The Second Department determined that a trial judge can rescind a mistrial declaration and noted that a mistrial granted with the consent of the defendant does not bar retrial:
When a mistrial is declared in a criminal case without the consent, or over the objection, of the defendant, the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution and in section 6 of article I of the New York Constitution precludes a retrial for the same offense unless ” there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated'”…. Conversely, when a defendant requests or consents to a mistrial, double jeopardy typically does not bar a retrial ….
The mere declaration of a mistrial does not terminate a criminal trial and thereby divest the trial court of the authority to rescind the declaration…. Accordingly, the Supreme Court erred in determining that the District Court did not retain the discretion to rescind its previous declaration of a mistrial prior to the discharge of the jury. Moreover, the District Court’s initial declaration of a mistrial, made without the petitioner’s consent, was rescinded and, thereafter, a mistrial was declared upon the petitioner’s consent. Accordingly, the Supreme Court erred in granting the petition to the extent that it did, and in barring a retrial of the petitioner on the ground of double jeopardy. Matter of Gorman v Rice, 2013 NY Slip Op 03673, 2nd Dept, 5-22-13