Hughes v. O'Dwyer

Proceeding pursuant to CPLR article 78 to prohibit the further prosecution of the petitioner under Queens County indictment Number N12746/89 on the ground that further prosecution would subject the petitioner to double jeopardy.

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

We find that the further prosecution of the petitioner is not barred by double jeopardy since there was a manifest necessity for declaring a mistrial at the petitioner’s first trial. The trial court at that trial had before it evidence that at least some members of the jury had improperly discussed the case, and had speculated on matters not in evidence. Moreover, the foreman of the jury had declared to the court that he could not possibly disbelieve the testimony of a police officer, and had indicated his belief that a hung jury would be the likely result of any deliberations. Under the circumstances, the court properly granted the People’s motion for a mistrial over the objection of the petitioner. Additionally, we note that evidence which was later revealed of gross misconduct on the part of the petitioner in contacting potential jurors would have necessitated a mistrial in any event. Mangano, P. J., Bracken, Lawrence, Rubin and Sullivan, JJ., concur.