People v. Cruz

161 A.D.2d 1182, 555 N.Y.S.2d 523, 1990 N.Y. App. Div. LEXIS 9197

Opinion

Judgment unanimously affirmed. Memorandum: Defendant asserts that double jeopardy attached to bar his retrial. A motion to dismiss the indictment pursuant to CPL 210.20 (1) (e) is an appropriate remedy to assert a claim that a retrial would subject defendant to double jeopardy (see, Matter of Enright v Siedlecki, 59 NY2d 195, 198, n 1; People v Gentile, 96 AD2d 950, 951). The motion "must be made in writing and upon reasonable notice to the people” (CPL 210.45 [1]). An oral application is not appropriate (People v Lawrence, 64 NY2d 200, 203). Here, defendant’s failure to comply with the statutory procedure resulted in a waiver of his statutory double jeopardy claim (see, People v Lawrence, supra; People v Key, 45 NY2d 111, 116).

Turning to defendant’s constitutional double jeopardy claim (see, US Const 5th Amend; NY Const, art I, § 6; see also, People v Michael, 48 NY2d 1, 5-7), on the record before us, we conclude that the trial court did not abuse its discretion in declaring a mistrial, over defendant’s objections, on the ground of "manifest necessity” (United States v Perez, 9 Wheat [22 US] 579, 580; Hall v Potoker, 49 NY2d 501, 505; People v Gentile, 96 AD2d 950, 951, supra). The unavailability of a critical prosecution witness resulted from an unforeseeable contingency not within the control of the People (see, Hall v Potoker, supra, at 506). (Appeal from judgment of Chautauqua County Court, Adams, J.—criminal sale of controlled substance, third degree.) Present—Dillon, P. J., Doerr, Boomer, Davis, and Lowery, JJ.