People v. Brandon McFadden


AD2 order dated August 2, 2011, reversing judgment of conviction for third-degree drug possession and dismissing that count. Decision below: 87 AD3d 554, 927 NYS2d 792. Pigott, J., granted leave to People December 28, 2011.

ISSUE PRESENTED: At a first trial, the jury deadlocked on the third-degree possession count, but convicted of seventh-degree possession as a lesser included offense. Whether it violated double jeopardy to retry the defendant on the third-degree possession count. (Assigned counsel: Jonathan Garvin & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)

Issue: Whether double jeopardy barred retrial for third-degree criminal possession of a controlled substance after a previous jury deadlocked on that charge, but rendered a partial verdict convicting him of the lesser included offense of seventh-degree possession.

Held: Double jeopardy did not preclude further prosecution for third-degree possession, because defense counsel asked the court to accept the partial verdict on some counts and a hung-jury manifest-necessity mistrial on the third-degree possession count.