the law.” C.P.L. § 280.10(3); see Matter of Grant v. Kriendler, 162 A.D.2d 531 (2d Dept. 1990). Here, the trial court declared a mistrial in conformity with these principles and the Appellate Division failed to accord the trial judge’s determination the high degree of respect it deserves. Where the partiality of the jury is concerned, the decision whether a mistrial is necessary is “often based on subtle indications of discontent, not always apparent on the cold face of the record.” Enright v. Siedecki, 59 N.Y.2d at 201, citing People v. Michael, 48 N.Y.2d 1, 10 (1979). In such instances, the trial judge, “better than any other” can “detect the ambience of partiality.”Enright v. Siedecki, 59 N.Y.2d at 201, citing People v. Michael, 48 N.Y.2d at 10. Because of the trial court’s unique perspective, when the mistrial is based on its “evaluation of the likelihood that the impartiality of one or more jurors may have been affected by . . . improper comment’ . . . ‘the highest degree of respect’” is required. 40 Hall v. Potoker, 49 N.Y.2d at 506 citing Arizona v. Washington , 434 U.S. 497, 511 (1977); see also Enright v. Siedlecki, 59 N.Y.2d 195 (1983). Here, the taint to the panel of eleven fully justified the declaration of a mistrial, in the trial court’s discretion. Indeed, key aspects of the way in which the advice was delivered and the reaction to it made the court understandably highly concerned that the integrity of the jury process had been compromised and that the incident could not be erased from the juror’s minds. First, Juror 11, far from keeping the extraneous outside legal advice of his attorney-friend to himself or sharing it only with one or two colleagues on the jury, announced the advice in front of each and every one of the deliberating jurors. There was thus no question as to which or how many jurors were subjected to the advice; they all were. Nor was the advice tendered as an interesting aside or tentative conclusion. Juror 11 pronounced the lawyer’s advice in authoritative unqualified terms, as if it were unchallengeable, and later concluded in similar terms, before all of the jurors, that this was precisely what the trial court had told them in its response to their note. Thus, not a single juror was shielded from the outside legal advice. Second, the advice was clearly intended to influence the deliberations. At the point the legal advice was introduced, the jury had already sent out one deadlock note. Juror 11 had indicated at that time that he had doubts about the case but that, after consulting with his lawyer-friend, he had 41 resolved the issue. Juror 11 thus unquestionably shared the advice in an attempt to sway the other jurors as well. Third, the advice bore directly on what was the critical issue in the case – whether the people could prove that defendant possessed the gun with the intent to use it unlawfully by mere possession of the weapon itself. This had been the basis for counsel’s motion for a trial order of dismissal at the end of the evidence (Proceedings: 234-235; A382-A383) and had been raised by the People in summation (People’s Summation: 308; A457). Other jurors appeared concerned about the same issue, and, indeed, the facts admitted of little else in the way of an issue for the jury to discuss. Because of the centrality of the advice to the key issue in the case, the ability of the jurors to simply disregard the issue was seriously in doubt. Fourth, the introduction of this outside information into the deliberations caused a considerable disruption in the jury room. After Juror 11 conveyed the outside legal advice, Juror 12 became “angry” and “clouded.” She confronted Juror 11, stating that the jurors had to go by the evidence. Juror 7 described Juror 12 as about to cry over the incident, and, after what she perceived as further provocative conduct during the court’s response to a note, angrily confronted Juror 11 back in the jury room. Moreover, all twelve jurors were forced to weigh in on this issue, as the jury “went around the table” openly discussing the issue in the room. Still further, as a result of the episode, three jurors were called out to the court to explain what was occurring and 42 Juror 11 was eventually discharged. All of the angry exchanges over the issue, as well as the full participation around the table of every juror, made it highly unlikely that the issue could be easily discarded and forgotten in the minds of the remaining jurors. Fifth, despite the disruption in the deliberative process caused by the outside legal information, the jurors continued to deliberate without reporting the outside influence for some time. Indeed, the jury discussed the outside advice at length, and then issued a jury note questioning what qualified as evidence, without telling the court that they were subject to outside legal information that had not delivered by the court. And the jury did so despite the court’s clear admonition at the end of the first day of deliberations that the jurors were not to discuss the case in any way with outsiders and should report any attempt to do so. Despite all this, it was only after the court responded to the jury note that the jurors eventually decided to “call the guard” and inform the court of what was happening in the jury room. Moreover, because the court told all of the jurors to report any outside contact to the court, each of the jurors had outright ignored the court’s admonitions and violated their oaths as jurors. At the very least, the jurors’ failure to heed this admonition must have given the court pause, causing it to think that even if it gave the remaining eleven jurors instructions in an attempt to right the deliberative process, there was a substantial possibility, if not probability, that the jurors would be unable to follow those instructions. 