Defendant Edward Matinez moves to dismiss the accusatory instrument pending against him arguing the Fifth Amendment's double jeopardy clause and corresponding Article I, §6 of the New York State Constitution. Further, Defendant wants the Court to bar the prosecutor from going forward upon the remaining counts.

Prior Prosecution

On February 1, 2012, Defendant was tried on the instant indictment which had been reduced to Attempted Robbery in the First Degree (Penal Law §110.00 and §160.15), Attempted Robbery in the Second Degree (Penal Law §110.00 and §160.10), and Criminal Possession of a Weapon in the Second Degree (Penal Law §165.03). During the trial, the People dismissed Counts 8, 11, 13, and 14, and the Court dismissed , upon Defendant's motion, the counts involving Burglary in the First Degree (Penal Law §140.30), and Burglary in the Second Degree (Penal Law §140.25), leaving only counts charging Attempted Robbery in the First Degree, Attempted Robbery in the Second Degree, and Criminal Possession of a Weapon in the Second Degree.

After submission to the jury, the jurors eventually indicated inability to reach a verdict on the last count. Because of the apparent impasse, the Court indicated to the parties that it was planning to accept a partial verdict. Defendant agreed to this procedure despite the prosecutor's objections. Thereafter, the Court accepted the jury's partial verdict and found Defendant to be not guilty on the counts involving Attempted Robbery in the First Degree and Attempted Robbery in the Second Degree. Subsequently, the District Attorney indicated an intention to retry Defendant for Criminal Possession of a Weapon in the Second Degree.

Defendant's Position

Movant argues that the indictment should be dismissed pursuant to CPL §210.20 because such prosecution would amount to double jeopardy following the Court's discharge of the jury after [*2]acceptance of the partial verdict. According to Defendant, the Court discharged the jury without declaring a mistrial and without his consent, especially since no factual reason justifies the jury's discharge. Defendant maintains the Court lacked a basis for dismissing the jury and failed to establish a record that showed the panel was in fact deadlocked. Further, Defendant objects to the Court's actions which were taken without Defendant's consent.

District Attorney's Position

The prosecutor disputes Defendant's facts, pointing out counsel was given the opportunity to respond to the jury's notice, but failed to do so at the proper time, thereby providing implied consent to the mistrial ruling. In this regard, Defendant's failure to object to a mistrial finding allows for retrial upon the remaining counts and prevents double jeopardy from attaching. Finally, the District Attorney suggests a reconstruction hearing to establish the record surrounding the final jury note.

Defendant's Reply

Defendant denies he consented, impliedly or otherwise, to the Court's order for a mistrial and subsequent jury dismissal, but admits he consented to accepting a partial verdict. In this regard, Defendant says the Court never indicated to the parties that it would declare a mistrial and never sought Defendant's views about such a ruling. Further, Defendant strongly argues that there is no factual basis justifying a mistrial. Concerning a reconstruction hearing, Defendant says no hearing is needed because the transaction was placed fully upon the record. Stated another way, Defendant feels the factual record demonstrates he could not have had an expectation that a mistrial was a possibility or that he had been given a meaningful opportunity to object. Consequently, Defendant feels the only remedy is dismissal of the indictment.

Legal Discussion

Based upon the above, Defendant's motion to dismiss the indictment is denied with leave to renew. In this regard, the issue presented to the Court was whether the Double Jeopardy Clause protects Defendant against subsequent trial in this case. The clause does not, however, bar a second trial if the first ended in a mistrial (see generally, Blueford v. Arkansas, - US -, 132 S. Ct 2044, 182 L.Ed2d 937 [2012]) (see also, People v. Gause, 2012 NY Slip Op. 04276[Ct. of Appeals]). The Court now focuses upon whether it was justified in discharging the jury and whether prosecution upon the remaining counts is constitutional. Clearly, a trial can be discontinued without barring a subsequent one for the same offense when particular circumstances manifest a necessity to declare a mistrial (Id.) (see also, CPL §§ 280.10; 310.70 and 310.70).

The Court notes Defendant presents no documentary evidence with his motion. Therefore, there is no evidentiary support for Defendant's factual allegations which facts the prosecutor disputes. Further, the Court finds significant Defendant's opposition to a reconstruction hearing because he alleges an adequate record already exists.

Notwithstanding, without the record, the Court lacks ability to decide the motion. In the interests of justice, the Court grants leave to Defendant to renew his motion upon submission of a proper record (including transcript and exhibits received at trial) and further directs the parties, at any resubmission, to inform the Court in writing concerning their position upon the applicability of Blueford v. Arkansas, supra., to the facts presented here. Such writing is to be filed with the Court Clerk if Defendant elects to renew his motion.

Wherefore, upon this record,^[FN1] and based upon the foregoing, it is [*3]

ORDERED that the branch of Defendant Edward Martinez's motion to dismiss the accusatory instrument pending against him is DENIED with leave to renew, and it is further

ORDERED that the branch of Defendant Edward Martinez's motion, seeking to bar the prosecutor from going forward on the last count, is DENIED with leave to renew.

The foregoing constitutes the Decision and Order of this Court.

Dated: Bronx, New York

July 17, 2012

DOMINIC R. MASSARO, JSC