Ferguson, 67 N.Y.2d 383, 388, 502 N.Y.S.2d 972, 494 N.E.2d 77 ; Matter of Roey v. Lopresto, 122 A.D.3d 929, 931, 998 N.Y.S.2d 91 ). “Manifest necessity for a mistrial has been found where the court concludes, after conducting a ‘probing and tactful inquiry,’ that a juror is grossly unqualified to continue serving” and there are no alternates available (Matter of Robles v. Bamberger, 219 A.D.2d 243, 246, 640 N.Y.S.2d 882, quoting People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 ; see Matter of Enright v. Siedlecki, 59 N.Y.2d at 199–200, 464 N.Y.S.2d 418, 451 N.E.2d 176 ; People v. Paige, 134 A.D.3d 1048, 1053–1054, 22 N.Y.S.3d 220 ; CPL 270.35 ). Before declaring a mistrial, the court has “the duty to consider alternatives to a mistrial and to obtain enough information so that it is clear that a mistrial is actually necessary” (People v. Ferguson, 67 N.Y.2d at 388, 502 N.Y.S.2d 972, 494 N.E.2d 77 ; see Matter of Romero v. Justices of Supreme Ct., Queens County, 237 A.D.2d 292, 293, 654 N.Y.S.2d 803 ; Matter of Robles v. Bamberger, 219 A.D.2d at 246, 640 N.Y.S.2d 882 ). A trial court's determination that a mistrial is necessary is entitled to deference, as that court is in the best position to assess the circumstances (see Matter of Rivera v. Firetog, 11 N.Y.3d 501, 507, 872 N.Y.S.2d 401, 900 N.E.2d 952 ; People v. Ferguson, 67 N.Y.2d at 388, 502 N.Y.S.2d 972, 494 N.E.2d 77 ; Matter of Enright v. Siedlecki, 59 N.Y.2d at 201, 464 N.Y.S.2d 418, 451 N.E.2d 176 ; Matter of Romero v. Justices of Supreme Ct., Queens County, 237 A.D.2d at 293, 654 N.Y.S.2d 803 ; Matter of Robles v. Bamberger, 219 A.D.2d at 246, 640 N.Y.S.2d 882 ). Likewise, “the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected” will be accorded “the highest degree of respect” (Arizona v. Washington, 434 U.S. 497, 511, 98 S.Ct. 824, 54 L.Ed.2d 717 ; see Matter of Enright v. Siedlecki, 59 N.Y.2d at 200–201, 464 N.Y.S.2d 418, 451 N.E.2d 176 ; People v. Michael, 4
Here, the record does not show that either defendant consented to a mistrial without prejudice. Defendants initially made general motions for a mistrial, but on the next day they expressly limited their motions to requests for a mistrial with prejudice. Accordingly, when the court announced its ruling shortly afterwards, it should have obtained defendants' unequivocal consent before discharging the first jury or else have continued the trial with the same jury (Davis at 631; Matter of Romero v Justices of Supreme Ct., Queens County, 237 A.D.2d 292, 293 [2d Dept 1997], lv denied 89 N.Y.2d 817 [1997]). The retrial thus violated the constitutional prohibitions against double jeopardy, and these prohibitions require reversal of defendants' convictions and dismissal of the indictment (Davis at 630-32).
Here, the record does not show that either defendant consented to a mistrial without prejudice. Defendants initially made general motions for a mistrial, but on the next day they expressly limited their motions to requests for a mistrial with prejudice. Accordingly, when the court announced its ruling shortly afterwards, it should have obtained defendants’ unequivocal consent before discharging the first jury or else have continued the trial with the same jury ( Davis at 631, 641 N.Y.S.2d 819, 664 N.E.2d 884 ; Matter of Romero v. Justices of Supreme Ct., Queens County, 237 A.D.2d 292, 293, 654 N.Y.S.2d 803 [2d Dept. 1997], lv denied 89 N.Y.2d 817, 659 N.Y.S.2d 858, 681 N.E.2d 1305 [1997] ). The retrial thus violated the constitutional prohibitions against double jeopardy, and these prohibitions require reversal of defendants’ convictions and dismissal of the indictment ( Davis at 630–32, 641 N.Y.S.2d 819, 664 N.E.2d 884 ).
The decision whether to grant a mistrial lies within the sound discretion of the trial court, which is in the best position to determine whether a mistrial is necessary to protect the defendant's right to a fair trial (see People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794 ; People v. Reaves, 112 A.D.3d 746, 747, 976 N.Y.S.2d 228 ). Thus, the trial court's “evaluation of the likelihood that the impartiality of one or more jurors may have been affected” will be accorded “the highest degree of respect” (Arizona v. Washington, 434 U.S. at 511, 98 S.Ct. 824, 54 L.Ed.2d 717 ; see Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 200–201, 464 N.Y.S.2d 418, 451 N.E.2d 176 ; People v. Michael, 48 N.Y.2d 1, 9–10, 420 N.Y.S.2d 371, 394 N.E.2d 1134 ; Matter of Romero v. Justices of Supreme Ct., Queens County, 237 A.D.2d 292, 293, 654 N.Y.S.2d 803 ).Contrary to the view of our dissenting colleague, we find that any prejudice to the defendant was ameliorated when the Supreme Court sustained his objection to the improper testimony by the cooperating witness, struck that portion of his testimony, and provided a curative instruction, which the jury is presumed to have followed (see People v. Dubois, 116 A.D.3d 878, 983 N.Y.S.2d 734 ; People v. Miller, 78 A.D.3d 733, 734, 911 N.Y.S.2d 91 ).
