Hug Law, PLLC (Matthew C. Hug of counsel), for appellant. Nassau County District Attorney (Yael V. Levy and Mary Faldich of counsel), for respondent.

Appeal from judgments of the District Court of Nassau County, First District (Eric Bjorneby, J.), rendered June 24, 2016. The judgments convicted defendant, upon jury verdicts, of aggravated driving while intoxicated per se and common-law driving while intoxicated, respectively. The appeal brings up for review an order of that court dated July 16, 2015 (Andrew M. Engel, J.) which, upon a motion by defendant at an initial trial for a mistrial with prejudice, provided for a mistrial without prejudice.

ORDERED that the judgments of conviction are affirmed.

Insofar as is relevant to this appeal, defendant was charged in separate accusatory instruments with aggravated driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2-a] [a]) and common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). On March 24, 2015, prior to jury selection, the People advised the court that one of the witnesses, retired Police Officer Faltings, would not be available to testify until Tuesday, March 31, 2015, and requested that jury selection be postponed until Thursday, March 26, 2015. The court denied the People's request and proceeded with jury selection. After the jury was selected, the case was adjourned to Thursday, March 26, 2015. When the trial resumed, opening statements were [*2]delivered and the testimony of the first prosecution witness, Police Officer Winter, was completed. Thereafter, the People called Police Officer Shnayderman to testify. The People advised the court that retired Officer Faltings would be available to testify the next day, on Friday, March 27, 2015, but that he continued to have a scheduling conflict which would preclude him from testifying later than 2:45 p.m. that afternoon. When the court adjourned for the day on March 26, 2015, Officer Shnayderman's testimony had not concluded. The next day, at the People's request, Officer Faltings was permitted to testify out of turn. The court stated that once Officer Faltings took the stand, he would have to remain until his testimony was completed. The People indicated that they understood the court's instruction. After several hours of direct examination of Officer Faltings, the court recessed for lunch until 2 p.m. When the trial resumed, the People requested a continuance due to Officer Faltings's scheduling conflict and because his testimony could not be completed by 2:45 p.m. The District Court (Andrew M. Engel, J.) granted defendant's oral application for a mistrial. Prior to a retrial, defendant moved to have the mistrial declared to be with prejudice, and the District Court (Andrew M. Engel, J.) denied the motion.

After a second jury trial, defendant was convicted of aggravated driving while intoxicated per se and common-law driving while intoxicated. Defendant's sole issue on appeal is that the second trial was barred by the Double Jeopardy Clauses in the Fifth Amendment of the United States Constitution and in NY Constitution, article I, § 6.

"[W]here 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, 387-388 [1986] [citation omitted]). However, a narrow exception to this rule exists. When a prosecutor engages in prejudicial misconduct deliberately intended to provoke a mistrial motion, double jeopardy may bar retrial even though the defendant's own successful mistrial motion prevented the verdict (see Oregon v Kennedy, 456 US 667, 673-674 [1982]; Matter of DeFilippo v Rooney, 11 NY3d 775 [2008]; Matter of Gorghan v DeAngelis, 7 NY3d 470, 473 [2006]; Matter of Davis v Brown, 87 NY2d 626, 630 [1996]). The "misconduct must be so reprehensible as to justify the inference that it was done in bad faith for the purpose of provoking defendant's motion" (Matter of Potenza v Kane, 79 AD2d 467, 470 [1981]; see Gorghan v DeAngelis, 7 NY3d at 473-474).

In the instant case, the record does not support defendant's claim that the prosecutor engaged in prejudicial misconduct which was "so reprehensible as to justify the inference that it was done in bad faith for the purpose of provoking defendant's motion" (Matter of Potenza v Kane, 79 AD2d at 470; see Gorghan v DeAngelis, 7 NY3d at 473-474). In our view, the record merely reveals the prosecutor's efforts to obtain a conviction by seeking to secure the availability of their witness despite the witnesses's minor scheduling conflicts with the court's calendar. Consequently, there was no bar to a retrial on the ground of double jeopardy (see Gorghan v DeAngelis, 7 NY3d at 473-474; People v Ferguson, 67 NY2d at 388; Matter of Potenza v Kane, 79 AD2d at 470-471).

Accordingly, the judgments of conviction are affirmed.

MARANO, P.J., GARGUILO and BRANDS, JJ., concur.