Opinion
November 3, 1994
Appeal from the Supreme Court, New York County (Harold Rothwax, J.).
There is no merit to defendant's claim that his right against double jeopardy was violated by the court's declaration of a mistrial, such declaration having been made before the entire jury panel had been selected and sworn, and thus before jeopardy had attached (People v. Singh, 190 A.D.2d 640, 640-641, lv denied 81 N.Y.2d 1020). In declaring a mistrial, the court correctly used the less stringent standard of whether "the ends of public justice would be otherwise defeated", rather than the "manifest necessity" standard, based upon the People's uncontroverted representations that material witnesses had gone into hiding and could not be found despite a diligent search (see, Matter of Brackley v. Donnelly, 53 A.D.2d 849, 850; see also, People v. Singh, supra, at 641).
Concur — Murphy, P.J., Rosenberger, Wallach, Kupferman and Asch, JJ.