Opinion
November 16, 1987
Appeal from the Supreme Court, Kings County (Broomer, J.).
Ordered that the judgment is affirmed.
Just prior to the start of jury selection, the Assistant District Attorney informed the court that he was having difficulty securing the presence of two eyewitnesses. The court agreed not to swear the jury "as a jury" once they are selected, in case it became necessary to declare a mistrial. A jury was then picked with the court swearing in each group as they were selected. When it became evident that the prosecution would not be able to locate the eyewitnesses in the immediate future, the court declared a mistrial and dismissed the jury. The defendant thereafter made a motion to dismiss the indictment on the ground that jeopardy had attached once the original jury had been selected and that placing him on trial a second time would violate his constitutional rights (US Const 5th Amend; N.Y. Const, art I, § 6). In the course of its decision, the trial court held that although all 12 members of the original jury had been sworn at the time they were dismissed, jeopardy had not yet attached pursuant to CPL 40.30 (1) (b) since the jury, which had not been sworn en masse, was not "impaneled and sworn" (CPL 40.30 [b]).
While we disagree with the trial court in its holding that the first jury had not been impaneled and sworn at the time of their dismissal, we nevertheless concur with the denial of the defendant's motion to dismiss the indictment. It is well settled that jeopardy attaches once 12 jurors have been sworn, regardless of whether the swearing was done individually or en masse (see, Matter of Brackley v. Donnelly, 53 A.D.2d 849; People v. Scott, 40 A.D.2d 933). However, the record clearly supports the trial court's finding that the defendant had consented to the dismissal of the first jury. Although the defendant contends that he never expressly consented to the mistrial, a thorough reading of the record calls into question this assertion. In any case, the record supports a finding that the defendant impliedly consented to the jury's dismissal, which is sufficient for him to have waived any double jeopardy claims (see, People v. Ferguson, 67 N.Y.2d 383, 388).
The defendant recites a litany of alleged deficiencies in the representation by his trial counsel ranging from counsel's failure to request a Dunaway hearing (Dunaway v. New York, 442 U.S. 200) to his failure to aggressively cross-examine witnesses. The failure of counsel to request a particular hearing is not necessarily indicative of ineffective representation (see, People v. McCrimmon, 131 A.D.2d 598; People v. Morris, 100 A.D.2d 630, affd 64 N.Y.2d 803), especially where, as here, the record reflects that probable cause to arrest the defendant did exist (see, People v. Boero, 117 A.D.2d 814). The remainder of the defendant's claims concern what were apparently decisions by counsel concerning trial strategy which our courts have refused to second-guess on appeal (see, People v. Satterfield, 66 N.Y.2d 796, 799-800; People v. Rodriguez, 132 A.D.2d 682; People v Miekeljohn, 131 A.D.2d 512). The record reveals that the performance of counsel did not deprive the defendant of meaningful representation (see, People v. Rose, 57 N.Y.2d 837, rearg denied 58 N.Y.2d 779; People v. Baldi, 54 N.Y.2d 137, 147).
The alleged errors of the prosecutor during direct examination of one of his witnesses and during summation are not preserved for review (see, People v. Stokes, 132 A.D.2d 718), and, in any case, were not so prejudicial as to require a new trial (see, People v. Cobb, 104 A.D.2d 656, 658). The defendant's objections to the charge are likewise unpreserved and, in any event, are without merit. The charge on flight was proper in light of the evidence of flight adduced at trial (see, People v. Yazum, 13 N.Y.2d 302, 304, rearg denied 15 N.Y.2d 679; People v. Limage, 57 A.D.2d 906), and a charge on circumstantial evidence was not warranted since the People's case was based partly on direct evidence in the form of the defendant's admission (see, People v Sanchez, 61 N.Y.2d 1022; People v. DiBlasi, 130 A.D.2d 679).
Finally, we note that the defendant's conviction was supported by legally sufficient evidence (see, People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932; People v. Pagan, 132 A.D.2d 681), and, upon the exercise of our factual review power, we are satisfied that the evidence established the defendant's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15). Niehoff, J.P., Weinstein, Eiber and Harwood, JJ., concur.