214 A.D.2d 741 (1995)

625 N.Y.S.2d 622

In the Matter of Ronald Stanley, Petitioner, v. Justices of the Supreme Court et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Second Department.

April 24, 1995

Adjudged that the petition is denied, without costs or disbursements, and the proceeding is dismissed on the merits.

We reject the petitioner's contentions that there was no manifest necessity for the mistrial that was granted by the trial court and that the petitioner is, therefore, entitled to the protection of the Double Jeopardy Clauses of the Federal and State Constitutions (see, People v Ferguson, 67 N.Y.2d 383). The decision whether to abort a criminal trial must rest, in the first instance, in the sound discretion of the trial court (see, Hall v Potoker, 49 N.Y.2d 501; People v Michael, 48 N.Y.2d 1, 9). The trial court in the petitioner's case properly exercised its discretion by granting a mistrial, over the petitioner's objection, due to the unavailability of a critical, prosecution eyewitness (see, Hall v Potoker, supra; Matter of Grant v Kreindler, 162 A.D.2d 531).


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