UPON reading and filing the within Notice of Motion, dated February 24, 2016, submitted by Steven K. Patterson, Esq., attorney for defendant, the Answer to Defendant's Motion of Sara J. Thompson, Esq., Senior Assistant District Attorney for the County of Dutchess, dated March 7, 2016, and upon all the papers and proceedings had herein, defendant's application is decided as follows:

The defendant moves for an Order pursuant to CPL §§ 210.20(1)(b) and 40.20 and the provisions of the United States and New York State Constitutions dismissing the Indictment on the ground that the prosecution is barred by the prohibition against double jeopardy.

The facts underlying this application are not in dispute. Defendant is charged with Predatory Sexual Assault Against a Child (Penal Law §130.96) and related offenses, and was represented by the Dutchess County Public Defender. On September 9, 2015, jury selection commenced before the Hon. Stephen L. Greller, J.C.C., and continued on September 10 and September 11, 2015. On September 11, 2015, prior to the completion of jury selection, Chief Assistant Public Defender George Hazel met with Judge Greller, in camera, and disclosed to Judge Greller that a person he identified as "John Doe", who, at the time and in the past, was represented by the Dutchess County Public Defender, approached and disclosed to him that he had evidence incriminating defendant. Judge Greller immediately assigned an attorney to [*2]represent "John Doe". The parties then resumed and completed jury selection. A jury was sworn at approximately 4:35 P.M. on Friday, September 11, 2015. On Monday, September 14, 2015, "John Doe" and his attorney met with representatives of the District Attorney's Office. On September 15, 2015, the District Attorney reported to Judge Greller that "John Doe" would be called as a witness to testify against defendant. Judge Greller then determined that because the Public Defender's Office currently, and in the past, represented "John Doe", it would be a conflict of interest for the Dutchess County Public Defender to continue to represent defendant. Assistant Public Defenders John Evans, Esq. and Beth Gibson, Esq., and the Assistant District Attorney agreed. Accordingly, the Court disqualified the Public Defender from representing defendant (See, Transcript of Proceedings of September 15, 2015, page 7, lines 17-21). Judge Greller then determined that it was physically impossible to proceed to trial and, sua sponte, declared a mistrial (See, Transcript of Proceedings of September 15, 2015, page 9, lines 15-21). The Public Defender, having been disqualified, neither objected nor consented to the mistrial (See, Transcript of Proceedings of September 15, 2015, page 13, lines 7-15). Judge Greller assigned a new lawyer, Stephen K. Patterson, Esq., to represent defendant. Mr. Patterson had not met with defendant before the mistrial was declared. Defendant now moves to dismiss the Indictment on the ground that its prosecution is barred by the Double Jeopardy clauses of the Untied States and New York State Constitutions.

Where a mistrial is granted without the consent or over the objection of a defendant, retrial is barred by the double jeopardy clause unless there was "manifest necessity" for the mistrial, or the ends of public justice would otherwise be defeated (See, People v Ferguson, 67 NY2d 383, Matter of Enright v Siedlecki, 59 NY2d 195). "Manifest necessity" is present when there is a high degree of necessity based on reasons that are actual and substantial (See, Matter of Roey v Lopresto, 127 AD3d 929). A trial judge is in the best position to determine whether a mistrial is in fact necessary in a particular case and deference is to be accorded the trial judge's decision to declare a mistrial (See, People v Michael, 48 NY2d 1).

In this case, defendant is charged with a Class A-II Felony, punishable by a minimum sentence of 10 years to life in state prison and a maximum sentence of 25 years to life. The Indictment alleges that defendant engaged in a sexual relationship with his biological daughter in different locations over a six-year period. According to documents submitted to the Court, the District Attorney intended to call an expert witness to testify concerning Child Sex Abuse Accommodation Syndrome. In addition, prosecution evidence would have included a lengthy police-arranged recorded telephone conversation between the defendant and the alleged victim.

Under these circumstances, the decision to assign a new attorney to represent defendant and declare a mistrial solely was made for defendant's benefit and to protect defendant's right to proceed with counsel who had an adequate time to prepare for trial. It should be noted that defendant's current attorney, Stephen K. Patterson, assigned by the Court on the day the mistrial was declared, did not represent to the Court either at the time of the assignment or in his motion papers, that he was prepared and willing to proceed to trial with the empaneled jury. As such, there was a manifest necessity for the mistrial. Therefore, the continued prosecution is not barred by the prohibition against double jeopardy.

Further, and contrary to defendant's contention, the Court had no reasonable available options. In light of the clear and obvious conflict and disqualification, as acknowledged at the [*3]time by the Public Defender, the Court had no obligation to inquire of the unrepresented defendant to obtain defendant's waiver of the conflict nor did it have the authority to order the District Attorney to try the case without the newly obtained witness, as suggested by defendant's attorney.

Finally, defendant's contention that defendant was entitled to be present and given an opportunity to oppose the mistrial is without merit. Contrary to defendant's claim, a defendant's personal consent or presence in Court was not required (See, People v Ferguson, supra, at p. 81). This is particularly true where, as here, defendant previously was represented by counsel at all stages of the proceeding.

Based on the foregoing, defendant's motion to dismiss is denied.

The aforesaid constitutes the Decision and Order of the Court.