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Court Discusses Dismissal of a Count in the Interest of Justice and a Re-trial


The People appealed an order of the Supreme Court after the acceptance of a verdict of guilty to the third count of an indictment, dismissal of the first count after the jury failed to agree and the second was dismissed and never submitted to the jury. The jury returned a guilty verdict of endangerment of the welfare of a child against the defendant on the third count but the members of the jury were deadlocked on the charge of rape in the first degree. As a result, the court, on its own accord dismissed the first count, which was rape in the first degree because the trial judge thought it was prudent for the court to conserve the financial resources of the State and that the jury comprised of intelligent people would could not reach a unanimous verdict. However, no other explanation was offered for the dismissal.

The Criminal Procedure law (210.40) allows the dismissal of an indictment by the court in their discretion considering compelling factor, or circumstance that clearly demonstrates that conviction or prosecution of the defendant would result or constitute an injustice. The dismissal of the first count of the indictment of rape in the first degree after jury failed to agree was improper and constituted reversible error where the People were not first afforded notice and an opportunity for a hearing. Where the trial court believed that the evidence adduced by the People on one count of the indictment was legally insufficient to sustain a conviction, it could have dismissed the remaining count of the indictment on that ground, rather than speculate on the cost-effectiveness of a second trial.

Notwithstanding that the Appellant Division of the Supreme Court agreed that the first count of the indictment should not have dismissed, the Court then considered whether to order a retrial of the matter. One of the factors in considering whether to order a retrial is that it must not subject the defendant to double jeopardy. The functional test was used to determine whether the defendant would be the subjected to double jeopardy. The ultimate decision must rest on whether a second trial will violate any of the defendant’s rights protected by the double jeopardy clause. The right of the defendant against double jeopardy would not be violated by a second trial where, even though the trial court dismissed first count of the indictment against him because it wanted to spare the State the expense of a second trial and because it formed opinion that a second jury would not have been superior to first, the sufficiency of the prosecution’s evidence was never mentioned, nor did the court determine the gun defendant would be innocent of the underlying count, and the defendant would not be deprived by a second trial of his right to have his trial completed by court.

Once the trial court properly found that the jury was hopelessly deadlocked, doctrine of “manifest necessity” required a declaration of a mistrial. Thereafter, the defendant’s right to proceed to a verdict with the first jury would be terminated and the interest of the society would be the deciding factor in giving the prosecution an absolute opportunity to convict the defendant for having violated its law. In the absence of an acquittal or termination based on a ruling that prosecution’s case was legally insufficient, the double jeopardy clause did not preclude a retrial when reversal was predicated on trial error alone.

A Staten Island Criminal Attorney can assist with any matter associated with a rape or endangerment of a child’s welfare. A Queens County Criminal Lawyer will adequately advise you about the violation that you are charged with and whether the charge can be dismissed. At Stephen Bilkis & Associates, we offer excellent legal services to assist you with your legal dilemmas to achieve the best results. Our offices are conveniently located throughout New York City and we offer free consultations

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