In the Matter of Eric Smith, Respondent,v.Richard A. Brown, Appellant, Kenneth Holder, &c, et al., Respondents.BriefN.Y.September 17, 2014To be argued by PATRICK MICHAEL MEGARO, ESQ. (Time Requested: 20 minutes) ================================================== Court of Appeals State of New York In the Matter of the Petition of ERIC SMITH, Case # APL-2013-00130 Petitioner-Respondent -against- HONORABLE RICHARD A. BROWN, District Attorney of Queens County, Respondent-Appellant. BRIEF FOR RESPONDENT Patrick Michael Megaro, Esq. BROWNSTONE, P.A. Attorney for Respondent ERIC SMITH 400 North New York Avenue, Suite 215 Winter Park, Florida 32789 (o) 407-388-1900 ( t) 407-622-1511 Patrick@brownstonelaw.com New York address: 626 RXR Plaza, 6th Floor, West Tower Uniondale, New York 11556 ==================================================== TABLE OF CONTENTS Statement Pursuant to Rule 5531 1 Certificate of Compliance 11 Table of Authorities 111 Preliminary Statement 1 Questions Presented 2 Summary of the Argument 3 Statement of the Facts 5 Argument 16 Point I - The Appellate Division Correctly Granted the Petition Because Respondent's Right to Be Free from Double Jeopardy Was Violated Where the Trial Court Improperly Granted the Prosecution's Motion for a Mistrial Over Clear Defense Objection and Request to Proceed to Verdict With the Remaining Eleven Deliberating Jurors Where No Manifest Necessity Existed and Where the Trial Court Failed to Pursue Any Alternative Courses of Action 16 A. Contrary to the Appellant's Claim, the Record Is Clear That Respondent Objected To Both the Mistrial or to Any Retrial 1 7 B. Contrary to the Appellant's Claim, Respondent Has a Constitutional Right to Proceed with Eleven Jurors, Especially Where Deliberations Have Already Commenced 18 C. The Trial Court Erroneously Declared a Mistrial Over Respondent's Objection Where No Manifest Necessity Existed and Where the Trial Court Failed to Entertain or Pursue Any Alternative Courses of Action 22 1. The Trial Court Failed to Entertain or Pursue Any Alternative Courses of Action 22 2. Because the Trial Court Failed to Conduct Any Inquiry of the Remaining Jurors or Pursue Any Alternative Action, No Manifest Necessity Existed 25 Point II - The Appellate Division Correctly Determined That The Article 78 Petition Was Not Time-Barred Where the Constitutional Violation Was Ongoing and Continuous, Particularly In Light of Appellant's Unequivocal Statement That Appellant Intended to Retry Respondent Conclusion 29 35 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. ---------------------------------------------)( Case # APL-2013-00130 STATEMENT PURSUANT TO CPLR § 5531 1. The case number in the court below was Docket# 2013-751. 2. The full names of the parties in the court below were Eric Smith against the Honorable Richard A. Brown, District Attorney of Queens County, Honorable Kenneth Holder, Justice of the Supreme Court, and Justices of the Supreme Court of Queens County. The full names of the parties in this Court are Eric Smith (Respondent) and Honorable Richard A. Brown (Appellant). 3. This action was commenced by the filing of a petition for a writ of prohibition pursuant to Article 78 of the Civil Practice Law and Rules in the Appellate Division, Second Department. 4. 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 Respondent Eric Smith in the criminal action against him entitled People v. Eric Smith, Queens County Indictment# 1075-2009. 5. Appellant is employing the appendix Dated: Winter Park, Florida November 21, 2013 RICK MICHAEL MEGARO 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. ---------------------------------------------)( Case # APL-2013-00130 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 670.10.3(0 PATRICK MICHAEL MEGARO, an attorney duly admitted to practice law before the Courts of the State ofNew York, hereby affirms as follows under penalty of perjury: The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Point Size: Line Spacing: Times New Roman 14 Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 8,993. Dated: Winter Park, Florida November 21, 2013 ii TABLE OF AUTHORITIES United States Supreme Court Arizona v. Washington, 434 U.S. 497 (1978) .................................... 17 Bordenkircher v. Hayes, 434 U.S. 357 (1978) .................................. .33 Crist v. Bretz, 437 U.S. 28 (1978) ................................................ 16 Gregg v. Georgia, 428 U.S. 153 (1976) .......................................... 33 Illinois v. Somerville, 410 U.S. 458 (1973) ............................. 16, 22, 26 Johnson v. Louisiana, 406 U.S. 356 (1972) .................................... .18 Oregon v. Kennedy, 456 U.S. 667, 671(1982) ............................. 16,17 Patton v. United States, 281 U.S. 276 (1930) ................................ 20, 38 United States v. Goodwin, 457 U.S. 368 (1982) ................................ 33 United States v. Jorn, 400 U.S. 470 (1971) ..................................... .22 Wade v. Hunter, 336 U.S. 684 (1949) ............................................ 22 Weatherford v. Bursey, 429 U.S. 545 (1977) .................................... 33 Williams v. Florida, 399 U.S. 78 (1970) ......................................... 18 New York Court of Appeals Hall v. Potoker, 49 N.Y.2d 501 (1980) .................................. 22, 24, 25 Matter of Davis v. Brown, 87 N.Y.2d 626 (1996) ............................... 17 Matter of Enright v. Siedlicki, 59 N.Y.2d 195 (1983) .......................... 22 Matter of Forte v. Supreme Court of the State ofNew York, 48 N.Y.2d 179 (1979) ........................... 31, 32 iii Matter of Gorghan v. DeAngelis, 7 N.Y.3d 470 (2006) ....................... .16 Matter of Holtzman v. Marrus, 74 N.Y.2d 865 (1989) ......................... 31 Matter of Zeigler v. Morgenthau, 64 N.Y.2d 932 (1985) .................. 22, 24 People v. Adames, 83 N.Y.2d 89 (1993) ........................................ .16 People v. Eboli, 34 N.Y.2d 281 (1974) .......................................... .33 People v. Ferguson, 67 N.Y.2d 383 (1986) ....................................... 16 People v. Gajadhar, 9 N.Y.3d 438 (2007) ................................... passim People v. Michael, 48 N.Y.2d 1 (1979) .......................................... 16 Other Courts Cornwell v. Robinson, 23 F.3d 694 (2d. Cir. 1994) ............................. 29 Gonzalezv. Hasty, 651 F.3d318 (2d. Cir. 2011) ............................... 29 Johnson v. Carro, 24 A.D.3d 140 (1st Dept. 2005) ............................ .30 Matter of Colcloughley v. Johnson, 115 A.D.2d 58 (I st Dept. 1986) ........ 25 Matter of Rubenfeld v. Appelman, 230 A.D.2d 911 (2d. Dept.1996) ... 17, 22 Matter of Smith v. Brown, 105 A.D.3d 965 (2d Dept. 2013) .................. 29 People v. Cohen, 186 A.D.2d 843 (3d Dept. 1992) ............................ .33 People v. Munoz, 136 A.D.2d 479 (1st Dept. 1988) ........................... 33 Shomo v. City of New York, 579 F.3d 176 (2d. Cir. 2009) ................... 29 Taub v. Committee on Professional Standards for the Third Judicial Department, 200 A.D.2d 74 (3d. Dept. 1994) ......... 30 iv Constitutional Provisions and Statutes United States Constitution, Article III, § 2, clause 3 .......................... 18 United States Constitution Amend. V ........................................... 16 United States Constitution Amend VI. .......................................... 16 New York State Constitution, Article I,§ 6 ................................ .16, 19 Civil Practice Law and Rules § 217 .......................................... 30, 31 Criminal Procedure Law§ 40.30(l)(b) .......................................... .16 Criminal Procedure Law§ 280.l 0 ............................................ 25, 27 Penal Law§ 265.03(l)(b) ............................................................. 