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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 168
In the Matter of Eric Smith,
            Respondent,
        v.
Richard A. Brown,
            Appellant,
Kenneth Holder, &c, et al.,
            Respondents.




          Jill Gross Marks, for appellant.
          Patrick Michael Megaro, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be reversed,
without costs, and the petition dismissed.
          Petitioner Eric Smith was charged with weapon
possession after the police stopped him for a traffic infraction
and discovered that he was carrying a loaded handgun.   During

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jury deliberations, two jurors sent a note to the court reporting
that juror 11 had recounted to the entire jury "a conversation he
had with a lawyer friend regarding hypothetical cases involving a
gun."   After the three jurors were questioned, the court
dismissed juror 11 with the consent of defense counsel and the
prosecutor.
           Following a short recess, the prosecutor requested that
a mistrial be declared because only eleven jurors remained.
Defense counsel opposed a mistrial and asserted that
deliberations could continue with eleven jurors, relying on
People v Gajadhar (9 NY3d 438 [2007]).   The court declined to
proceed with fewer than twelve jurors and granted a mistrial,
finding that "the very heart and integrity of the jury process
has been compromised by the juror misconduct in this case."
           The People sought to prosecute Smith again and the case
was adjourned repeatedly for more than two years.   When the trial
date finally arrived, the case was again postponed because Smith
had commenced this CPLR article 78 prohibition proceeding in the
Appellate Division.   He claimed that the Double Jeopardy Clause
barred a retrial because deliberations could have continued with
eleven jurors under Gajadhar and there was no "manifest
necessity" demanding a mistrial.   The People responded that the
article 78 petition was untimely because it was filed more than
four months after the mistrial had been declared.
           The Appellate Division held that the proceeding had


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been timely commenced under a "continuing harm" theory and
granted the writ of prohibition (see 105 AD3d 965 [2d Dept
2013]).   The court concluded that the declaration of a mistrial
was an abuse of discretion because the trial court did not
consider alternative remedies, such as continuing the proceedings
with an eleven-member jury; asking the jurors about their ability
to remain impartial; or issuing a curative instruction to cure
the taint.
             We now reverse.   A four-month limitations period
applies to CPLR article 78 prohibition proceedings (see CPLR 217
[1]; see e.g. Matter of Holtzman v Marrus, 74 NY2d 865, 866
[1989]) and the petition here was filed more than two years after
the mistrial was declared.     Although a tolling period for
continuing harm has been recognized (see e.g. Matter of Johnson v
Carro, 24 AD3d 140, 141 [1st Dept 2005], lv denied 7 NY3d 704
[2006]; Taub v Committee on Professional Stds. for Third Jud.
Dept., 200 AD2d 74, 77-78 [3d Dept 1994]) and would be adopted by
our concurring colleague, we reject its application in this
situation.    Once the People definitively demonstrated their
intent to re-prosecute and the court began to calendar the case
for eventual trial, Smith was obligated to initiate his Double
Jeopardy-based article 78 challenge within the statutorily
prescribed time frame.    On the facts of this case, that period
expired well before prohibition was sought, and therefore, the
proceeding was barred by the statute of limitations.


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Matter of Eric Smith v Hon. Richard A. Brown et al.
No. 168




LIPPMAN, Chief Judge (concurring in the result):
            I cannot agree with the majority that the petition is
untimely.   I concur in the result as I also believe that the
Appellate Division order should be reversed and the petition
dismissed, but I reach that result on the merits.
            The majority implicitly rejects respondent's contention
that the statute of limitations starts to run on the date the
trial court declares a mistrial.   Presumably they do so on the
basis that the declaration of mistrial is not a "final and
binding" decision to retry the defendant in the criminal case
(CPLR 217 [1]; Matter of Holtzman v Marrus, 74 NY2d 865 [1989];
Matter of Edmead v McGuire, 67 NY2d 714 [1986]).

            The majority apparently concludes the determination
became final and binding "[o]nce the People definitively
demonstrated their intent to re-prosecute and the court began to
calendar the case for eventual trial (majority op at 3)."    This
test is at best uncertain and can only engender unnecessary,
protracted litigation on a preliminary issue.

            Here, for example, the People repeatedly adjourned the
proceedings.   The People could have dropped the charges at any

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time, which would have terminated the possibility of a retrial.
The parties were in a holding pattern for over two years.

             In any event, there is no reason to bar as untimely an
article 78 petition raising a double jeopardy claim prior to
retrial.     The majority requires petitioner to go through retrial,
conviction, and appeal in order to raise this double jeopardy
claim.

             I would adopt the holding of the Appellate Division in
Matter of Johnson v Carro (24 AD3d 140, 141 [1st Dept 2005], lv
denied 7 NY3d 704 [2006]) that respondent's assertion of
authority to retry petitioner is a continuing wrong.    The nature
of prohibition proceedings, that they address "whether [a] body
or officer proceeded, is proceeding or is about to proceed
without or in excess of jurisdiction" (Matter of Town of
Huntington v New York State Div. of Human Rights, 82 NY2d 783,
786 [1993] [quotation marks and citation omitted]), calls into
question "the very applicability of the four-month statute of
limitations" of CPLR 217 (1) (Siegel, NY Prac § 566, at 1006 [5th
ed 2011]).    Unlike article 78 proceedings based on certiorari or
mandamus, a prohibition proceeding "is one that implies a lack of
jurisdiction on the part of the respondent that would presumably
be a continuing one -- it can be argued that the four months may
be measured from any point during the jurisdiction's continued
exercise" (Siegel, NY Prac § 566, at 1006 [5th ed 2011]).



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            Nonetheless, petitioner is not entitled to a writ of
prohibition since, on the merits, the trial court properly
declared a mistrial based on manifest necessity.    The jury in
this case was thoroughly tainted by gross misconduct justifying
mistrial.   While the jury panel was focusing on whether the
evidence showed "possession of a gun," juror 11 told the panel
"the only thing that we should focus on is whether we believe
that the gun was in the car or not."    Juror 11 obtained this
advice from his lawyer friend whom he had called the previous
night to discuss a "hypothetical situation concerning a gun."
Jurors 7 and 12 sent a note to the court reporting that juror 11
had recounted this to the entire jury.   Juror 12 indicated to the
court that she was angry about what occurred and uncomfortable
with juror 11's behavior.   Juror 11 then admitted his misconduct.
Rejecting defense counsel's request to poll the remaining jury
members as to their impartiality, as is the normal course, the
court emphasized that juror 11's actions went "above and beyond"
usual misconduct because his disclosure of the lawyer's advice on
an integral issue to the case had "tainted" and "compromised" the
"absolute integrity of the jury process" and irreparably infected
the entire jury.   The court was "absolutely satisfied" that "the
very heart and integrity of the jury process ha[d] been
compromised," resulting in an incurable taint to the entire
trial.   Under the circumstances, it cannot be said that the trial
court abused its discretion in declaring a mistrial (see Matter


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of Rivera v Firetog, 11 NY3d 501, 507 [2008], cert denied 556 US
1193 [2009]; Matter of Enright v Siedlecki, 59 NY2d 195, 200
[1983]).

*   *   *   *   *   *   *   *    *      *   *   *   *   *   *    *   *
Order reversed, without costs, and petition dismissed, in a
memorandum. Judges Graffeo, Read, Smith, Pigott, Rivera and
Abdus-Salaam concur. Chief Judge Lippman concurs in result in an
opinion.

Decided October 21, 2014




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