648 N.Y.S.2d 30 | N.Y. App. Div. | 1996
—Order, Supreme Court, New York County (Bernard Fried, J.), entered October 12, 1993, which granted defendant’s motion to dismiss the indictment on double jeopardy grounds, unanimously affirmed.
Where the factual record demonstrates that the defense had neither an expectation that a mistrial was a possibility nor a meaningful opportunity to object, consent to the declaration of a mistrial will not be implied from the defendant’s silence (Matter of Guido v Berkman, 116 AD2d 439, 444; see, People v Ferguson, 67 NY2d 383, 389). Since the trial court failed "to consider alternatives to a mistrial and to obtain enough information so that it [was] clear that a mistrial [was] actually necessary” (People v Ferguson, supra, at 388), either at the time the juror refused to be sequestered or the next day, the need for a mistrial cannot be said to be due to " 'manifest necessity’ ” (People v Michael, 48 NY2d 1, 9, quoting United States v Perez, 9 Wheat [22 US] 579, 580). Concur—Murphy, P. J., Sullivan, Rubin, Ross and Nardelli, JJ.