5 Penal Law§ 265.03(3) ................................................................ 5 Vehicle and Traffic Law § 111 O(A)(O)(A) ......................................... 5 v PRELIMINARY STATEMENT Appellant, HON. RICHARD A. BROWN, Queens County District Attorney, hereby appeals from an order of the Appellate Division, Second Department (Hon. Peter B. Skelos, Hon. Daniel D. Angiolillo, Hon. Sheri S. Roman, and Hon. Jeffrey A. Cohen), dated April 18, 2013, granting Respondent's petition for a writ of prohibition to retry Respondent in the Supreme Court, Queens County under Indictment# 1079-2009. The Second Department granted the petition because the trial court declared a mistrial over defense objection where the trial court failed to entertain or pursue any alternatives to declaration of a mistrial, Respondent specifically requested to proceed to verdict with eleven jurors, and Appellant failed to carry his burden of showing that a retrial was a matter of manifest necessity. As a result, the Appellate Division found that Respondent's Constitutional right to be free from Double Jeopardy was violated. Appellant is appealing using the appendix method. Respondent is represented by Patrick Michael Megaro, Esq., and Brownstone, P.A. 1 QUESTIONS PRESENTED 1. Does Double Jeopardy Bar the Retrial of a Criminal Defendant Over His Objection Where There Was No Manifest Necessity Because the Trial Court Failed to Consider or Pursue Less Drastic Alternatives, There Was No Evidence in the Record That One Juror's Misconduct Infected the Deliberative Process, the Evidence in the Record Established that No Juror Was Affected By the Misconduct, and the Defendant Specifically Requested to Proceed to Verdict With the Remaining Eleven Deliberating Jurors? 2. Does the Four-Month Statute of Limitations For An Article 78 Petition in the Nature of a Writ of Prohibition Apply Where the Act Sought to Be Prohibited Has Not Yet Occurred and Where the Violation of Constitutional Rights is Ongoing and Continuous? 2 SUMMARY OF THE ARGUMENT Here, the Respondent's right to be free from Double Jeopardy was violated where the trial court declared a mistrial over the Respondent's objection and request to proceed to verdict with the remaining eleven deliberating jurors, and urged the trial court to consider alternatives to summarily declaring a mistrial. Because the improper information imparted to the jurors did not significantly prejudice the prosecution, and because Respondent had the right to proceed with eleven jurors, the trial court should have considered less-drastic alternatives suggested by defense counsel. These alternatives included polling the remaining jurors to ascertain whether one juror's misconduct had affected the remaining jurors' ability to fairly decide the case, and to issue a curative instruction if necessary, especially where the two deliberating jurors who reported the misconduct of a fellow juror unequivocally stated that the improper information shared by the offender juror had absolutely no impact on their decision-making ability. Because there was no evidence in the record that the remaining jurors' ability to decide the case fairly was compromised, the Appellant did not meet his burden of establishing that a mistrial was manifestly necessary, and the Appellate Division properly granted the petition. Additionally, the Appellate Division correctly determined that because Respondent sought a writ prohibiting his continued prosecution on the underlying indictment, and Respondent conceded he has every intention of continuing to act on 3 that underlying indictment, the harm in this case is ongoing and continuous and the instant proceeding was not time-barred, especially so where the Respondent bore the responsibility for much of the delay between the mistrial and the filing of the instant petition. Because the Appellate Division correctly determined the two questions presented in this appeal, this Court should affirm the decision of the Second Department. 4 STATEMENT OF THE FACTS The matter of the People of the State of New York against Eric Smith, was commenced by the filing of Indictment# 1075-2009 in the Queens County Supreme Court on June 4, 2009, charging him with one count of Criminal Possession of a Weapon in the Second Degree, Penal Law § 265.03(3), one count of Criminal Possession of a Weapon in the Second Degree, Penal Law § 265. 03 ( 1 )(b ), and two counts of Vehicle and Traffic Law§ 11 lO(A)(O)(A). Respondent was arraigned on the Indictment and entered a plea of "Not Guilty" on June 24, 2009, before the Honorable James P. Griffin, a Justice of the Supreme Court, Queens County. The Trial The People's Case Thereafter, Respondent appeared before the Honorable Robert McGann (retired), a Justice of the Supreme Court, Queens County for trial on July 13, 2010. Jury selection commenced on July 14, 2012 and was completed on July 15, 2010. At the conclusion of jury selection, the trial commenced with opening statements on July 20, 2010 and the People's case, which consisted of three police officer witnesses: Police Officer Patrick Agugliaro, Police Officer Jason Barr, and Detective Salvatore Scaturro, a ballistics expert. Police Officer Patrick Agugliaro's and Police Officer Jason Barr's trial testimony established that they were working together as plainclothes anti-crime police officers in an unmarked car on December 5 5, 2008. (A 59-61, 156-157)1• At approximately 10:25 p.m. they were patrolling in a residential neighborhood in Queens County when they allegedly observed Respondent driving a white Pontiac Vibe with North Carolina license plates slow down but fail to make a complete stop at a stop sign. (A 61-62, 157). The officers followed the vehicle for a short time before pulling it over by activating lights and a siren after Respondent allegedly failed to completely stop at a second stop sign (A 62-63). Respondent complied and pulled over quickly on 169th Street between 109th Road and 109th Avenue in Queens County. (A 97-98, 158). As they approached the Pontiac, they observed Respondent in the driver's seat allegedly take one of his hands off of the steering wheel and reach for his waistband, whereupon the police officers drew their firearms, pointed them at Respondent, ordered him out of the vehicle, and seized him. (A 65, 158-161). The police officers testified that a loaded .45 caliber pistol was recovered from Respondent's waistband, and he was arrested as a result. (A 66, 161-162). According to Police Officer Barr, Respondent volunteered that he didn't understand, that his family had a problem with someone and that he needed the gun for protection. (A 162). The white Pontiac was transported to the NYPD 103rct Precinct and later released to Miriam Elliot, the registered owner and mother of 1 For consistency and judicial economy, Respondent will adopt the referenced format identified in Appellant's Initial Brief. 