43 Sixth, the trial court was aware that a guilty verdict by the infected panel could have been reversed on appeal based on the substantial undue influence brought to bear on each and every deliberating juror and the prejudice to the jury process, particularly given the centrality of the issue upon which the outside legal advice was rendered. The trial court, mindful of appellate review and the need to preserve the integrity of the deliberative process, acted providently in declining to build reversible error into the case. See, e.g., People v. Tinsley, 58 N.Y.2d 990 (1983); Enright v. Siedlecki, 59 N.Y.2d 195; Smith v. Marrus, 133 A.D.3d 708 (2d Dept. 2006 ); People v. Toland, 2 A.D.3d 1053 (3d Dept. 2003); Mikel v. Mark, 249 A.D.2d 993 (4th Dept. 1998). In short, the facts available to the trial court indisputably showed that every single juror heard the outside advice and, based on the court’s first- hand observations of the jury and its knowledge of the ruckus in the jury room, it providently determined that the taint, even if it could be addressed, could not be erased from every juror’s mind. Indeed, even if there existed a substantial probability that the taint would remain in one juror’s assessment of the case, the court could exercise its discretion to conclude that the trial could not continue. Moreover, the record shows that the trial court assessed the situation and acted for all the right reasons. After examining the two jurors who wrote the note and the offending juror, the court stated, “the issue for this 44 court goes right to the heart of the integrity of the jury process in this case. The issue before this court goes beyond the usual question of whether or not there’s any reason to believe that a jury could come to a decision within any reasonable period of time, but whether or not the very heart and integrity of the jury process has been compromised by the juror misconduct in this case” (Proceedings: 375-376; A524-A525). Based on this conduct, the court “reluctantly” ruled that it was “satisfied” that the “misconduct tainted the process” and “compromised” the “absolute integrity of the jury process” that was necessary to proceed with the trial (Proceedings: 376; A525). Additionally, the court denied defendant’s request to conduct any further inquiry of the panel (Proceedings: 375-376; A524-A525). The court stated it had the “the ultimate responsibility” to insure the “integrity of this process” and declined to “speculate” further because it was “absolutely satisfied” that the very “heart” of that “integrity” of the jury had been “compromised” by what occurred in this case (Proceedings: 376-377; A525-A526). As the court later reiterated to the jury, the court was responsible for insuring that “any result in a trial” occurs without “the misconduct that occurred in this case” and that, “consistent with [its] responsibilities, . . . the action [it took here] was necessary” (Proceedings: 378; A527). Thus, and contrary to the Appellate Division’s opinion, the trial court considered alternate remedies before concluding that a mistrial was necessary. After discharging juror 11 for misconduct, and a short recess, the 45 court heard each party’s “position on going forward with 11 jurors” (Proceedings: 373; A522). The People objected and stated, “We would not consent” (Proceedings: 373; A522). Defendant asked to proceed with a panel of eleven, claiming he had the right under Gadjahar, 9 N.Y.3d 438 (2007), to proceed with “a trial of 11 jurors, of 12 jurors, or no jurors” (Proceedings: 374; A523). The court denied the application, holding the “integrity” of the “jury process” had been unduly “compromised” and”tainted,” the removal of Juror 11 did not cure the taint, and a mistrial was required (Proceedings: 375-376; A 524-A525). Defense counsel then attempted to supplement his prior request to proceed with eleven jurors, asking the court to “do an inquiry of the panel” before granting a mistrial (Proceedings: 376; A525). The court “denied” that request, referring counsel to the court’s earlier comments, and reiterating that the court had “decided that the absolute integrity of the jury process has been compromised” (Proceedings: 377; A 526). Indeed, as the court had already interviewed three jurors, and observed all of the jurors first-hand, no further inquiry