| People v Adonis |
| 2014 NY Slip Op 05196 [119 AD3d 700] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Ariste Adonis, Appellant. |
Alvin L. Spitzer, Pearl River, N.Y., for appellant.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger and AnthonyR. Dellicarri of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County(Alfieri, Jr., J.), rendered September 14, 2009, convicting him of rape in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's first trial ended in a mistrial when the trial court dismissed a swornjuror on the ground that the juror was unqualified, and there was no alternate to replacethe juror (see CPL 270.35 [1]; 280.10 [3]). The defendant was tried again andconvicted of rape in the second degree.
On appeal, the defendant contends that double jeopardy principles barred his retrialbecause, notwithstanding his own counsel's request for a mistrial during his first trial, ademonstration of "manifest necessity" was required prior to the declaration of a mistrial,and no such "manifest necessity" was established. These contentions are unpreserved forappellate review (see CPL 470.05 [2]; People v Hambrick, 96 AD3d 972, 973 [2012]), and, in anyevent, without merit (see Matter of Davis v Brown, 87 NY2d 626, 630 [1996];People v Hambrick, 96 AD3d at 973). Further with respect to his double jeopardyclaim, the defendant specifically contends that the declaration of a mistrial in the firsttrial was not the product of manifest necessity because the trial court improperlyproceeded without selecting alternate jurors, and improperly dismissed the sworn juror.The defendant waived these contentions, as his counsel consented to proceeding withoutalternate jurors, and to the discharge of the sworn juror (see People v White, 53NY2d 721, 723 [1981]; Peoplev Colville, 79 AD3d 189, 198 [2010], revd on other grounds 20 NY3d20 [2012]). Mastro, J.P., Lott, Sgroi and Cohen, JJ., concur.