6 Respondent. (A 122, 178-179, 297, 301). Police Officer Barr was designated the arresting officer. (Al 73, 179). On cross-examination, Police Officer Barr was impeached with numerous pnor inconsistent statements (specifically, his suppression hearing testimony) concerning the details of the stop of Respondent's car. (A 192-205, 245-249). He was further impeached with his official arrest report and his complaint report, in which he failed to record that the .45 caliber pistol was recovered from Respondent's waistband. (A 264-271). He was also impeached with the absence of any mention in any of the arrest paperwork that Respondent had made an admission concerning the pistol. (A 271-273). He admitted that he and Police Officer Agugliaro conducted a search of the white Pontiac at the scene and again at the I 03rct Precinct, but denied finding anything inside the vehicle. (A 279-283). Police Officer Barr further testified that after Respondent was arrested, he made no effort to speak with Respondent about the pistol, nor did he attempt to find out where the pistol had come from. (A 289). Detective Scaturro was qualified as an expert in ballistics, and testified in sum and substance that the .45 caliber pistol recovered by Police Officer Patrick Agugliaro and Police Officer Jason Barr was loaded and operable. (A 13 3-134, 13 7). On cross-examination, Detective Scaturro testified that there were no requests made 7 for DNA testing, fingerprint testing, or serology testing of the .45 caliber pistol at issue. (A 143). The Defense Case The defense case consisted of Respondent's mother, Miriam Elliot, and Respondent. (A 294, 305). Miriam Elliot, a retired U.S. Postal Service employee and former employee of the NYPD, testified that she was a resident of North Carolina and the owner of the white Pontiac Vibe. (A 295-297). The white Pontiac was shared by both her son, Respondent, and her nephew, Bruce Mobley2, who lived with his mother (Ms. Elliot's sister) around the comer from where Respondent lived in Queens County. (A 298-301). Respondent's home did not have a driveway, so it was kept in her sister's driveway. (A 301). She further testified that the white Pontiac was accessible to and had been used by various members of her family for a multitude of reasons. (A 298, 300-301). Respondent, a 30-year old man with no prior convictions, testified in his own defense. (A 305, 329-330). His testimony established that at the time of his arrest, and at the time of trial, he was a bus driver for Access-A-Ride and worked as a travel agent. (A 306). His duties at Access-A-Ride were to provide transportation for elderly and disabled people. (A 307). He testified that he and his cousin, Bruce Mobley, shared the white Pontiac Vibe that his mother had left them when she 2 Bruce Mobley died on October 2, 2009. 8 moved to North Carolina in 2007. (A 310). Respondent used the car several times per week to get back and forth to work, but his cousin used the car on a daily basis. (A 310-311). On the evening of December 5, 2008, he finished work at Access-A- Ride and was on his way to a family member's home for a birthday party and was wearing his work uniform. (A 314-315). Respondent testified that as he drove to the family member's home, he passed several stop signs but made sure to stop fully at each one, because as a commercial driver and holder of a Commercial Driver's License, his driving record was extremely important, and he could lose his job for committing a traffic infraction. (A 318-319). At one point, he saw that a police car was behind him with lights and sirens activated, and immediately pulled over. (A 318-319). Police Officer Barr approached the driver's side of the car with his weapon drawn, screaming threats and obscenities at him. (A 319). Police Officer Barr placed the barrel of his weapon directly in Respondent's face, right next to his temple. (A 321 ). Terrified, Respondent froze and Police Officer Barr opened the door and forcibly removed him. (A 322-323). Respondent was searched by the police, but had nothing illegal on his person. (A 323-325). He was handcuffed, thrown against the police car, and placed in the back of the police car. (A 323-324). The police began to search the interior of the Pontiac (A 324). Eventually, Respondent was taken to the 103rct Precinct. (A 325). 9 Respondent specifically denied ever removing his hands from the steering wheel or reaching for his waist. (A 319-322). He testified unequivocally that he never possessed any kind of weapon on him, and denied knowing that there was a gun inside the Pontiac. (A 322, 326-327, 329). He further denied making any statements to the police, except to ask why he was being arrested. (A 325-326). In response, he was repeatedly told to shut up and sit down by Police Officer Barr. (A 323, 326). On cross-examination, Respondent was unshakeable. He never waivered in his testimony that he never knew where the .45 caliber pistol had come from, and repeatedly denied possessing the pistol in his waistband or having any knowledge that there was a gun in the car. (A 321-322, 326-327, 329, 332). He never waivered in his denials of driving through stop signs, or making any admissions concerning the pistol found by the police. (A 318-319, 334-335). His testimony on cross- examination was consistent with his testimony on direct examination as well his mother's testimony. Jury Deliberations and the Declaration of a Mistrial After summations and the jury charge, the jury retired to deliberate. (A 468). Two and one-half hours after the jury initially retired to deliberate, the jury sent out the first of three notes to the trial court, which read "We are deadlocked. What do we do next?" (A470). 10 The trial court proposed to read the jury an Allen charge. (A 472-476). However, prior to bringing out the jury for the Allen charge, the trial court asked defense counsel what his position was on the alternate juror. 3 (A 4 71 ). Trial counsel conferred with Respondent, and then stated that Respondent would not consent to the alternate juror joining the deliberating jury, and asked for the alternate juror to be released. (A 471). The trial court then brought in the deliberating twelve jurors, as well as the alternate juror, and read the jury an Allen charge. (A 472-476). At the conclusion of the Allen charge, the trial court discharged the alternate juror. (A 476- 477). At the end of the work day on July 21, 2010, the trial court released the jurors for the day with instructions to return the following morning for continued deliberations, specifically instructing the jurors not to discuss the case amongst themselves or with anyone else, and to report to the court any violation of those instructions. (A 477-478). The following morning, July 22, 2010, the jury sent the trial court its second note, which read "We need clarification. What is evidence? Does it include the defendant's testimony? Defense attorney's statements and questions, prosecutor's statements and questions. If it does, we need to hear Smith's testimony with his 3 Originally, there were two alternates. However, Alternate Juror# I inexplicably failed to appear on July 21, 20 I 0. The parties agreed to proceed without him. 11 attorney. Does the absence of evidence constitute grounds for reasonable doubt?" (A 479-480). The trial court responded to the jury's note by answering the jury's questions and clarifying that they wanted a readback of Respondent's direct examination only. (A 483-485). The jury was then instructed to continue deliberations while the court reporter prepared Respondent's direct testimony for readback. (A 485). Prior to the readback of Respondent's direct examination, Jurors #7 and #12 sent the trial court a note that read "We would like to speak to Judge about a juror, number 11, coming in with a conversation he had with a lawyer friend regarding hypothetical cases involving a gun." (A 486). The trial court then brought Juror #12 into the courtroom for an inquiry. (A 487). Juror #12 informed the trial court that Juror #11 (Mr. ) came into deliberations that morning and [H]e mentioned that, you know, he had spoken to a lawyer friend of his about a hypothetical situation concerning a gun and that, you know, because we were still debating what is evidence, what do we base our verdict on, how do we do that, and his lawyer friend told him that, you know, in this hypothetical situation what matters is that there is a gun that, you known, is the gun there, did he have the gun, that's all we should know. Is there a gun present. And we were saying, well, you know, we have to go by what's the evidence, and he said, basically, he said so much. I'm sorry. I got clouded because I got so angry. (A 488) He basically said that