THE PEOPLE OF THE STATE OF NEW YORK, Respondent
v.
CYNTHIA ASHE LOZADA, Appellant.
Argued By: Patricia A. Brass (counsel for the appellant); Andrea M. DiGregorio (counsel for the respondent)
Judgment Reversed & Dismissed: Andrew J. DiPaola, P.J.; Patricia D. Collins & Angelo J. Ingrassia, JJ.
DECISION OF THE COURT
<SM-1>
Appeal by defendant from judgment of the District Court, Nassau County (D. Sher, J. -Trial [jury] & Sentence) finding her guilty of petit larceny and imposing sentence. The appeal brings up for review the Order (L. Clark, J.) dated May 26, 1995 denying defendant's motion to bar her retrial.
Judgment of conviction unanimously reversed on the law and facts, fine remitted and information dismissed. <SM-2>
The selection of the original panel of the jury was accomplished without question. Alternates were chosen and the trial commenced. After direct testimony of the first witness for the People, the Court excused the jury and informed respective counsel that a possible violation had taken place regarding the rights of defendant and her co-defendant under People v. Antommarchi (80 NY2d 247). Counsel for the defendants refused to waive their rights under that case and refused to move for a mistrial. The Court, sua sponte, granted a mistrial over the People's objection as well. Defendant moved to bar the retrial, the motion was denied and defendant was eventually found guilty of petit larceny.
We note initially that the underlying information was legally sufficient, since the People are not required to specify in the accusatory instrument whether defendant was being charged as a principal or as an accomplice (see, People v. Forbes, NYLJ, April 18, 1996, App Term [9th & 10th Jud. Dists.]). We note further that the owner of the property was indicated in the instrument and that intent may be inferred from the allegations of the accusatory instrument (see, People v. Wayne, 161 Misc 2d 996, 998).
The alleged Antommarchi error involved selection of the alternate jurors. The court permitted defendant to submit <SM-3> a motion to prevent the direction of a mistrial but her motion was denied. The Court declared a mistrial pursuant to CPL 280.10(3) and held that the Antommarchi violation made a reversal required and therefore it was "physically impossible to proceed with the trial in conformity with law."
The basic rules for evaluating the granting of a mistrial by a trial court were set forth in Matter of Enright v. Siedlecki (59 NY2d 195, 199-200). In sum, a trial court is required to consider any and all possible alternatives prior to granting a mistrial and its actions should not be precipitous. "Precipitous" has been defined as not fully considering the alternatives to declaring a mistrial, not just rash, hurried actions (see, United States v. Jorn, 400 US 470, 487; Hall v. Potoker, 49 NY2d 501, 505; see also, People v . Ferguson, 67 NY2d 383, 388-389; Matter of Lamondie v. Main, 152 AD2d 902, 903; cf. People v. Gentile, 96 AD2d 950, 952). Of particular import herein is the case of Matter of Wilson v. Chesworth (96 AD2d 742), wherein the Fourth Department held that:
The Court found that since it was not "physically impossible" to continue with the trial, there was no manifest necessity and the retrial was barred by double jeopardy (see also, People v. Niccolich, 220 AD2d 461).
CPL 270.30 provides that the Court "may in its discretion direct the selection of one or more" (emphasis added), alternate jurors. The Antommarchi violation concerned only the alternate jurors, and since this was a trial for petit larceny, and alternate jurors were not required as a matter of law, it was entirely possible and conceivable to conduct this trial without any alternates. Therefore, since it was not "physically impossible to proceed with the trial in conformity with law" (CPL 280.10[3]), there was no manifest necessity for directing a mistrial and the motion to bar the retrial should have been granted. We consider no other issues.
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