The defendant seeks an Order barring a re-trial on the charges of Unlawful Imprisonment in the Second Degree (Penal Law § 135.05) and Harassment in the Second Degree (Penal Law § 240.26) and dismissing these charges on the grounds he is exempt by reason of the previous prosecution pursuant to United States Constitution Amendment 5, New York State Constitution Article I Section 6, and New York Criminal Procedure Law § 40.20.^[FN1] The People oppose the motion contending that the Judge, under the circumstances leading up to his declaration of a mistrial, acted properly in determining that there was "manifest necessity" for the mistrial.

Defendant was charged with these crimes by information filed on June 30, 2006. He was arraigned on July 5, 2006, in the Village of Keeseville Justice Court.

Trial was commenced in the Village of Keeseville Justice Court before the Hon. George Head on November 9, 2006. At this time a jury was selected, sworn in, and the matter was adjourned to 1:00 PM on November 13, 2006. On that date a pre-trial conference was conducted with respect to several evidentiary matters, opening statements were delivered, and the People called its first witness, Ms. Rebecca Martin, the complaining witness. [*2]

After the People completed its direct examination, the defense began its cross-examination. As part of the cross-examination, the defense attorney questioned the complaining witness about a Family Court matter that was held that morning regarding the custody of the defendant's and Ms. Martin's daughter. Ms. Martin, who thought the matter was scheduled for the next day, did not appear in the Family Court that morning and as a result the Essex County Family Court Judge granted custody to the defendant. In response to the questions and upon learning of the outcome of the Family Court proceeding, Ms. Martin became extremely upset, began crying, and ran out of the courtroom screaming for her father. Judge Head called a recess and directed the attorneys into chambers for a conference.

Although there is no record of the proceeding both attorneys state in sum and substance that Judge head was of the opinion that the line of questioning by the defense attorney had tainted or biased the jury because they would have the impression that the defendant is the better parent because he was awarded custody, and as a result the defendant could not be guilty of the crimes he is charged. Discussions were had on how to proceed. Defense counsel offered to apologize to Ms. Martin in chambers or in front of the jury with a curative instruction from the Court, or granting a brief adjournment for Ms. Martin to regain her composure. Judge Head did not believe either of those proffered solutions would be effective. The Assistant District Attorney agreed with Judge Head. Judge Head stated that he was going to declare a mistrial and discharge the jury. Neither attorney requested the mistrial nor consented to the mistrial. Following the in chambers conference Judge Head informed the jury he was declaring a mistrial and discharged the jury.

Criminal Procedure Law § 40.30 (1) provides that "a person is prosecuted' for an offense, within the meaning of section 40.20 when he is charged therewith by an accusatory instrument filed in a court of this state . . , and when the action . . . (b) proceeds to the trial stage and a jury has been impaneled and sworn . . ." "The constitutional protection against double jeopardy is implicated once a jury has been sworn" (People v. Mergenthaler, 13 AD3d 984, 985 [3rd Dept., 2004]).

Initially this Court notes that although the cross-examination was hard-hitting, there was nothing improper in the questioning to require a mistrial due to improper behavior by the defense.

"A defendant can only be retried following a mistrial declared without his consent if there was manifest necessity for discontinuing the trial. Whether to order a mistrial rests in the sound discretion of the court, and when that discretion is properly exercised it will be held that there was manifest necessity for the declaration" (People v. Catten, 69 NY2d 547, 548 [1987]). "The Trial Judge's discretion is not without limits, however. The reasons underlying the grant of a mistrial may not be illusory; rather, in order fully to protect the defendant's right to trial by a particular tribunal they must be necessitous, actual and substantial (Matter of Nolan v Court of Gen. Sessions of County of NY, 11 NY2d 114, 119)" (Enright v. Siedlecki, 59 NY2d 195, 200 [1983]). Even if the reasons for granting a mistrial are deemed actual and substantial, the trial court must explore all appropriate alternatives prior to granting a mistrial (Pronti v. Allen, 13 AD3d 1034, 1036 (3rd Dept. 2004). "Thus, if the Judge acts so abruptly as not to permit consideration of the alternatives (United States v Jorn, 400 US 470, 487, supra) or otherwise acts irrationally or irresponsibly (Arizona v Washington, 434 US 497, 514) or solely for convenience of the court and jury (People v Michael, 48 NY2d 1, 9, supra) or other similar abuse of discretion (People v Ortiz, 54 NY2d 288, 292), retrial will be barred" (Enright, supra).

The first issue is whether the defendant consented to the mistrial. Express consent is not [*3]required, but may be "implied from the circumstances leading up to the dismissal of the jury" (Matter of Matthews v. Nicandri, 252 AD2d 657 [3rd Dept. 1998], quoting People v. Ferguson, 67 NY2d 383, 388 [1986]). If there was no consent, either express or implied from the circumstances, then the issue becomes whether there was manifest necessity for the declaration.

There is no question that the defendant did not expressly consent to the mistrial. Although defense counsel engaged in the discussion regarding a mistrial, he made suggestions as to what may be done to permit the trial to proceed. Under these circumstances, this Court cannot conclude that his participation in the conference in chambers gives rise to a finding of consent (cf., Matthews, supra). What the recreated record as set forth by the attorneys involved establishes is that Judge Head made no attempt to get the defendant's express consent; give a curative instruction to the jury and explain what transpired in the Family Court matter; permit the Assistant District Attorney to talk to the witness; thoroughly explore any possible way to continue with the trial; or grant a continuance to give the witness time to compose herself or to ascertain what legal options may have been available to her with respect to the Family Court matter. The fact the questions caused the witness to have a severe emotional response does not establish "manifest necessity." In essence, nothing was attempted before declaring a mistrial. The discretion possessed by Judge Head to grant a mistrial was clearly abused when the court summarily rejected defense counsel's request for a curative instruction (see, People v. Catten, supra). In the absence of any attempt to avoid a mistrial, this Court cannot conclude there was "manifest necessity" to grant the mistrial (Pronti, supra).

Accordingly, for the foregoing reasons, it is

ORDERED that the motion to dismiss the charges and bar the re-trial of defendant is granted.

Dated: August2007.

___________________________

Hon. Mark. L. Powers

Acting Supreme Court Justice