was there a gun, was he in possession of a gun and that is the, you known, part of the evidence, and I said, you known, that's not right because we have to go by the evidence. What is the evidence? Let's ask the Judge what is the breakdown. What is the evidence we have to go 12 by, and he said, well, that's exactly, it's the same thing the Judge said. So then it went around the table, and basically, that's when we came and we wrote down the letter to ask you and when you said all the evidence, including the defendant's testimony, he was just like yes, like he was sitting next to me and I was still really upset, so he just kind of went like that, so he nodded in approval so then when we went back, you know, I just told him, look, I just want to excuse myself because I'm really upset about what happened, you known, and then juror seven was like, I don't know her name, she said why don't we ask the Judge. Why don't you send a note to the Judge, and then juror, Ms. , , she also mentioned, she's like, look, you spoke to your friend, whatever, and Mr. said, well, will that affect you, and Ms. said, no, it didn't affect me at all. This is after we came back from the courtroom from being in the courtroom. So after she said, no it didn't affect me at all, but you came in here and you shared your views with everybody else. (A 489-490). Trial counsel then inquired of Juror #12: MR. RABAH: Mr. basically said, well, there is a gun so that's the end of it? JUROR: No. Basically that what our verdict has to come down to us that possession of a weapon, possession of a gun so, you know, and that's when I said that, you know, we have to use the other evidence too. Like we have to, yes, there is a gun but possession that's the point, was it on him, was it not on him. That's what we are deliberating. That's, you know, the evidence from what I understand is the testimony of the police officers. But also you because as a defendant's testimony we also have to take that into evidence. So that was his point. That's what he said that, you know, basically the verdict has to come down to possession. (A 491-492). MR. RABAH: Judge, actually I do have one other question. Do you feel like you can continue on and deliberate in this case? JUROR: I pretty much had made up my decision last night like. THE COURT: Don't tell us what it is. JUROR: No, no, no. You know, I pretty much had my decision made yesterday, but we're deadlocked, you know, so I was just waiting to see where we go today. Ifwe needed more -- if we needed more testimony, you know, to getting information. I think I can, but I have to say I would be uncomfortable with Mr. . (A 492). 13 The trial court then brought Juror #7 into the courtroom to conduct an inquiry, revealing the following: JUROR: Mr. came in and he said -- THE COURT: Today? JUROR. This morning. And the first thing he said was that he spoke to his lawyer friend, hypothetically, about the case, and he said that his lawyer friend said that, I don't remember his exact words, but he said the only thing we should focus on is whether we believe the gun was in the car or not. THE COURT: No, when that was said, is it fair that people, it doesn't matter whether they accepted it or not, but they knew that that was an opinion of a lawyer, that's what they heard him say? JUROR: Yes, yes. THE COURT: Okay. Did anybody respond to Mr. when he indicated he spoke to a lawyer? JUROR: I don't remember who, well, I know Mr. I think his name is agreed with him and one of the other girls she said she was very uncomfortable that he spoke to his lawyer friend even though it was hypothetical. She said he shouldn't have done that because none of us did that. THE COURT: Did experiencing these comments by this other juror cause you any unpleasantness or difficulties as a juror? JUROR: No, not for me. (emphasis added). (A 495-496). The trial court then conducted an inquiry of Juror # 11 and confirmed that he did, in fact, speak with an attorney friend of his and sought advice on a hypothetical situation concerning how to deliberate as a juror in a gun case. (A 497). Trial counsel and the District Attorney agreed that Juror # 11 had committed juror misconduct by consulting with an attorney and sharing that conversation with the other jurors, and Juror # 11 was disqualified from jury duty and excused. (A 499- 14 502). The trial court stood in recess for twenty minutes to permit trial counsel to discuss with Respondent how to proceed. (A 502). At the conclusion of the recess, the trial court asked both parties how they intended to proceed with eleven jurors. (A 502). The People objected to going forward with eleven jurors, but Respondent specifically requested that the remaining eleven jurors continue deliberating, and specifically consented to a jury of eleven rather than a jury of twelve, citing People v. Gaiadhar, 9 N.Y.3d 438 (2007). (A 502-503). Trial counsel argued that the right to trial by jury was a right enjoyed by Respondent, not by the prosecution, and he and Respondent felt that in light of the evidence, the deliberations, and there was no evidence that the statements made by Juror #11 had influenced any of the jurors, and he could still receive a fair trial. (A 502-503). Trial counsel further specifically requested that before the trial court ordered a mistrial, it conduct an inquiry of all of the jurors to ascertain whether there was any prejudice or improper influence. (A 505). The trial court denied that application, then over objection, declared a mistrial and discharged the jury. (A 505-506). 15 ARGUMENT POINT I THE APPELLATE DIVISION CORRECTLY GRANTED THE PETITION BECAUSE RESPONDENT'S RIGHT TO BE FREE FROM DOUBLE JEOPARDY WAS VIOLATED WHERE THE TRIAL COURT IMPROPERLY GRANTED THE PROSECUTION'S MOTION FOR A MISTRIAL OVER CLEAR DEFENSE OBJECTION AND REQUEST TO PROCEED TO VERDICT WITH THE REMAINING ELEVEN DELIBERATINGJURORSWHERENOMANIFEST NECESSITY EXISTED AND WHERE THE TRIAL COURT FAILED TO PURSUE ANY ALTERNATIVE COURSES OF ACTION The Double Jeopardy clauses of the New York State and Federal Constitutions protect an accused from multiple prosecutions for the same offense. U.S. Const. Amend. V, Amend. VI, New York State Constitution, Article I, § 6, Oregon v. Kennedy, 456 U.S. 667, 671 (1982), Matter ofGorghan v. DeAngelis, 7 N.Y.3d 470 (2006). This protection includes the "valued right to have his trial completed by a particular tribunal" that the defendant had a voice in selecting. People v. Ferguson, 67 N.Y.2d 383, 388 (1986), quoting, Illinois v. Somerville, 410 U.S. 458, 466 (1973); see also People v. Michael, 48 N.Y.2d 1 (1979), People v. Adames, 83 N.Y.2d 89 (1993). In a jury trial, jeopardy attaches once the jury is empanelled and sworn. Criminal Procedure Law§ 40.30(1)(b); People v. Ferguson, 67 N.Y.2d 383 (1986), Crist v. Bretz, 437 U.S. 28 (1978). 16 A. Contrary to the Appellant's Claim, the Record Is Clear That Respondent Objected To Both the Mistrial or to Any Retrial When a mistrial is granted without the consent of and over the objection of the defendant, double jeopardy will, as a general rule, bar retrial. Matter of Davis v. Brown, 87 N.Y.2d 626 (1996); Oregon v. Kennedy, 456 U.S. 667 (1982). However, a mistrial granted as the product of "manifest necessity" will not bar a retrial. Matter of Rubenfeld v. Appelman, 230 A.D.2d 911 (2d. Dept. 1996); Matter of Davis v. Brown, 87 N.Y.2d 626 (1996), Arizona v. Washington, 434 U.S. 497 (1978). Here, Appellant claims that trial counsel's request to excuse the alternate juror constituted express consent to be tried only by a jury of twelve and further operated as consent to be retried. The record, however, establishes only that Respondent specifically consented to release the alternate juror. (A 470-471). In any event, Respondent had the right to change his mind and specifically consent to going forward with eleven jurors, which he clearly and unequivocally asserted. Thus, the Appellate Division correctly determined that Respondent did not consent to be retried and specifically objected to the mistrial. 