Stanley v. Justices of the Supreme Court

Proceeding pursuant to CPLR article 78 to prohibit a retrial of the petitioner under Kings County Indictment No. 6778/93, on the ground that a retrial would violate his right not to be placed in jeopardy twice for the same offense. Adjudged that the petition is denied, without costs or disbursements, and the proceeding is dismissed on the merits. We reject the petitioner’s contentions that there was no manifest necessity for the mistrial that was granted by the trial court and that the petitioner is, therefore, entitled to the protection of the Double Jeopardy Clauses of the Federal and State Constitutions (see, People v Ferguson, 67 NY2d 383). The decision whether to abort a criminal trial must rest, in the first instance, in the sound discretion of the trial court (see, Hall v Potoker, 49 NY2d 501; People v Michael, 48 NY2d 1, 9). The trial court in the petitioner’s case properly exercised its discretion by granting a mistrial, over the petitioner’s objection, due to the unavailability of a critical, prosecution eyewitness (see, Hall v Potoker, supra; Matter of Grant v Kreindler, 162 AD2d 531). Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.