Del Atwell, East Hampton, for appellant.

James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.

Rose, J. Appeal from a judgment of the County Court of Sullivan County (McGuire, J.),rendered September 24, 2013, convicting defendant of the crimes of grand larceny in the thirddegree and falsifying business records in the first degree (16 counts).

Defendant was charged by indictment with grand larceny in the third degree (one count) andfalsifying business records in the first degree (16 counts) based upon the allegation that shesought and received $6,551.25 in unemployment benefits during a time when she was actuallyemployed and earning income. A nonjury trial ensued and, after the close of the proof, CountyCourt (LaBuda, J.) granted defendant's motion to dismiss the indictment in the interest of justice.Upon the People's appeal, this Court reversed and reinstated the indictment, finding "that CountyCourt improvidently exercised its discretion" (100 AD3d 1190, 1192 [2012]). Upon remittal,during a conference in County Court's chambers between the court, an Assistant District Attorneyand defendant's counsel, the court "dropped a copy of the [Appellate Division] decision on thetable" in front of defendant's counsel and stated, "How can you lose one of these things. Make amotion and I will dismiss it again." The People then moved for County Court to recuse itself,alleging that the court had shown bias and prejudged the case. Although County Court did notrefute the Assistant District Attorney's account of what had transpired at the conference, it deniedthe People's motion. One month later, however, County Court sua sponte reversed itsdetermination and the case was reassigned to a different County Judge.

After the case was reassigned, County Court (McGuire, J.) sought input from the parties[*2]regarding whether a new trial was warranted in light of thefact that the court did not have the benefit of viewing the witnesses' testimony. The People thenmoved for a mistrial and requested that County Court find that a manifest necessity existed sothat double jeopardy would not preclude a retrial. Alternatively, the People requested that CountyCourt render a verdict on the transcripts before it. Defendant opposed both options, assertingthat, on the one hand, County Court was precluded from rendering a verdict because it did nothear the testimony or view the witnesses and, on the other, double jeopardy precluded CountyCourt from declaring a mistrial and ordering a new trial without her consent, which she chose notto give. After numerous conferences with the parties regarding how to proceed, County Courtdetermined that there was no manifest necessity for a mistrial and, therefore, the only viableoption was for the court to render a verdict on the transcripts. Accordingly, County Courtreviewed the transcripts and found defendant guilty as charged. Defendant appeals.

Defendant now argues that County Court should have ordered a new trial and erred by notdoing so. For their part, the People agree that there should have been a new trial. They maintainthat there was a manifest necessity for County Court to declare a mistrial and, in light of that,they concede that a new trial is warranted.

It is well settled that the declaration of a mistrial without the defendant's consent bars a retrialon the grounds of double jeopardy unless "there was manifest necessity for the mistrial"(People v Catten, 69 NY2d 547, 554 [1987] [internal quotation marks and citationomitted]; see People v Ferguson, 67 NY2d 383, 388 [1986]; Matter of Enright vSiedlecki, 59 NY2d 195, 199 [1983]; Matter of Roey v Lopresto, 122 AD3d 929, 931 [2014]). As isrelevant here, Judiciary Law § 21 provides that a trial judge "shall not decide ortake part in the decision of a question, which was argued orally in the court, when he [or she] wasnot present and sitting therein as a judge." This statute has been interpreted to allow a substitutejudge to preside over an already-commenced jury trial or decide a purely legal question, but itprohibits a substitute judge from weighing testimony or making factual and credibilitydeterminations when he or she did not hear the witnesses' testimony firsthand (see People v Hampton, 21 NY3d277, 286-287 [2013]; People v Thompson, 90 NY2d 615, 621-622 [1997];People v Cameron, 194 AD2d 438, 438-439 [1993]; cf. State of New York v GeneralElec. Co., 215 AD2d 928, 928-929 [1995]).

Here, Judiciary Law § 21 precluded County Court from rendering a verdictinasmuch as this was a nonjury trial and, in deciding the ultimate issue of guilt, County Courtwas required to weigh testimony and make factual determinations based upon testimony it didnot hear and observe (compare People v Hampton, 21 NY3d at 287). In view of theimproper comments and actions of County Court (LaBuda, J.) that led to the case beingreassigned after the close of proof, coupled with the application of Judiciary Law§ 21, we find that a mistrial was manifestly necessary such that double jeopardydoes not bar a retrial. Accordingly, we conclude that a new trial is warranted.

Notwithstanding the foregoing, defendant also contends that the People failed to adducelegally sufficient evidence establishing each element of the crimes charged. This claim, ifmeritorious, would preclude defendant's retrial on a separate double jeopardy ground (see generally Matter of Suarez v Byrne,10 NY3d 523, 532-533 [2008]; People v Scerbo, 74 AD3d 1730, 1731 [2010], lv denied 15NY3d 757 [2010]). However, after reviewing the record in the light most favorable to the People,we are satisfied that, as a matter of law, there were sufficient facts adduced to permit a rationalfactfinder to "logically conclude that the People sustained [their] burden of proof" (People v Danielson, 9 NY3d 342,349 [2007]). Although defendant also raises a weight of the evidence challenge, we are unable toassess whether County Court (McGuire, J.), in the first instance, gave the evidence the weight itshould be accorded in light of our conclusion that it was precluded from determining defendant'sguilt (see generally People v [*3]Bleakley, 69 NY2d 490,495 [1987]). Finally, defendant's contention that the sentence is harsh and excessive need not bereached given that we are remitting the matter for a new trial.

Peters, P.J., Garry, Egan Jr. and Mulvey, JJ., concur. Ordered that the judgment is reversed,on the law, and matter remitted to the County Court of Sullivan County for a new trial.