17 B. Respondent Has a Constitutional Right to Proceed with Eleven Jurors Here, Appellant claims there is no legal right for a criminal defendant to proceed with less than eleven jurors. In making this argument, the Appellant ignores clear precedent from this Court and the United States Supreme Court. The right to trial by jury is a personal right enjoyed by a criminal defendant, not the prosecution. United States Constitution, Article III, § 2, clause 3; U.S. Const.VI; New York State Constitution, Article I, § 6. Traditionally, and as a matter of New York State Constitutional law, a jury of twelve is required in felony trials. However, the United States Supreme Court has specifically and unequivocally held that the right to trial by jury protected by the Sixth Amendment does not mandate a jury of twelve. Williams v. Florida, 399 U.S. 78, 86 (1970). Florida state law, which only requires a jury of 6 in criminal cases, was held to be constitutional in Williams. Nor is it constitutionally required under the Sixth Amendment for a jury verdict to be unanimous. Johnson v. Louisiana, 406 U.S. 356 (1972). In Johnson, the Supreme Court found no violation of the right to trial by jury where the verdict of guilty was established by a 9-3 vote in favor of conviction. Both the United States Supreme Court and this Court have held that a criminal defendant may waive the common-law and constitutionally-protected right to a jury 18 of twelve and accept a verdict from a deliberating jury of eleven, just as he may waive a number of other constitutionally-protected rights. In People v. Gajadhar, 9 N.Y.3d 438 (2007), the defendant was tried before a jury of twelve and several alternates. At the end of the trial, defense counsel informed the trial court that in the event one of the twelve jurors became unavailable after deliberations commenced, the defendant would not consent to an alternate being substituted. With that, the trial court dismissed the alternates and deliberations · continued. On the third day of deliberations, one of the jurors was hospitalized and as a consequence became unable to continue serving as a juror. Defense counsel informed the trial court that the defendant wanted deliberations to continue with the remaining eleven jurors, and the trial court accepted a waiver of the defendant's right to a jury of twelve over the People's objection. After the defendant was convicted, he appealed, raising a claim that the New York State Constitution did not permit a criminal defendant to consent to be tried by less than twelve jurors under any circumstances. This Court specifically rejected the same position urged here by Respondent. After conducting a historical review of Article I, § 6 of the State Constitution and the historical significance and common-law tradition of a twelve-member jury, this Court rejected that claim, holding that a criminal defendant may consent to be tried by less than twelve jurors. Id. at 44 7. In so holding, this Court recognized that: 19 Such a situation may arise when a deliberating juror becomes unavailable due to illness or other unexpected occurrence and the alternate jurors have been discharged at the defendant's request. In this unusual circumstance, "the waiver is tendered in good faith and is not a strategem to procure an otherwise impermissible procedural advantage" (People v. Duchin, 12 N.Y.2d 351, 353, 239 N.Y.S.2d 670, 190 N.E.2d 17 [1963]; see People ex rel. Rohrlich v. Follette, 20 N.Y.2d 297, 301, 282 N.Y.S.2d 729, 229 N.E.2d 419 [1967] ). Allowing a defendant to decide whether deliberations should continue also provides the accused with more options than would otherwise be available if the right to a jury trial were as rigid and inflexible as defendant maintains. For example, if a defendant believes that a favorable outcome is possible, he may prefer to consent to deliberations continuing with 11 jurors rather than having to endure the ordeal, risk and expense of a second trial. But if the defendant believes that he is more likely to prevail at a retrial, the constitution ensures that this remedy is available to a defendant as well. Id. at 447-448. (emphasis added) This Court further reasoned that because a criminal defendant may waive a jury entirely and consent to have the case tried before a judge, and may waive such other constitutionally-protected rights such as the right to confront his accusers, the right to counsel, the right to remain silent, the right to testify and present a defense, the right to be present during trial proceedings, as well as Fourth Amendment rights, nothing prevents a criminal defendant from waiving his personal right to be tried before ajury of twelve. Id. at. 448. In Patton v. United States, 281 U.S. 276 (1930), the defendants were tried before a twelve-member jury. During deliberations, one of the deliberating jurors became ill and was unable to continue. The defendants consented to the case proceeding to verdict with eleven jurors, and were convicted. On appeal, they claimed that the Constitution required a unanimous verdict by no less than twelve 20 jurors. The Supreme Court arrived at the same conclusion as this Court in Gajadhar: because a criminal defendant could waive a jury in its entirety, he also has the right to waive a jury of twelve and consent to be tried by a jury of eleven. In this appeal, Appellant urges this Court to reverse itself only 6 years after the Gajadhar decision and further ignore binding United States Supreme Court precedent which is consistent with Gajadhar. Appellant implicitly urges this Court to create a new right of the prosecution to insist upon a jury of twelve in a criminal case, a right that trumps the defendant's right to have his case heard before a jury he selected- a right that has never existed before. This Court should reject this position. Accordingly, because the Appellate Division correctly determined that a criminal defendant as a clear right to be tried by a jury of eleven consistently with binding United States Supreme Court and New York Court of Appeals decisions, this Court should deny the appeal. 21 C. The Trial Court Erroneously Declared a Mistrial Over Respondent's Objection Where No Manifest Necessity Existed and Where the Trial Court Failed to Entertain or Pursue Any Alternative Courses of Action 1. The Trial Court Failed to Entertain Any Alternative Courses of Action Where a trial court intends to declare a mistrial, it is "indispensably necessary" for the court to first properly explore all appropriate alternatives and ensure that there is a sufficient basis in the record for a mistrial. Matter of Rubenfeld v. Appelman, 230 A.D.2d 911, 912 (2d. Dept. 1996), Matter of Enright v. Siedlicki, 59 N.Y.2d 195 (1983), United States v. Jorn, 400 U.S. 470, 487 (1971). "Especially is this so when the mistrial involves an assessment of the impact of certain events upon a jury, such as a deadlock or the uttering of prejudicial comments." Hall v. Potoker, 49 N.Y.2d 501, 506 (1980). As stated above, the cases stress this is because "a defendant possesses a 'valued right to have his trial completed by a particular tribunal.'" Id. at 505, citing Illinois v. Somerville, 410 U.S., 458, 466 (1973), Wade v. Hunter, 336 U.S. 684 (1949). In Matter of Zeigler v. Morgenthau, 64 N.Y.2d 932 (1985), the defendant encountered one of the sworn jurors in the hallway outside of the courtroom immediately prior to opening statements and told the juror to tell her lawyer that she was going to get something to eat and would be back in the courtroom soon. The juror reported the conversation to the trial court, who conducted an inquiry