was required as it would not have remedied the overarching concern regarding the jury process or the remaining jurors’ ability to follow instructions. Moreover, the court was understandably not swayed by the protestations of some that they were not upset by what juror eleven said, or that they could have continued deliberating fairly without him. Given the obvious taint to the sanctity of the jury process as a result of the gross misconduct, the trial court was constrained to conclude that continuing the trial would have 46 defeated the ends of justice and a mistrial was manifestly necessary. See, e.g. Enright v. Siedlicki, 59 N.Y.2d at 197; Hall v. Potoker, 49 N.Y.2d at 503. All of these interim steps leading to the necessity of a mistrial – interviewing three jurors, discharging the offending juror, and declining to proceed with the tainted panel of eleven or poll them – served to protect the public interest in the fundamental sanctity of the jury process. Enright v. Siedlicki, 59 N.Y.2d at 202. Indeed, in Enright the trial court declared a mistrial without any voir dire of the affected jurors at all and that was considered adequate. Given that the purpose of considering alternatives to a mistrial is to ensure that the court has enough information before it determines that a mistrial is necessary, the court acted prudently here. See, e.g., United States v. Jorn, 400 U.S. 470, 487 (1970); Hall v. Potoker, 49 N.Y.2d at 501, 505. The court rendered its final decision only after a thorough voir dire of three jurors revealing flagrant misconduct and a significant delay in reporting it, the consideration of alternatives to a mistrial, and two recesses. Seen through the spectrum of the trial court’s unique first-hand perspective on the jurors, these measured steps leave no doubt that the court carefully reviewed the facts before declaring a mistrial. Indeed, under analogous and less serious circumstances than those presented here, New York courts have held that a mistrial was warranted and declined to prohibit a retrial based on double jeopardy. See, e.g. People v. 47 Tinsley, 58 N.Y.2d 990, 992 (1983); People v. Garcia, 215 A.D.2d 246 (1st Dept. 1995); see also Simmons v. United States, 142 U.S. 148; People v. Brooks, 50 A.D.2d 319, 322 (2d Dept. 1975). For instance, in People v. Tinsley, 58 N.Y.2d 990, the defendant was not unconstitutionally exposed to double jeopardy when the trial court, sua sponte, declared a mistrial after a juror absented himself from the rest of the sequestered jury. The trial court, after learning that the juror had disappeared overnight, secured his return, and interviewed the juror in the presence of both counsel. The juror explained that the deliberations had given him an upset stomach and he did not think the lay jurors could resolve the issues without an adviser knowledgeable in the law, adding “[I] just feel I cannot be fair to the person being judged.” And because no alternates were available after the court discharged the “grossly unqualified” juror, the court was required to declare a mistrial. This Court ruled that under these “unusual circumstances,” the trial court did not err in declaring a mistrial “on the ground of manifest necessity” and in accordance with statute. Tinsely, 58 N.Y.2d at 992-993, citing People v. Michael, 48 N.Y.2d 1, 9 and C.P.L. § 280.10(3). The Tinsely decision underscores the primacy of the court’s discretion in determining the proper course for the trial after a juror is lost. And even though that case pre-dates Gajadhar, so a panel of eleven had not yet been judicially approved, there were other steps the trial court could have taken – in particular consulting with counsel – but did not. Nevertheless, the Court 48 held, “the failure of the trial court to consult further with counsel prior to the declaration of mistrial [did not] vitiate the propriety of such declaration.” Tinsely, 58 N.Y.2d at 992-993. Rather, the trial court was justified in concluding that “there was no acceptable alternative to a mistrial.” Tinsely, 58 N.Y.2d at 992. The same holds true here. Because the trial court providently determined that a mistrial was the only viable course, double jeopardy does not bar retrial of the indictment, and the Appellate Division erred in prohibiting it. See, e.g. Enright v Siedlicki, 59 N.Y.2d at 197(reversing Appellate Division order prohibiting retrial as it was properly declared by trial judge due to manifest necessity of mistrial); Hall v. Potoker, 49 N.Y.2d at 503 (affirming Appellate Division’s order denying prohibition of retrial declared by trial judge due to manifest necessity); accord Matter of Davis v. Brown, 87 N.Y.2d 626 (1996); People v. Buford, 69 N.Y.2d 290, 297-298 (1987). Moreover, and, again, contrary to the Appellate Division’s holding, the Court’s decision in Gajadhar, upholding as constitutional a jury of eleven, does not necessitate greater scrutiny of a trial court’s mistrial determination. Certainly, pre-Gajadhar, reviewing courts had little trouble finding manifest necessity upon the type of juror disqualification that