Opinion
May 5, 1960
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeal from an order of a Justice of the Supreme Court which denied an application for a writ of habeas corpus. A jury was impaneled for the trial of relator for certain felonies. After the jury had been sworn and before any other proceedings were had, the Trial Judge declared a mistrial, with the consent of relator's attorney and the District Attorney, and discharged the jury. Thereafter relator was tried before another jury and convicted. His theory that he was twice put in jeopardy and so entitled to be released is without merit. The rule is that "a prisoner is placed in jeopardy when he has been arraigned and pleaded to a valid charge, a jury has been examined and sworn, and evidence given." ( People ex rel. Meyer v. Warden, 269 N.Y. 426, 428; People v. Clark, 3 A.D.2d 700.) Relator asserts that he was not in the courtroom when the mistrial was ordered but if such is the fact it is in no way relevant to the issue of double jeopardy which arose subsequently, if at all. Further, of course, neither the consent nor approval of relator or of his attorney was in any way necessary to enable the trial court to order a mistrial. Order unanimously affirmed, without costs.