outside of the presence of the other jurors. During the inquiry, the juror recounted a prior 22 contact with the defendant outside of the courtroom prior to jury selection, in which the defendant had approached several members of the panel and had spoken briefly with them. The juror stated that despite her contact with the defendant and her observations of her speaking with other members of the panel, she could still be fair and impartial. Without making any inquiry of the other jurors, and without eliciting any proof or making any factual determination that the jury had in any way been affected or tainted by the defendant's conduct, the trial court declared a mistrial over the strenuous objections of defense counsel. The Appellate Division denied the defendant's petition for a writ of prohibition. This Court reversed the Appellate Division and granted the petition, faulting the trial court for rejecting out of hand defense counsel's suggestion that the court conduct an inquiry of the remainingjurors to ascertain whether they were even aware of the defendant's conduct, and if so, whether it had in any way prejudiced them or impacted their ability to objectively and fairly decide the case. The Court of Appeals further held that this failure resulted in an incomplete record that did not support a conclusion that there was a manifest necessity for the mistrial, nor did it demonstrate that it was physically impossible to proceed with the trial in conformity of law. Here, after Juror #11 was discharged for violating the trial court's order not to discuss the case with anyone other than the deliberating jurors, the trial court sought the position of the parties on proceeding with eleven jurors. Trial counsel 23 specifically requested that the court conduct a full inquiry of the jurors to ascertain whether Juror #11 's comments had impacted them prior to declaring a mistrial. Without speaking to the remaining jurors, the trial court concluded that Juror # 11 's statements had undermined the integrity of the deliberations past the point of salvation. However, as the Appellate Division correctly noted, there is no record to support this conclusion. The record demonstrates that the two jurors who did report this to the court apparently rejected Juror #11 's statements, and were unquestionably unaffected by his conduct. (A 492, 496). Nor did the trial court pursue any other alternative measures to ensure that Respondent had the choice to have his case decided by the jury he had selected. As correctly observed by the Appellate Division, the trial court could have administered a special curative instruction to cure any perceived impropriety, such as re-reading the standard charges on evidence, the definition of possession, and reminding the jurors that they were bound to accept the law as given to them by the court. None of the alternative measures were pursued. Indeed, the mistrial at hand specifically pertains to the assessment of an impact on the jury by the mere uttering of potentially prejudicial comments. See Hall v. Potoker, supra; Matter of Zeigler, supra. Where, as here, two jurors indicated that they could proceed despite the potentially prejudicial comment, it was incumbent upon the trial court to evaluate the remaining jurors and to proceed with 24 eleven jurors if Respondent so requested. See Gajadhar, supra. The court's failure to assess the remaining jurors and proceed at Respondent's request with the remaining eleven as an alternative to a mistrial requires a writ of prohibition. Rubenfeld, supra, Hall v. Potoker, supra. As there is insufficient evidence in the record to conclude that a manifest necessity for a mistrial existed, as well as the trial court's failure to explore other alternatives and proceed with eleven jurors at Respondent's request, this Court should deny the appeal. 2. Because the Trial Court Failed to Conduct Any Inquiry of the Remaining Jurors or Pursue Any Alternative Action, No Manifest Necessity Existed Where a criminal defendant seeks a writ of prohibition barring retrial where a mistrial was declared over his objection, the District Attorney bears the burden of demonstrating that the mistrial declaration was manifestly necessary or that it was "physically impossible to proceed with the trial in conformity with law." Matter of Rubenfeld v. Appelman, 230 A.D.2d 911, 912 (2d. Dept. 1996), Criminal Procedure Law § 280.10(2), (3), Matter of Colcloughley v. Johnson, 115 A.D.2d 58, 61 (1st Dept. 1986); Hall v. Potoker, 49 N.Y.2d 501, 505 (1980). Manifest necessity for a mistrial may also be found where an error has occurred that "would make reversal on appeal a certainty, [since] it would not serve 'the ends of public justice' to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court." Illinois v. Somerville, 410 U.S. 458, 464 (1973). 25 Here, there was no manifest necessity for the trial court to declare a mistrial. The trial court could have, and should have, conducted an inquiry (as requested by trial counsel) of the entire jury to ascertain whether any of the jurors had been prejudiced or affected by Juror # 11 's consulting with an attorney about the case and his expressed opinion. (A 505). If such an inquiry had been done, there would have been additional facts for the trial court to consider, and a complete record for this Court to review. Instead of conducting an inquiry, the trial court jumped to the conclusion that the integrity of the jury had been compromised and the jury hopelessly prejudiced without any factual basis to make this conclusion. (A 506). If anything, the limited record that exists demonstrates that the jury was not compromised; the two jurors that reported Juror # 11 's misconduct to the trial court were unequivocal that they were not affected. (A 492, 496). Removal of the unqualified juror would have allowed the remaining jurors to proceed comfortably with their deliberations. There is no basis in the record that the other nine jurors would have felt any differently. The trial court could easily have fashioned an alternative to a mistrial with proceeding with eleven jurors as requested. If the trial court had conducted an appropriate inquiry instead of rejecting out of hand trial counsel's request that it do so, and found that one or more other jurors had accepted Juror # 11 's statements, the problem could have been cured with 26 appropriate legal instructions to the jury to disregard Juror # 11 's statements, just as they were instructed to disregard questions and answers to which objections had been sustained during the course of the trial. In the alternative, Respondent could have been given the option of consenting to a mistrial if, after a thorough and appropriate inquiry, it was made clear that one or more jurors had been irrevocably prejudiced by Juror # 11 's comments. Criminal Procedure Law § 280.10(3) specifies that a trial court may only declare a mistrial upon its own motion when it is "physically impossible" to proceed with the trial in conformity with law. Because Respondent had the exclusive right to consent to eleven jurors continuing deliberations and rendering a verdict, the trial could have and should have continued in conformity with the law. Because the trial did not, Respondent has been denied his right to be free from Double Jeopardy and denied his right to have the jury of his choosing decide his fate. The record in this case is clear. The trial court committed three separate errors, each of which standing alone wouldjustify granting this petition: (l)the trial court failed to make any attempt to conduct a full inquiry, (2) the trial court failed to pursue alternative and remedial courses of action, and (3) failed to create a complete record for review. If Respondent had been convicted, he would have had no cause to complain, as the trial court would have conducted a searching inquiry, issued a curative 27 instruction, and developed a record to establish that the juror misconduct did not result in any prejudice to Respondent, satisfying all Constitutional requirements. Likewise, Respondent would have had no cause to complain that he had been convicted on an 11-person jury, as he was the party who specifically requested to move forward in that fashion. Because Respondent's right to be free from Double Jeopardy and to be tried by a jury that he selected was violated when the trial court declared a mistrial over his objection, this Court should deny the instant appeal. 