occurred here. E.g. Simmons v United States, 142 U.S. 148; People v. Brooks, 50 A.D.2d at 322; People v. Tinsley, 58 N.Y.2d at 992; People v. Garcia, 215 A.D.2d 246. And nothing in the Court’s decisions in the wake of Gadjahar 49 signal any weakening at all of the trial court’s discretionary authority to insure the integrity of the jury trial process and declare a mistrial when warranted. To the contrary, in opinion after opinion, the Court credits the trial court’s unique perspective as overseer of the jury and best situated to determine whether or not a mistrial is manifestly necessary, even if it means reversing the Appellate Division. E.g. People v. Mejias, 21 N.Y.3d 73, 80 (2013), Matter of Marte v. Berkman, 16 N.Y.3d 874, People v. Wells, 15 N.Y.3d 927, 928, 932 (2010); Matter of Rivera v. Firetog, 11 N.Y.3d 501, 507 (2008), People v. McFadden, 20 N.Y.3d at 624-625. At the most, Gajadhar potentially provides a court with another less drastic alternative to a mistrial to consider – polling the panel and curative instructions have always been available – upon defendant’s request. But where, as here, the entire panel is demonstrably prejudiced by outside legal advice, the trial court providently determined an eleven member panel was not a solution at all and a mistrial was required. Finally, even assuming that it could be said that the trial court could have exercised its discretion differently, the Appellate Division could not on that basis bar a retrial. The question was at best a close one, within the trial court’s discretion, and defendant thus cannot be said to have established a “clear legal right” to relief, as he was required to do to succeed in the Article 78 proceeding. See, e.g., Hall v. Potoker, 49 N.Y.2d at 505. 50 POINT TWO THE PETITION WAS FILED OVER TWO YEARS PAST THE FOUR-MONTH LIMITATIONS PERIOD AND IS TIME- BARRED. The Appellate Division should have dismissed the petition because it was filed twenty-six months after the limitations period had lapsed. Petitioner is aggrieved by the court’s mistrial and retrial rulings – orders issued thirty months before he instituted this Article 78 proceeding. Moreover, petitioner’s malingering is the reason for the delay and his claim that the limitations period should be extended because the threat of a retrial is ongoing flouts the very purpose for a statute of limitations and should not be countenanced. The Appellate Division’s contrary decision is flawed and should be reversed. An Article 78 petition must be filed within four months of the challenged action. C.P.L.R. §§ 217 and 7804(f). Here, petitioner is aggrieved by the trial court’s decision not to proceed with eleven jurors and to order a mistrial and retrial instead. Because these rulings are “unambiguous” and their “effect certain,” the date of these orders, and not the People’s “threat” of a retrial, is the starting point for calculating the limitations period. See, e.g., Edmead v. McGuire, 67 N.Y.2d 714, 716 (1986). There is no dispute that the court issued the challenged orders on July 22, 2010 (Verified Petition, ¶ 30; A13). Thus, the petition should have been filed within four months, no later than November 22, 2010. Instead, 51 petitioner waited thirty months, until January 23, 2013, to file the instant petition. Indeed, even giving defendant the benefit of the two-month adjournment period, until October 4, 2010, petitioner still waited beyond two years to file for extraordinary relief from the Appellate Division. Since, by either calculation, the filing was well beyond the four-months set by statute, the petition was time-barred and should have been dismissed. C.P.L.R. §§ 217 and 7804(f); Holtzman v. Marrus, 74 N.Y.2d 865, 866 (1989). The People have been ready to retry petitioner since the day the court ordered the mistrial and throughout the period of defendant’s delay. But only when the trial was literally about to commence, with the witnesses ready, did petitioner file a petition for extraordinary relief from the Appellate Division. That was too late. The determination of a governmental entity is final and binding when it “has its impact” upon the “aggrieved” Article 78 claimant. Where the determination is “unambiguous” and “its effect certain,” the statutory period commences “as soon as the aggrieved party is notified.” Edmead v. McGuire, 67 N.Y.2d 714, 716 (1986) (involuntary retirement decision). The four-month limitations period in Article 78 serves the important public purpose of ensuring that “the operation of government not be trammeled by stale litigation and stale determinations.” Mundy v. Nassau County Civ. Serv. Commn., 44 N.Y.2d 352, 359 (1978) (Breitel, Ch. J., dissenting), cited in Rosenthal v. City of New York, 283 A.D.2d 156, 159-160 52 (1st Dept. 2001); accord Red Hook v. New York Board of Standards, 5 N.Y.3d 452, 464 (2005)(G.B. Smith, J., dissenting), quoting Railroad Telegraphers v Railway Express Agency, Inc., 321 U.S. 342, 348-349 (1944). Following this principle, the Court has enforced the four-month limitations’ period in a variety of cases arising under