People v. Albarez

209 A.D.2d 186, 618 N.Y.S.2d 528, 1994 N.Y. App. Div. LEXIS 10801

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 1994
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered June 30, 1993, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him to a term of from 2 to 6 years, to run consecutively to an unrelated sentence in another case of 1 to 3 years, unanimously affirmed.

There is no merit to defendant’s claim that his right against double jeopardy was violated by the court’s declaration of a mistrial, such declaration having been made before the entire jury panel had been selected and sworn, and thus before jeopardy had attached (People v Singh, 190 AD2d 640, 640-641, lv denied 81 NY2d 1020). In declaring a mistrial, the court correctly used the less stringent standard of whether "the ends of public justice would be otherwise defeated”, rather than the "manifest necessity” standard, based upon the People’s uncontroverted representations that material witnesses had gone into hiding and could not be found despite a diligent search (see, Matter of Brackley v Donnelly, 53 AD2d 849, 850; see also, People v Singh, supra, at 641). Concur—Murphy, P. J., Rosenberger, Wallach, Kupferman and Asch, JJ.