People v. Miller

62 A.D.2d 1003, 403 N.Y.S.2d 298, 1978 N.Y. App. Div. LEXIS 11045

Opinion

Appeal by defendant from a judgment of the Supreme Court, Suffolk County, rendered September 8, 1976, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Judgment affirmed. At the defendant’s first trial, the court granted the prosecutor’s motion to amend the bill of particulars to reflect that the alleged sale of heroin took place at the Southampton Village Motel instead of at the Shinnecock Motel, as was stated in the bill of particulars. The court denied the defendant’s motion to preclude and granted his application for a mistrial. Having requested a mistrial, the defendant may not now argue that the second trial, which resulted in his conviction, exposed him to double jeopardy (see Matter of Napoli v Supreme Ct. of State of N. Y., 40 AD2d 159, affd 33 NY2d 980 [on the opn of Steuer, J., at the App Div], cert den 417 US 947; cf. Matter of Cardin v Sedita, 53 AD2d 253). The Trial Judge’s finding at the first trial that the prosecutor’s failure to disclose the name of the correct hotel was not purposeful or willful is supported by the record. The defendant’s contention that he did not in fact request the mistrial is contradicted by the transcript of the aborted first trial, which reveals that the defendant personally joined in his attorney’s request for a mistrial. We have considered defendant’s other arguments and find them to be without merit. Latham, J. P., Damiani, Hawkins and O’Connor, JJ., concur.