Article 78. See Windy Ridge Farm v. Assessor of Town of Shandaken, 11 N.Y.3d 725 (2008)(unfair tax assessment claim); Grant v. Senkowski, 95 N.Y.2d 605 (2001)(disciplinary action against prisoner); Lubin v. Board of Education, 60 N.Y.2d 974 (1983)(license termination decision); Queensborough College v. State Human Rights Board, 41 N.Y.2d 926 (1977) (employment termination decision); Colodny v. New York Coffee and Sugar Exchange, 2 N.Y.2d 149 (1956) (imposition of fines and sanctions against traders). In Queensborough College, for instance, at issue was the college’s “manifested decision not to reappoint [the petitioner]” as an employee. Even though the petitioner finished her term of employment after the denial ruling, and the denial of reappointment did not take effect until the complainant completed that term, the court held the petition should have been filed within four months of the denial decision. But petitioner waited until her employment ended, which was well beyond four months from the denial ruling, and that was too late. The Court held there was “no basis for reasoning” that the limitation [period] did not start to run until the complainant was actually 53 effected by it, at the end of her current term of employment.” Queensborough College, 41 N.Y.2d at 926. Just as in Queensborough and similar cases, defendant was immediately aggrieved by the court’s mistrial and retrial orders and there is “no basis for reasoning” that the limitation period started any later than that. The court’s orders were “unambiguous” – the first trial ended in a mistrial, and the case was going to be retried – leaving no room for defendant to question the “impact” of those orders on him. Edmead v. McGuire, 67 N.Y.2d at 716 (1986). The die was cast on July 22, 2010, the day the court issued its orders. As of then, defendant and his attorney knew that on October 4, 2010, defendant would be in court facing a retrial on gun-possession charges under the open indictment in this case. No other steps were necessary to effectuate that result, and the date of the court’s order directing a mistrial and retrial is the date upon which the limitations period under Article 78 started. Queensborough College, 41 N.Y.2d at 926. Indeed, recognizing this principle and the important purpose served by a finite limitations period, the Court has repeatedly dismissed civil cases filed too late, even when the dismissal creates a hardship for particularly sympathetic claimants. E.g. Zumpano v. Quinn, 6 N.Y.3d 666 (2006)(delayed claim of sexual abuse); Putter v. North Shore University Hospital, 7 N.Y.3d 548 (2006)(widow’s delayed medical malpractice claim). 54 Similarly, an Article 78 petition, like any civil proceeding, is subject to dismissal if not timely filed. See e.g. Windy Ridge Farm v. Assessor of Town of Shandaken, 11 N.Y.3d 725; Grant v. Senkowski, 95 N.Y.2d 605; Lubin v. Board of Education, 60 N.Y.2d 974; Queensborough College v. State Human Rights Board, 41 N.Y.2d 926; Colodny v. New York Coffee and Sugar Exchange, 2 N.Y.2d 149 (1956). And here, as Article 78 has already been expanded to recognize relief for a criminal defendant facing double jeopardy – who is permitted to seek Article 78 relief despite the availability of a legal remedy under the Criminal Procedure Law (see Hall v. Potoker, 49 N.Y.2d at 501) – there is no good reason to broaden the exception any more than that by extending the limitations period also – especially with a confected claim that the People’s “threat” of a retrial is the triggering event. Contrary to the statute and the case-law, the Appellate Division denied the People’s claim that the petition was time-barred because not filed within four months of the aggrieved action, erroneously concluding that the People’s intention to retry defendant constituted an ongoing “threat” that extended the limitations period. The First Department reached a similar conclusion in Johnson v. Carro, 24 A.D.3d 140 (1 Dept. 2006). But thest reasoning in those cases is flawed. The People are not, and could not, “threaten” a retrial anymore than the People could unilaterally decide to retry defendant. Instead, it is the 55 court that has the authority to order a retrial, and the People are proceeding to retry defendant on the open indictment as permitted by the trial court’s July 2010 order. The reason the People have not succeeded in retrying defendant any sooner, and thus continue to stand ready to retry this case, is defendant’s undisputed dilatory tactics (Verified Petition ¶¶ 30-31; QDA Answer ¶¶ 26-34; A 13, A58-A60). Given this posture, a relaxation of the limitation period under the guise that the People continue to threaten a retrial undercuts the very purpose of the limitation period and creates an undeserved windfall for defendant. In cases like this, the logical consequence of the “continuing threat” rationale would be no limitations period at all – so long as defendant successfully postpones the retrial date, the petition would remain timely. And that period in this case has been quite extended. Moreover, the benefit