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))