People v. Ferguson , 115 A.D.2d 215 ( 1985 )

lant. Judgment affirmed. Memo-

randum: Defendant appeals from a judgment of conviction of second degree murder and primarily argues that the trial court’s declaration of a mistrial during his first trial precluded his retrial for the same offense. From the sparse record it appears that during his first trial information was received by the Trial Judge that a trial juror had been injured in an automobile accident on the evening of the fourth day of trial and was in the hospital receiving treatment for his injuries. This was confirmed by unidentified hospital emergency room personnel who further advised that the juror was not available to speak on the phone. The Trial Judge announced to counsel in chambers that she was considering a mistrial since no alternate juror remained available. Following this conference in chambers, the Trial Judge, in open court and in the presence of the jury and counsel, informed the remaining jurors of the inability of the injured juror to continue the trial and sua sponte declared a mistrial. Defense counsel waived the presence of the defendant, but did not respond to the Trial Judge’s inquiry as to whether the proposed action in declaring a mistrial was "agreeable” and otherwise remained silent.

The record gives no indication that the trial court considered the possibility of an adjournment to gather definite information concerning the injured juror’s condition before ordering a mistrial. "Since the court did not consider, or have before it the facts necessary for thorough consideration of, an obvious alternative to a mistrial, we cannot say that there was a 'manifest necessity’ to terminate the trial” (United States v Smith, 621 F2d 350, 351, cert denied 449 US 1087; see, Matter of Enright v Siedlecki, 59 NY2d 195, 200; Matter of Wilson v Chesworth, 96 AD2d 742). However, despite the absence of a "manifest necessity” a defendant cannot plead double jeopardy where the jury before which he was first on trial was discharged with his consent, which "need not be express, but may be implied from the totality of circumstances attendant on a declaration of mistrial” (United States v Goldstein, 479 F2d 1061, 1067, cert denied 414 US 873; see, United States v Smith, supra; People v Lawton, 127 Misc 2d 800).

Defense counsel did not object to the proposed mistrial nor suggest any alternative course of action and had twice previously during the course of the trial requested a mistrial based on other grounds (see, Matter of Harris v Justices of Supreme Ct., 44 NY2d 874; see also, United States v Grasso, 552 F2d 46, 55-57 [Timbers, C. J., dissenting], vacated 438 US 901, on remand 600 F2d 342, revd 629 F2d 805). Moreover, in an affidavit in support of the motion to dismiss the indictment on double jeopardy grounds, counsel admitted that "while in Chambers [he] did state that the Judge must do what she feels must be done”. This statement, which defense counsel sought to minimize as "not an unqualified consent to a mistrial” (emphasis added), plainly could have led the Trial Judge to believe that a mistrial was the desirable course to follow (see, Riley v Commonwealth, 190 Ky 204, 206, 227 SW 146, 147 [holding that defense counsel’s statement that the court should "take whatever course he thought proper” was clearly indicative of an implied consent to discharging a juror]). In our view, it is clear from the totality of the circumstances that defense counsel impliedly consented to the mistrial.

Defendant was not present either in chambers during discussion of the possibility of a mistrial or in the courtroom when the court announced its decision to abort the trial. Although a defendant has a constitutional and statutory right to be present during the trial of an indictment (US Const, 14th Amend, § 1; NY Const, art I, § 6; CPL 260.20), his presence is not constitutionally required while counsel and the court discuss the advisability of declaring a mistrial (see, People ex rel. Lupo v Fay, 13 NY2d 253, mod 13 NY2d 1178, cert denied 376 US 958), nor is defendant’s personal consent to a mistrial required to eliminate any double jeopardy bar to retrial (see, United States v Dinitz, 424 US 600, 609, n 11 [standard of knowing, intelligent and voluntary waiver does not apply in double jeopardy cases based on mistrials]). Consequently, it is clear that the express or implied consent of defense counsel is binding on the defendant (see, Adkins v Bordenkircher, 674 F2d 279, 283, cert denied 459 US 853; United States v Smith, 621 F2d 350, 352, n 3, supra; United States v Bobo, 586 F2d 355, cert denied sub nom. Rowan v United States, 440 US 976). Because defendant, through his counsel, consented to the mistrial, the Constitution did not bar his retrial. We have considered the other issues raised by the defendant and find them to be without merit.

All concur, except Denman and O’Donnell, JJ., who dissent and vote to reverse the judgment and dismiss the indictment in the following memorandum.