Fourth Department – Double jeopardy: Shipmon v. Hon. Thomas E. Moran

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New York State Supreme Court, Appellate Division, Fourth Judicial Department

Double jeopardy

Mistrial – Manifestly necessary

Shipmon v. Hon. Thomas E. Moran

OP 23-01825

Initiated in the Appellate Division, Fourth Judicial Department

Background: The petitioner commenced an Article 78 proceeding seeking a writ of prohibition barring his retrial on the ground of double jeopardy. The trial court declared a mistrial after a juror had impermissibly looked up the definition of murder and tried to engage in deliberations outside the presence of the full jury. While the petitioner’s co-defendant requested a mistrial, the petitioner requested that deliberations continue with 11 jurors.

Ruling: The Appellate Division granted the petition. The court held that the People had not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. The petitioner expressed his desire to waive trial by a jury of 12 individuals and proceed with the remaining 11 jurors, which is an option previously endorsed by the Court of Appeals. Further, it would have been appropriate to poll the remaining jurors to ascertain whether they could render an impartial verdict.

Lindsey M. Pieper for the petitioner; Robert J. Shoemaker, county attorney, for the respondent.

Submitted