28 POINT II THE APPELLATE DIVISION CORRECTLY DETERMINED THAT THE ARTICLE 78 PETITION WAS NOT TIME-BARRED WHERE THE CONSTITUTIONAL VIOLATION WAS ONGOING AND CONTINUOUS, PARTICULARLY IN LIGHT OF APPELLANT'S UNEQUIVOCAL INTENTION TO RETRY RESPONDENT ... the petitioner herein is seeking a writ prohibiting his continued prosecution on the underlying indictment. As the respondents admit that they have every intention of continuing to act on that underlying indictment, the harm in this case is ongoing and continuous and the instant proceeding is not time-barred. Matter of Smith v. Brown, 105 A.D.3d 965, 966 (2d Dept. 2013). The Appellate Division rejected the Appellant's position that the Article 78 petition was time-barred because it was filed more than 4 months after the declaration of the mistrial. This rejection is well-grounded in New York State and Federal Constitutional law, and should be upheld by this court under the continuous violation doctrine. The continuous violation doctrine applies to toll a statute oflimitations where a violation of Constitutional rights is "ongoing and continuous." See Gonzalez v. Hasty, 651F.3d318 (2d. Cir. 2011), Shomo v. City ofNew York, 579 F.3d 176 (2d. Cir. 2009); Cornwell v. Robinson, 23 F.3d 694, 704 (2d. Cir. 1994) (holding that here a continuing violation can be shown, the plaintiff is entitled to bring suit challenging all conduct that was a part of that violation, even conduct that occurred outside the limitations period). 29 The First Department, the Second Department, and the Third Department have all held that where there are continuing and ongoing violations of rights, a writ in the nature of prohibition is not governed by the 4-month statute of limitations. In Johnson v. Carro, 24 A.D.3d 140 (1st Dept. 2005), the First Department held consistently with the Second Department in the instant case, finding that an Article 78 petition commenced more than 4 months after the declaration of a mistrial was not untimely because the petitioner sought to prohibit a retrial, a harm that had not yet occurred. In Taub v. Committee on Professional Standards for the Third Judicial Department, 200 A.D.2d 74 (1994), the Third Department held that an attorney who sought to prohibit future disciplinary action against him was not subject to the 4- month limitation period, where the committee had every intention of moving forward against him. In those cases, as here, the Second Department correctly noted there was no "final and binding" order that Respondent sought to prohibit in his Article 78 petition. See Civil Practice Law and Rules § 217. Rather, Respondent sought to prohibit the Appellant and the Justices of the Supreme Court of Queens County from retrying him on the underlying criminal indictment - and act which had not yet occurred at the time Respondent filed the instant petition. This Article 78 petition was in the nature of a writ of prohibition to prevent exactly that which Respondent 30 aims to do. Because the constitutional violation is ongoing and continuous, the 4- month statute of limitations was not triggered. None of the cases cited by Appellant square with the facts of this case. In Matter of Holtzman v. Marrus, 74 N.Y.2d 865 (1989), this trial court entered an ·order precluding the District Attorney from calling certain prosecution witnesses at trial. The District Attorney then sought a writ of prohibition to enforce the order in the Appellate Division, which granted the petition. This Court reversed, holding that because the order of preclusion entered by the trial court was "final and binding" and went into effect immediately within the meaning of Civil Practice Law and Rules § 217, the action was untimely. There are several other important distinctions between Matter of Holtzman v. Marrus and the instant case. In that case, it was the District Attorney who sought to prohibit the enforcement of a final evidentiary order, rather than a petition of a criminal defendant who seeks prohibition of a future retrial in violation of his Constitutional right to be free from Double Jeopardy. Further support for the Appellate Divisions decisions cited above and for the decision by the Second Department herein can be found in Matter of Forte v. Supreme Court of the State ofNew York, 48 N.Y.2d 179 (1979), a case with similar facts to the case at bar. In Forte, a case that also originated in Queens County, the petitioner successfully moved to suppress statements made by him to law 31 enforcement. The District Attorney appealed, certifying that they could not proceed with a prosecution without the statement evidence. After the appeal was denied, Forte moved to dismiss the indictment. The District Attorney then sought and obtained a superseding indictment, and sought to try Forte on that accusatory instrument. Forte filed an Article 78 petition in the Appellate Division seeking prohibition of continued prosecution, which was granted. In upholding the granting of a writ of prohibition, this Court held that the District Attorney's threat to continue to prosecute the petitioner was the determinative factor: [T]he extraordinary remedy of prohibition lies only where there is a clear legal right and only when the body or officer "acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction." Forte, at 183 (internal citations omitted)( emphasis added) According to Respondent's calculations, the underlying criminal case was scheduled once every 30 days in the 27-month time period between the mistrial and the filing of the Article 78 petition= approximately 27 court appearances. (Brief for Appellant pp. 20, 55). Speaking out of both sides of its mouth, Appellant then concedes later in its Brief that out of these 30 court appearances, Appellant was ready to retry Respondent "on at least five occasions." Having conceded its unreadiness or 32 inability to proceed with the retrial on 22 of the 27 times the case was heard before the trial court after the mistrial, Appellant argues the 30-month delay is 100% Respondent's fault due to his "dilatory tactics" and "malingering," presumably for the five times his counsel was not ready to proceed with trial. (Brief for Appellant p 54). Give that the vast majority of the delay was, by the Appellant's own calculations, its own fault, this Court should disregard this argument in its entirety. Contrary to Appellant's assertion, a District Attorney can decide unilaterally to retry a defendant so long as the retrial does not violate the Constitutional rights of the defendant. It is beyond dispute that the prosecutor has almost wide discretion to bring charges (including which charges to bring), dismiss charges, reduce charges, offer plea bargains, and decide whether to retry defendants after a mistrial, subject only to certain Constitutional limitations. United States v. Goodwin, 457 U.S. 368, 379-380 (1982); Bordenkircher v. Hayes, 434 U.S. 357 (1978); Weatherford v. Bursey, 429 U.S. 545 (1977); Gregg v. Georgia, 428 U.S. 153 (1976); People v. Eboli, 34 N.Y.2d 281 (1974), People v. Munoz, 136 A.D.2d 479 (1st Dept. 1988), People v. Cohen, 186 A.D.2d 843 (3d Dept. 1992). In this case, it was the Appellant who successfully moved for a mistrial and specifically