Opinion
May 1, 1995
Appeal from the Supreme Court, Kings County (Owens, J.).
Ordered that the judgment is affirmed.
The defendant's contention that the indictment should be dismissed on double jeopardy grounds is lacking in merit (see, US Const 5th, 14th Amends; N Y Const, art I, § 6). It is settled that "where the defendant either requests a mistrial or consents to its declaration, the double jeopardy clauses do not ordinarily bar a second trial" (People v Ferguson, 67 N.Y.2d 383, 388; see also, Oregon v Kennedy, 456 U.S. 667, 673; People v Catten, 69 N.Y.2d 547, 554). Here, the court granted the mistrial upon the defendant's application.
Moreover, and contrary to the defendant's contentions, the record does not support a finding that the prosecutor intended "`to provoke a motion for a mistrial'" (People v Copeland, 127 A.D.2d 846, 847; see also, Oregon v Kennedy, supra, 456 U.S. 667; People v Torres, 201 A.D.2d 294; People v Russell, 199 A.D.2d 345; People v Mitchell, 197 A.D.2d 709; Matter of Roman v Brown, 175 A.D.2d 899; Schoendorf v Mullen, 152 A.D.2d 715). Accordingly, re-prosecution of the defendant was not barred by principles of double jeopardy. Thompson, J.P., Santucci, Joy and Friedmann, JJ., concur.