232 A.D.2d 573 (1996)

649 N.Y.S.2d 443

The People of the State of New York, Respondent, v. William Boneta, Appellant

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

October 21, 1996

Ordered that the judgment is affirmed.

When a court grants a mistrial without the consent of or over the objection of the defendant, the double jeopardy provisions of the Federal and State Constitutions prohibit retrial for the same crime unless there was "manifest necessity" for the mistrial, or "the ends of public justice would otherwise be defeated" (United States v Perez, 9 Wheat [22 US] 579, 580; People v Ferguson, 67 N.Y.2d 383, 388). Here, the prosecutor made a sufficient showing that the refusal of its only nonpolice witness to testify, after he was twice threatened, could be factually attributed to the "defendant or some person acting on his behalf" (CPL 280.10 [2]; see, People v Paquette, 31 N.Y.2d 379, 380; Matter of Stanley v Justices of Supreme Ct., 214 A.D.2d 741; Matter of Grant v Kreindler, 162 A.D.2d 531).

Nor is there any merit to the defendant's claim that the testimony of this witness was merely corroborative. In view of the fact that the witness had been able to observe the alleged assault from a vantage point not available to any other witness, he possessed important evidence that no one else could offer (see, e.g., People v Allen, 86 N.Y.2d 599, 606-607).

Accordingly, under the circumstances, the court properly exercised its discretion in granting a mistrial (see, CPL 280.10 [2]).


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