Opinion
Submitted June 21, 1999
July 6, 1999
Proceeding pursuant to CPLR article 78 to prohibit the respondents from retrying the petitioner under Queens County Indictment No. 176/98 on the ground that retrial would violate his right not to be twice placed in jeopardy for the same offense, and application for leave to prosecute the proceeding as a poor person.
Godfrey G. Brown, Elmont, N.Y., for petitioner.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Adam D. Perlmutter, and Sharon Y. Brodt of counsel), respondent pro se and for respondent Thomas A. Demakos.
DANIEL W. JOY. J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER, SANDRA J. FEUERSTEIN, JJ.
DECISION, ORDER, JUDGMENT
ORDERED that the application is granted; and it is further,
ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.
The declaration of a mistrial due to a deadlocked jury is a matter of discretion for the trial court, which is in the best position to determine whether a mistrial is required under the circumstances of the case, and its decision must be accorded great deference ( see, Matter of Plummer v. Rothwax, 63 N.Y.2d 243). The trial court did not improvidently exercise its discretion in declaring a mistrial, as the jury appeared to be genuinely deadlocked and it would have served no purpose to order them to continue to deliberate. Accordingly, there is no bar to a retrial ( see, Matter of Plummer v. Rothwax, supra; Matter of Martin v. Hynes, 259 A.D.2d 547 [2d Dept., Mar. 8, 1999]; Matter of Spivack v. Brown, 259 A.D.2d 547 [2d Dept., Mar. 1, 1999]).
The petitioner's remaining contention is without merit.