would accrue to defendant no matter how dilatory his tactics, allowing him to malinger in the trial court, forestall his retrial, and then be relieved from answering the criminal charges simply because the People stand ready to retry the case as ordered by the court long ago. Moreover, defendant’s conduct here is far from that of a good faith litigant and undeserving of a relaxation of the limitations period. To the contrary, petitioner flaunts the statute, and his ongoing pattern of malingering ought not be rewarded by a judicial bail-out well after “the horse was out of the barn.” 56 Defendant complains about the court’s orders of July 22, 2010. On that day, the court denied defendant’s requests to proceed with the panel of eleven jurors, declared a mistrial, ordered a retrial (Proceedings: 375-378; Verified Petition ¶¶ 9, 30; QDA Answer ¶¶ 26, 27; A524-A527, A3, A13, A58). The court adjourned defendant’s case until October 4, 2010 (a period of just over two months) for the parties prepare for a retrial (Proceedings: 375- 378; QDA Answer ¶¶ 26, 27; A524-A527, A58). (Proceedings: A 504-507, 514). After that initial two-month period, beginning in October 4, 2010 and continuing until January 23, 2013, defendant’s retrial was scheduled in Queens County Supreme Court on numerous occasions. Indeed, during that twenty- seven month period, defendant’s case was typically on the court’s calendar at least once every thirty days, and on at least five occasions the People were ready to proceed with the retrial: June 8, 2011, June 19, 2012, November 9, 2012, January 9, 2013, and January 24, 2013. On only one of those dates, January 9, 2013, did defendant announce readiness for trial. On the other occasions, defendant would not agree to a trial date and requested adjournments. Moreover, defendant never moved to dismiss the indictment based on double jeopardy or sought any similar relief under the Criminal Procedure Law (QDA Answer ¶¶ 26-28; A58) When at last, both sides were ready on January 9, 2013, the court scheduled the retrial to commence the following week, on January 16, 2013. The People were unable to proceed that day due to grave illness in a witness’s 57 family, and the trial was adjourned for one week, until January 24, 2013. That day, defendant requested and was granted another adjournment of the retrial, this time based on an Article 78 petition filed by a newly-retained counsel in the Appellate Division the day before (QDA Answer ¶28; A58-A59). Having7 sat on his rights in this fashion for two and one half years, petitioner should not now be permitted to argue that the petition was timely filed. The Court should reverse the Appellate Division’s decision because it erroneously allowed defendant to file the petition more than two years after the four- month Article 78 limitations period had lapsed. Petitioner is aggrieved by the court’s orders issued thirty months before he instituted this proceeding, and his malingering is the only reason for the delay. Extending the limitations period with the notion that the People’s “threat of a retrial” is ongoing is a confected concept that should not be countenanced. This Court should reverse the Appellate Division’s decision and direct the petition to be dismissed as untimely. * * * By his repeated consents to a retrial, defendant waived any claim that the court’s orders subjected him to double jeopardy. Moreover, defendant had no clear legal right to proceed with a jury-panel of eleven after the twelfth Defendant was represented throughout the Supreme Court proceedings by Mahmoud7 Rabah, a private attorney. Mr. Michael Patrick Megaro and his associate John S. Campo appeared in the Appellate Division on defendant’s behalf. Mr. Megaro’s comment that he “telephoned” the prosecutor on January 18, 2013, informing him of the impending Article 78 (Verified Petition ¶33; A13-A14) addresses only the tip of the iceberg and hardly accounts for the thirty months of delay prior to that. 58 juror’s gross misconduct subjected his peers to erroneous outside legal advice on a key issue over which it was deadlocked. Indeed, the jurors responded to the advice with misconduct of their own and defendant’s attempt to retract his consent highlighted his stratagem to benefit from the pro-defense posture of some of the remaining jurors. A trial by any portion of that tainted panel severely threatened to compromise the fundamental sanctity of the jury process. Particularly given defendant’s malingering in the trial court for no less than two years after the retrial order, this record fails to demonstrate that petitioner had any right, much less a clear legal right, to extraordinary relief from the long-avoided retrial, and the petition should have been dismissed or denied. 59 CONCLUSION For the reasons set forth above, the order of the Appellate Division prohibiting a retrial should be reversed. 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 November 4, 2013 REVISED April 15, 20148 By order of the clerk’s office, the brief was revised to include citations to the8 Revised Appendix. 60