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This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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No. 190 

In the Matter of Catherine A. 

Gorman,

 Appellant,

 v.

Kathleen M. Rice, &c., 

 Respondent,

et al.,

 Respondent.

Harry H. Kutner, Jr., for appellant.

Barbara Kornblau, for respondent Rice.

MEMORANDUM:

The order of the Appellate Division should be affirmed,

without costs.

During the late afternoon of July 8, 2006, defendant

Catherine A. Gorman was driving a car on the Meadowbrook Parkway

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with two 10-year old girls as her passengers. As defendant

attempted to exit the parkway, her car veered out of control and

flew in front of another vehicle (one of two or three vehicles

driven by members of a family on an outing to a local fair) as

she shot over the exit ramp and plowed through a wooded area,

ultimately coming to rest on a fence that separated the wooded

area from a parking lot. The motorists in the caravan stopped to

help; one of these witnesses detected the odor of alcohol

emanating from the front seat of defendant's car; another noticed

that defendant smelled of alcohol and that her eyes were watery

and bloodshot. Defendant said that she was all right and asked

that the police not be notified. When defendant learned that

someone in the family party had already called the police, she

began walking away from the accident scene, along the side of the

parkway, with the two young girls in tow.

The police intercepted defendant and the two children

at an exit ramp perhaps one-quarter of a mile distant from the

accident scene. Based on defendant's appearance, slurred speech,

answers to questions, the odor of alcohol and her performance on

standard field sobriety tests, the police concluded that she was

intoxicated. Defendant was arrested and brought to the police

station, where a breathalyzer test showed a blood alcohol content

(BAC) of 0.25 percent. Defendant was charged with violating

Vehicle and Traffic Law §§ 1192 (2) (per se driving while

intoxicated [BAC of 0.08 percent or more]), (3) (driving while

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intoxicated); 1128 (a) (moving from lane unsafely); and Penal Law

§ 260.10 (endangering the welfare of a child) (two counts).

During defendant's second jury trial in District Court

in October 2009 (the first ended in a mistrial), defense counsel

announced, outside the presence of the jury, that he intended to

file a complaint against the judge for alleged pro-prosecution

rulings. The judge stated, "I'm declaring a mistrial based on

the threats of counsel to file a complaint against me. I'll be

back in five minutes." When the judge returned, he noted that

"[b]efore we broke, I declared a mistrial. I reviewed the

record, and it is clear that [defense] counsel said that my

conduct verged on needing a complaint being filed. That being

said, I am unable to preside over this trial." The judge then

remarked to defense counsel "I'm assuming . . . that you agree

that . . . I should not be able to preside over this trial," to

which defense counsel responded "yes, sir." The court continued

that "on consent, I'm going to declare a mistrial." Defense

counsel then objected that he was "not consenting to a mistrial." 

Further discussion ensued among the court and the

parties, and the prosecutor suggested that the trial be adjourned

to the following week to give everyone "a chance to cool down" so

that "[m]aybe [they could] continue the trial." The judge

responded "Well, I think . . . [it] is really up to the defendant

and [defense counsel]." The colloquy continued as follows:

"THE COURT: I just want it to be clear on the record. 

When I came back, I asked defense counsel that based on

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his comments if it was his opinion that I would not be

able to preside over this trial, and your response was

yes. Is that your opinion?

"[DEFENSE COUNSEL]: (No audible response).

"THE COURT: I'm not trying to put you on the spot.

"[DEFENSE COUNSEL]: I have to be.

"THE COURT: You were the one who told me that you

wanted -- you were going to file a complaint against

me, and you're unhappy with the way I am presiding over

the trial.

"If you believe that my conduct has been so bad it

warrants a complaint to the judiciary committee, then

so be it, then you can do it, and I'll recuse myself.

"But I also don't want to be in a position where I'm

going to preside over this trial, and then when it's

over, you go to the judiciary committee anyway.

"[DEFENSE COUNSEL]: I have never done that in 36

years, 35 and a half years.

"THE COURT: So I think what I'm going to do is I'm

going to take five minutes, and you can discuss with

your client what you want to do. If you and your

client decide you want me to preside over this trial,

then I'll reconsider it.

"[DEFENSE COUNSEL]: Okay, Judge. Thank you. Thank

you for the opportunity."

After this recess, defense counsel stated that upon

speaking with his client and her family and "weighing all the

options," they had decided "regrettably . . . to go with the

mistrial." The judge then declared a mistrial "at the request of

[defendant]," discharged the jury and recused himself. A month

later, defendant moved to dismiss the accusatory instrument,

principally on double jeopardy grounds. On April 19, 2010, the

District Court Judge assigned the motion rejected defendant's

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double jeopardy claim, prompting her to bring this CPLR article

78 proceeding to prohibit a retrial.

On August 16, 2010, Supreme Court granted defendant's

CPLR article 78 petition and barred "any prosecution of

[defendant] on the [specified] charges . . . as constituting a

violation of the double jeopardy protection" (29 Misc 3d 610, 618

[Nassau County 2010]). The People timely moved for reargument. 

After several adjournments upon the request of the parties and

oral argument, Supreme Court, by decision dated February 23,

2012, granted reargument and adhered to its original decision. 

The People appealed, and on May 22, 2013, the Appellate Division

unanimously reversed, denied the petition and dismissed the

proceeding (106 AD3d 1000 [2d Dept 2013]).

The court held that "Supreme Court erred in determining

that the District Court did not retain the discretion to rescind

its previous declaration of a mistrial prior to the discharge of

the jury" (id. at 1001). And in this case, "the District Court's

initial declaration of a mistrial, made without . . .

[defendant's] consent, was rescinded and, thereafter, a mistrial

was declared upon . . . [defendant's] consent" (id.). After the

same panel denied defendant's motion for reargument and leave to

appeal to us, she appealed as of right pursuant to CPLR 5601 (b)

(1) (substantial constitutional question directly involved), or,

alternatively, sought leave to appeal. On October 22, 2013, we

denied the motion for leave to appeal as unnecessary, and granted

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defendant a stay (22 NY3d 948 [2013]). We now affirm for

substantially the reasons stated by the Appellate Division.

Until the jury is discharged, a court may rescind its

previous declaration of mistrial (see People v Dawkins, 82 NY2d

226 [1993]). Defendant argues that in this case the trial judge

never formally rescinded his initial mistrial ruling, and so

whether or not she indicated her consent after that ruling is

irrelevant. Certainly, the judge never expressly said "I rescind

my order declaring a mistrial." But we have never required any

particular language to be used to retract a prior order. Here,

the record makes clear that the trial judge was leaving the

mistrial decision up to defendant. Because she decided to "go

with a mistrial," and thus consented to it, her double jeopardy

claim fails. Indeed, if defendant were correct that the judge

never rescinded his initial mistrial order, there would have been

no need for him to afford defense counsel and defendant time to

consult about how they wanted to proceed. Concomitantly,

immediately prior to the recess to allow for this consultation,

the judge explicitly declared that it was "up to the defendant

and [defense counsel]" to decide whether or not they wanted to

continue with the trial.

* * * * * * * * * * * * * * * * *

Order affirmed, without costs, in a memorandum. Chief Judge

Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and

Abdus-Salaam concur.

Decided November 18, 2014

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