Thursday, March 29, 2007

The Court Report
By Richard Blassberg

D.W.I. Charge Produces Hung Jury
Westchester County Court, White Plains
Judge Jeffrey Cohen Presiding

Last Tuesday evening Defendant Jeffrey McKinlay, charged with five Vehicle and Traffic Law offenses, the top charge of which was
Driving While Intoxicated, an E-Felony, received a mixed verdict from a jury of three men and nine women that had deliberated for more
than two full days. McKinlay, who was represented by Attorney Rocco D’Agostino, was acquitted of two counts, convicted of two, Speeding and Possession of an Open Container of an Alcoholic Beverage, and reached a hung jury, on the first count, D.W.I., had been anxiously awaiting the verdict.

McKinlay, who had been stopped last Fall by Village of Ossining Police Officer Donohue, who boasts more than one hundred D.W.I. arrests
a year, had been coming from a fair with his 21-year-old son and his son’s friend, in a customized truck that had been inspected and approved as conforming to street operational regulations. Officer Donohue claimed that he had followed the vehicle for some distance
traveling at more than fifty-miles-per-hour in a thirty-mile-per-hour zone.

Donohue, who first claimed that the video taping camera in his patrol car was not functioning, and did not record the stop and arrest,
testified that upon giving the Defendant one of a series of routine field sobriety tests which required McKinlay to raise one leg and stand for
several seconds with his arms over his head, had to practically catch the Defendant to keep him from falling over. However, the video machine, that was, in fact, working, produced a tape that showed no such scenario, and tended to contradict the arresting officer’s account.

Early in the trial, on Thursday the 15th, Attorney D’Agostino had torn into Officer Donohue on cross-examination, attempting to impeach his testimony elicited by Assistant District Attorney Christina Dushaj. Despite repeated efforts by D’Agostino to pry acknowledgement of prior conflicting testimony in pre-trial proceedings ADA Dushaj, who re-ceived mostly favorable rulings from Judge Cohen on numerous objections to Defense inquiries under cross-examination, succeeded in preventing serious impeachment of her witness.

The jury, which had heard testimony all day on Thursday and Friday of the previous week, including closing arguments and the jury charge
Friday afternoon, had been sent home for the weekend and not sequestered after less than two hours deliberation. Returning on Monday, the
19th, they went to lunch, having sent out six notes seeking instructions and read-backs, but failing to reach a unanimous verdict on all counts. Returning from lunch at 2:15pm, the jury sent out still another note.

Judge Cohen, having brought the jurors back in, announced, “I have received a seventh note. I know that there may be frustration that you haven’t reached a verdict.” He then proceeded to remind the jurors of their promise, and their responsibility to work hard to reach a verdict. By 4:50pm Cohen entered the courtroom to advise the parties, “We’re going to let them go for the evening.”

When the jurors entered, the Judge quipped, “Ladies and gentlemen, it’s the only time you haven’t sent out a note to me,” producing some
laughter. He then turned them loose for the evening with the usual admonishment not to discuss the case with anyone.

Tuesday March 20th, moments before they would have been sent home, the jury sent out a note indicating that they had reached a unanimous verdict on all of the counts except the top count, D.W.I., and that they were hopelessly deadlocked, and would not come to a unanimous verdict no matter how much longer they deliberated.

ADA Dushaj expressed her Office’s position that they would continue to prosecute Mr. McKinlay on the D.W.I. charge, seeking a new trial
as soon as one could be arranged. In the interim, he will be sentenced for the Speeding and Open Bottle convictions in April.

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