Opinion
May 28, 1991
Adjudged that the petition is granted, on the law, without costs or disbursements, the respondents are prohibited from proceeding with the trial of the simplified traffic information filed under Nassau County Index Number 793/89 against the petitioner and the respondent Dillon is prohibited from further prosecuting that information.
The petitioner argues that where, as here, a court declares a mistrial without obtaining the defendant's consent, the Double Jeopardy provisions of the State and Federal Constitutions prohibit his retrial for the same crime unless there is a "manifest necessity" for the mistrial. He submits that there was no such manifest necessity. We agree.
Where a defendant moves for or consents to a mistrial, the Double Jeopardy Clause does not bar retrial (see, People v Ferguson, 67 N.Y.2d 383, 388). However, where a mistrial is declared without the consent of, or over the objection of the defendant "the prohibition against double jeopardy * * * precludes retrial for the same offense unless `there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated'" (Matter of Enright v Siedlecki, 59 N.Y.2d 195, 199; accord, People v Catten, 69 N.Y.2d 547, 554 quoting United States v Perez, 9 Wheat [22 US] 579, 580; People v Michael, 48 N.Y.2d 1). CPL 280.10 (3) "allows a court to declare a mistrial on its own motion only `when it is physically impossible to proceed with the trial in conformity with law'" (People v Michael, supra, at 9).
Here, nothing in the record would justify a conclusion that the petitioner consented to a mistrial or that the circumstances justified the declaration thereof. Although the petitioner did not specifically object to the mistrial, neither did he consent to it (cf., People v Ferguson, supra, at 387-389; People v Barreto, 149 A.D.2d 428, 429). That the court's term was shortly to end did not require the declaration of a mistrial. There were several other courses of action available. Thus, the declaration of mistrial was founded upon the convenience of the court and was not based upon a manifest necessity (see, People v Michael, supra, at 9). Thompson, J.P., Kunzeman, Eiber, Rosenblatt and Ritter, JJ., concur.