requested a retrial - not Respondent, who strenuously objected (A 502- 503). Given this procedural history, it is absurd for Appellant to now claim that only the trial court could make the prosecutorial decision to retry Respondent when this 33 case and the underlying criminal case are both 100% a creation of the Queens County District Attorney. The track record of this case establishes exactly why the threat of a retrial is the driving force behind a writ of prohibition in these circumstances. Until and unless the case actually moves forward to trial, it is unknown whether the District Attorney will, in fact, retry a defendant. As this Court is aware, after a mistrial most cases will be resolved in one fashion or another: a plea bargain, a speedy trial dismissal, a determination of nolle prosequi, etc. How is the average defendant or defense attorney to know when and whether a retrial will occur; whether the prosecution is simply posturing in order to extract a guilty plea; when the trial court will be able to retry the case given other cases that were in line to be tried; when all of the personal schedules of the trial judge, parties, witnesses, and attorneys will permit their personal schedules to retry a case? The reality of trial practice is that there is no way to know whether a retrial on a non-violent case such as this case will actually occur, and when. All the while, the threat of a retrial hangs over the defendant's head, which may or may not become real. There is no public policy value in forcing a defendant to file an Article 78 petition to prohibit the retrial of a case that statistically will probably never come to fruition. 34 CONCLUSION The underlying criminal case was by no means a case of overwhelming evidence. The police officers called as witnesses were vigorously impeached with prior inconsistent statements, and trial counsel argued that their testimony was unworthy of belief for several valid, credible reasons. (A 192-205, 245-249, 264- 271, 271-273). Other than the police officer witnesses' inherently unbelievable testimony that Respondent possessed a firearm, there was no corroborating evidence to support their claims. On the other hand, Respondent and his mother testified consistently and credibly. Respondent emphatically denied that he possessed a firearm on his person. (A 322, 326-327, 329). Respondent had no prior criminal record, was a law-abiding and hard-working young man with two jobs, and his testimony, coupled with his mother's established that other people had access to the car where the firearm was found. (A 305-306, 310, 329-330). The offending juror who sought outside legal advice was clearly leaning towards a conviction, which was why he decided to take an expansive and legally incorrect view of the definition of possession. The trial court correctly and repeatedly charged the jury correctly on the law of possession. The two jurors who reported the misconduct unequivocally stated that Juror #11 's outside information had no effect on them - they had already made up their minds by applying the facts to the law as given to them by the trial court, and their responses strongly implied 35 that they were leaning towards acquittal. (A 490-492). There is absolutely no evidence to suggest that any other juror adopted Juror #11 's erroneous legal view. Sensing that the case was not going his way, the Assistant District Attorney took the unusual step of moving for a mistrial once the offending juror was removed from the equation.4 This was a particularly curious action to take in light of the fact that the information imparted by Juror #11 did not in any way prejudice the District Attorney- it prejudiced Respondent by giving a definition of possession that favored conviction. Prior to the developments concerning Juror #11 's misconduct, the jury had made several requests in their second note to the trial court which could fairly be interpreted as positive for the defense: "We need clarification. What is evidence? Does it include the defendant's testimony? Defense attorney's statements and questions, prosecutor's statements and questions. If it does, we need to hear Smith's testimony with his attorney. Does the absence of evidence constitute grounds for reasonable doubt?" (A 479-480). Further encouraging for Respondent was Juror #12's characterization of the jury discussions, in which she indicated that at least some jurors wanted readback of Respondent's direct examination (and, notably, not his cross-examination), and that 4 Usually, it is the defendant who moves for a mistrial over prosecution objection, in accordance with prevailing defense theory that a mistrial is better than a conviction, and it is well-advised to end a trial in a stalemate and live to fight another day. 36 at least some jurors were rejecting Juror# 11 's opinion that the jury should only focus on whether a gun was inside the car Respondent had been driving. (A 489-490). Rather, she indicated that the jurors were actively debating whether or not the gun was on Respondent's person, as the prosecution claimed, or whether the gun was inside this car that was used by and accessible to others, unbeknownst to Respondent. (A 491). These indications demonstrated that the jurors had rejected Juror #11 's expressed opinion of his attorney friend, and were actively considering whether Respondent knowingly possessed a weapon. It appeared that the remaining jurors were following the trial court's instructions to find the facts and apply them to the law as given by the trial judge. Most importantly, Juror #12 was unequivocal - she had decided the case for herself and had formed her own conclusion of the facts and applied them to the law prior to Juror #11 's misconduct. (A 492). She was unequivocal that Juror #11 's statements did not affect her at all. (A 492). Juror #7 also was unequivocal - Juror #11 's statements did not affect her at all. (A 496). No other jurors had come forward to express any discomfort with Juror # 11 's statements or report that they had been affected by his statements. As much as this information was encouragmg for Respondent, it was discouraging for the District Attorney. Readback of Respondent's direct examination had yet to occur when Juror # 11 was discharged and the trial court 37 asked the parties how they wanted to proceed with eleven jurors. Given these developments, it was hardly surprising that the District Attorney, when asked, immediately objected to the remaining eleven jurors continuing deliberations and rendering a verdict. However, trial counsel specifically invoked Respondent's right to trial by jury, and argued that the right belonged to Respondent, not the prosecution. (A 502- 503 ). Trial counsel cited People v. Gajadhar, and requested that the trial continue with eleven jurors, arguing that he was making the request in good faith, given the above developments. People v. Gajadhar and Patton v. United States make clear that in such a situation where eleven jurors are able to continue deliberations and render a verdict, the choice is the defendant's to make because it is his right to a trial by jury that is at stake-notthe court's or the prosecution's. Thus, there was no necessity to declare a mistrial because Respondent was not just consenting to continuing with eleven, but actively pursuing continued deliberations in good faith. For the reasons set forth herein, this Court should affirm the Appellate Division, find that the petition was timely filed, and deny the instant appeal. 38 Dated: Winter Park, Florida November 21, 2013 Respectfully Su chael Megaro, Esq. STONE, P.A. Atto ys for Respondent 400 orth New York A venue, Suite 215 Winter Park, Florida 32789 (o) 407-388-1900 (f) 407-622-1511 Patrick@brownstonelaw.com New York address: 626 RXRPlaza, 6th Floor, West Tower Uniondale, New York 11556 39