Opinion
March 16, 1987
Appeal from the Supreme Court, Westchester County (McMahon, J.).
Ordered that the judgment is affirmed.
The statements made by the defendant's accomplices while in police custody were properly admitted into evidence at the defendant's trial as declarations against penal interest (see, People v. Shortridge, 65 N.Y.2d 309). Further, the admission of the statements under an exception to the hearsay rule when the accomplices refused to testify did not violate the defendant's constitutional right to confrontation (see, People v. Thomas, 68 N.Y.2d 194). The facts adduced at the trial established that the statements were reliable and of probative value. The statements did not mention the defendant's name or refer to his actions but were admitted solely for the purpose of establishing that more than one person participated in the crime. The trial court gave proper limiting instructions to the jury during the testimony and in its charge to minimize any prejudice to the defendant.
We do not agree with the defendant's contention that his retrial after he successfully moved for the declaration of a mistrial violated the prohibition against double jeopardy. Absent a showing that the prosecutor deliberately provoked the mistrial, a defendant's motion for a mistrial bars a double jeopardy claim (Oregon v. Kennedy, 456 U.S. 667; People v. Banks, 108 A.D.2d 1016). Here the trial court found that the error that had caused the mistrial, while attributable in part to the prosecutor, was inadvertent.
We find the defendant's remaining contentions to be without merit. Bracken, J.P., Weinstein, Spatt and Harwood, JJ., concur.