You are here: / / MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL OVER DEFENDANT’S...

MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL OVER DEFENDANT’S OBJECTION, COMPLAINANT IN THIS SEX OFFENSE TRIAL COULD NOT BE LOCATED (SECOND DEPT).

The Second Department determined manifest necessity justified the declaration of the mistrial over the defendant’s objection because a crucial prosecution witness (the complainant in a sex offense prosecution) could not be located. Although there was no evidence the defendant caused the witness’s unavailability, there was evidence the witness’s mother was responsible:

​

The petitioner was charged with course of sexual conduct against a child in the second degree and predatory sexual assault against a child, and the case proceeded to trial. After the jury was sworn, but before opening statements were made and before any testimony was offered, the prosecutor requested three consecutive continuances, as the complainant and her mother could not be located . * * *

​

When a mistrial is granted over the defendant’s objection or without the defendant’s consent, a retrial is precluded unless ” there was manifest necessity for the mistrial or the ends of public justice would be defeated'” … . ” Manifest necessity'” means a ” high degree of necessity'” based on reasons that are ” actual and substantial'”… . Moreover, before declaring a mistrial, a court must explore all appropriate alternatives and must provide a sufficient basis in the record for resorting to this “drastic measure” … . Where a mistrial is premised upon the claimed unavailability of crucial prosecution evidence, including witnesses, the validity of that claim is subject to the “strictest scrutiny” since a prosecutor is not entitled to a mistrial merely to gain a more favorable opportunity to convict … .

Here, the prosecutor made a sufficient showing that the unavailability of the 13-year-old complainant, who had absconded to an unknown location with her mother, could be factually attributed to some person acting on the petitioner’s behalf … . Moreover, the trial court properly gave the prosecutor additional time to find the witness and considered other alternatives, including the prosecutor’s application for leave to introduce at the trial the witness’s grand jury testimony.  Matter of Palacios v Singas, 2017 NY Slip Op 06652, Second Dept 9-27-17

 

CRIMINAL LAW (MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL OVER DEFENDANT’S OBJECTION, COMPLAINANT IN THIS SEX OFFENSE TRIAL COULD NOT BE LOCATED (SECOND DEPT))/MISTRIAL (CRIMINAL LAW, MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL OVER DEFENDANT’S OBJECTION, COMPLAINANT IN THIS SEX OFFENSE TRIAL COULD NOT BE LOCATED (SECOND DEPT))/MANIFEST NECESSITY (MISTRIAL, CRIMINAL LAW, MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL OVER DEFENDANT’S OBJECTION, COMPLAINANT IN THIS SEX OFFENSE TRIAL COULD NOT BE LOCATED (SECOND DEPT))

You might also like
CALCULATION OF ENHANCED EARNING CAPACITY STEMMING FROM A DEGREE EARNED DURING MARRIAGE IN THE CONTEXT OF ALLOCATING MARITAL PROPERTY IN A DIVORCE PROCEEDING EXPLAINED (SECOND DEPT).
ALTHOUGH DEFENDANT DRIVER HAD THE RIGHT-OF-WAY AND PLAINTIFF APPARENTLY PULLED OUT OF A DRIVEWAY IN FRONT OF DEFENDANT, PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT KEPT A PROPER LOOKOUT (SECOND DEPT). ​
SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT).
PLAINTIFF BANK NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE IT FAILED TO DEMONSTRATE COMPLIANCE WITH RPAPL 1304, A CONDITION PRECEDENT; DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE HE DID NOT DEMONSTRATE THE BANK FAILED TO COMPLY WITH RPAPL 1304 (SECOND DEPT).
DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).
BANK DID NOT DEMONSTRATE IT ACTED IN ACCORDANCE WITH GENERAL BANKING RULES OR PRACTICES WHEN IT CASHED FORGED CHECKS, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENCE ACTION PROPERLY DENIED (SECOND DEPT),
HERE THE RIGHT OF FIRST REFUSAL IN THE ORIGINAL DEED DIVIDING THE PROPERTY INTO EIGHT PARTS WAS A VALID DEFENSE TO THE PARTITION ACTION; HOWEVER, IF DEEMED TO RUN WITH THE LAND, THE RIGHT OF FIRST REFUSAL VIOLATED THE RULE AGAINST PERPETUITIES (SECOND DEPT).
IF THE STATUTE OF LIMITATIONS RUNS OUT ON A SATURDAY, PLAINTIFF HAS UNTIL THE FOLLOWING MONDAY TO COMMENCE THE ACTION (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CORPORATE OFFICER COULD BE PERSONALLY LIABLE FOR CONVERSION AND FRAUD, CAUSES... DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE...