THE PEOPLE &C., RESPONDENT, v. JOHN B. ALLEN, JR., APPELLANT.
86 N.Y.2d 599, 658 N.E.2d 1012, 635 N.Y.S.2d 139
November 2, 1995
(Case Commentary by Editorial Board)
4 No. 225 (1995 NY Int. 242)
Decided November 2, 1995
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Vincent F. Gugino, for Appellant.
Denise C. Hochul, for Respondent.
LEVINE, J.:
After a jury was selected and sworn and opening arguments scheduled in
defendant's trial on charges of attempted murder, attempted aggravated
assault upon a police officer, weapons possession, and various drug
possession charges, the prosecutor requested and was granted a one day
continuance because his first witness had suffered a heart attack that
morning and was hospitalized. The next day, after speaking with the
witness' physician, the court informed counsel and the defendant that
the heart attack had been massive and the witness would be unavailable
for at least seven weeks. The prosecutor requested a second
continuance which was denied by the court. The People then moved for a
mistrial, which was granted over objection by the defense. In granting
the motion for a mistrial, the court found that a mistrial was
manifestly necessary owing to the critical nature of the witness'
testimony.
On the day defendant's second trial was scheduled to begin, defendant
entered a plea of guilty to two counts each of weapons possession,
drug possession, and criminal use of drug paraphernalia. As a
condition of the plea to the lesser charges, defendant waived his
right to appeal, and expressly waived any claim of double jeopardy.
After sentencing, defendant appealed the judgment of conviction to the
Appellate Division, arguing that his purported waiver of his right to
appeal on the constitutional double jeopardy ground was invalid, and
that the trial court erred in finding manifest necessity for a
mistrial. The Appellate Division affirmed the conviction holding that
although the waiver was invalid, the trial court properly granted the
motion for a mistrial based on manifest necessity (204 AD2d 973).
SNIPPETS:
After a jury was selected and sworn and opening arguments scheduled in defendant's trial on
The next day, after speaking with the witness' physician, the court informed counsel and the
On the day defendant's second trial was scheduled to begin, defendant entered a plea of
After sentencing, defendant appealed the judgment of conviction to the Appellate Division,
The Appellate Division affirmed the conviction holding that although the waiver was invalid,
Leave was granted to defendant by a Judge of this Court and, for a reason different from that
Defendant asserts that as a matter of State double jeopardy law the double jeopardy defense
He contends that because the double jeopardy defense has such strong ties with the concept of
Thus, we expressly recognized in Michael that "a double jeopardy objection may be waivable *
We can discern no substantive basis to make a distinction between an implied consent to
Society has a recognized interest in speedy trial because trial delay may result in the loss
(People v Seaburg, 74 NY2d, at 9, supra (emphasis supplied)).
The defendant who expressly waives a double jeopardy defense as part of a plea bargain after
Even more significantly, the Supreme Court has also held that a plea agreement can by its
We have held that most appellate issues may effectively be waived as part of a plea bargain,
Here, in contrast, the defendant most definitely did not consent to a mistrial and
a rule that withholds recognition of bargained-for waivers of double-jeopardy claims is
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