The decision whether to grant a mistrial lies within the sound discretion of the trial court, which is in the best position to determine whether a mistrial is necessary to protect the defendant's right to a fair trial (see People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794 ; People v. Reaves, 112 A.D.3d 746, 747, 976 N.Y.S.2d 228 ). Thus, the trial court's “evaluation of the likelihood that the impartiality of one or more jurors may have been affected” will be accorded “the highest degree of respect” (Arizona v. Washington, 434 U.S. at 511, 98 S.Ct. 824, 54 L.Ed.2d 717 ; see Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 200–201, 464 N.Y.S.2d 418, 451 N.E.2d 176 ; People v. Michael, 48 N.Y.2d 1, 9–10, 420 N.Y.S.2d 371, 394 N.E.2d 1134 ; Matter of Romero v. Justices of Supreme Ct., Queens County, 237 A.D.2d 292, 293, 654 N.Y.S.2d 803 ).Contrary to the view of our dissenting colleague, we find that any prejudice to the defendant was ameliorated when the Supreme Court sustained his objection to the improper testimony by the cooperating witness, struck that portion of his testimony, and provided a curative instruction, which the jury is presumed to have followed (see People v. Dubois, 116 A.D.3d 878, 983 N.Y.S.2d 734 ; People v. Miller, 78 A.D.3d 733, 734, 911 N.Y.S.2d 91 ).
On appeal, the defendant contends that the Supreme Court erred in denying his motion for a mistrial. A defendant may limit his or her motion for a mistrial to one for a mistrial with prejudice and may withdraw the motion if complete relief is not granted (see Matter of Davis v. Brown, 87 N.Y.2d 626, 630–631, 641 N.Y.S.2d 819, 664 N.E.2d 884; Matter of Romero v. Justices of Supreme Ct., Queens County, 237 A.D.2d 292, 293, 654 N.Y.S.2d 803). In this case, the defendant's trial counsel made clear, via repeated and unequivocal use of the phrase “with prejudice,” that the defendant's motion was delimited in this fashion.
On appeal, the defendant contends that the Supreme Court erred in denying his motion for a mistrial. A defendant may limit his or her motion for a mistrial to one for a mistrial with prejudice and may withdraw the motion if complete relief is not granted (see Matter of Davis v Brown , 87 NY2d 626, 630-631; Matter of Romero v Justices of Supreme Ct., Queens County , 237 AD2d 292, 293). In this case, the defendant's trial counsel made clear, via repeated and unequivocal use of the phrase "with prejudice," that the defendant's motion was delimited in this fashion.
Under these circumstances, and considering the issues described in detail on the record regarding the jurors' ability to continue to attend court, the Supreme Court was justified in concluding that there was no acceptable alternative to a mistrial ( see Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 202, 464 N.Y.S.2d 418, 451 N.E.2d 176). Contrary to the petitioner's suggestion, the Supreme Court, under the particular circumstances presented here, could not reasonably be required to order a continuance for “at least” two months ( see Matter of Enright v. Siedlecki, 59 N.Y.2d at 202, 464 N.Y.S.2d 418, 451 N.E.2d 176; Matter of Romero v. Justices of Supreme Ct., Queens County, 237 A.D.2d 292, 293, 654 N.Y.S.2d 803; cf. People v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 394 N.E.2d 1134). Accordingly, the petition is denied and the proceeding is dismissed on the merits.
She was subsequently admitted into the hospital for an indeterminate period of time, and diagnosed as possibly having suffered a heart attack. Under these circumstances, it was proper for the trial court to have declared a mistrial over the defendant's objection ( see Matter of Kleigman v. Justices of Supreme Ct. Kings County, 285 A.D.2d 646; Matter of Romero v. Justices of Supreme Ct., Queens County, 237 A.D.2d 292). The defendant also contends that his constitutional right to present a defense was violated when the trial court precluded the defense counsel from testifying on his behalf at the third trial.
When the defendant objected to his counsel's motion, the court made a proper inquiry regarding the defense counsel's medical condition. Upon obtaining sufficient information regarding the severity and uncertainty of the defense counsel's condition, and after considering the alternatives, the trial court properly found that there was a manifest necessity for the mistrial ( see, Matter of Davis v. Brown, 87 N.Y.2d 626, 630; see also, People v. Holland, 248 A.D.2d 636; Matter of Romero v. Justices of Supreme Ct., 237 A.D.2d 292, 293-294). The defendant's remaining contentions are either unpreserved for appellate review or without merit.