People v. Reardon

126 A.D.2d 974, 511 N.Y.S.2d 748, 1987 N.Y. App. Div. LEXIS 42091

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1987
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Defendant’s second trial was not barred by the double jeopardy clauses of either the Federal (US Const 5th Amend) or State Constitutions (NY Const, art I, § 6). Where the defendant either requests a mistrial or consents to its declaration, the double jeopardy clauses do not ordinarily bar a second trial (People v Ferguson, 67 NY2d 383, 388; see, e.g, United States v Scott, 437 US 82, 93). There is no dispute that defendant requested the mistrial during the first trial. We find no support for defendant’s claim that the mistrial motion was necessitated by a deliberate intent on the part of the prosecution to provoke a mistrial (see, Oregon v Kennedy, 456 US 667). We have reviewed the other claims of error raised on appeal and find them to be without merit. (Appeal from judgment of Erie County Court, McCarthy, J.—criminal possession of controlled substance, third degree.) Present— Callahan, J. P., Doerr, Boomer, Green and Lawton, JJ.