People v. Presley

136 A.D.2d 949, 525 N.Y.S.2d 84, 1988 N.Y. App. Div. LEXIS 1279

Opinion

Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting defendant of first degree kidnapping, his primary claim is that a prior mistrial prohibited reprosecution on grounds of double jeopardy. We disagree. Since the mistrial was granted on defendant’s motion and there is no evidence that the prosecutor intentionally provoked it, the reprosecution was not barred by the Double Jeopardy Clause of either the Federal or State Constitutions (Oregon v Kennedy, 456 US 667, 673-674; Matter of Owen v Harrigan, 131 AD2d 20, 22; People v Reardon, 126 AD2d 974; ef., Matter of Potenza v Kane, 79 AD2d 467). We have considered each of defendant’s remaining claims and find that none requires a reversal of the judgment. (Appeal from judgment of Monroe County Court, Celli, J.— kidnapping, first degree.) Present—Dillon, P. J., Callahan, Doerr, Green and Balio, JJ.