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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 190
In the Matter of Catherine A.
Gorman,
            Appellant,
        v.
Kathleen M. Rice, &c.,
            Respondent,
et al.,
            Respondent.



          Harry H. Kutner, Jr., for appellant.
          Barbara Kornblau, for respondent Rice.




MEMORANDUM:
          The order of the Appellate Division should be affirmed,
without costs.
          During the late afternoon of July 8, 2006, defendant
Catherine A. Gorman was driving a car on the Meadowbrook Parkway

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with two 10-year old girls as her passengers.   As defendant
attempted to exit the parkway, her car veered out of control and
flew in front of another vehicle (one of two or three vehicles
driven by members of a family on an outing to a local fair) as
she shot over the exit ramp and plowed through a wooded area,
ultimately coming to rest on a fence that separated the wooded
area from a parking lot.   The motorists in the caravan stopped to
help; one of these witnesses detected the odor of alcohol
emanating from the front seat of defendant's car; another noticed
that defendant smelled of alcohol and that her eyes were watery
and bloodshot.    Defendant said that she was all right and asked
that the police not be notified.   When defendant learned that
someone in the family party had already called the police, she
began walking away from the accident scene, along the side of the
parkway, with the two young girls in tow.
          The police intercepted defendant and the two children
at an exit ramp perhaps one-quarter of a mile distant from the
accident scene.   Based on defendant's appearance, slurred speech,
answers to questions, the odor of alcohol and her performance on
standard field sobriety tests, the police concluded that she was
intoxicated.   Defendant was arrested and brought to the police
station, where a breathalyzer test showed a blood alcohol content
(BAC) of 0.25 percent.   Defendant was charged with violating
Vehicle and Traffic Law §§ 1192 (2) (per se driving while
intoxicated [BAC of 0.08 percent or more]), (3) (driving while


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intoxicated); 1128 (a) (moving from lane unsafely); and Penal Law
§ 260.10 (endangering the welfare of a child) (two counts).
           During defendant's second jury trial in District Court
in October 2009 (the first ended in a mistrial), defense counsel
announced, outside the presence of the jury, that he intended to
file a complaint against the judge for alleged pro-prosecution
rulings.   The judge stated, "I'm declaring a mistrial based on
the threats of counsel to file a complaint against me.   I'll be
back in five minutes."    When the judge returned, he noted that
"[b]efore we broke, I declared a mistrial.    I reviewed the
record, and it is clear that [defense] counsel said that my
conduct verged on needing a complaint being filed.    That being
said, I am unable to preside over this trial."    The judge then
remarked to defense counsel "I'm assuming . . . that you agree
that . . . I should not be able to preside over this trial," to
which defense counsel responded "yes, sir."   The court continued
that "on consent, I'm going to declare a mistrial."   Defense
counsel then objected that he was "not consenting to a mistrial."
           Further discussion ensued among the court and the
parties, and the prosecutor suggested that the trial be adjourned
to the following week to give everyone "a chance to cool down" so
that "[m]aybe [they could] continue the trial."   The judge
responded "Well, I think . . . [it] is really up to the defendant
and [defense counsel]."   The colloquy continued as follows:
           "THE COURT: I just want it to be clear on the record.
           When I came back, I asked defense counsel that based on

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             his comments if it was his opinion that I would not be
             able to preside over this trial, and your response was
             yes. Is that your opinion?
             "[DEFENSE COUNSEL]:   (No audible response).
             "THE COURT:   I'm not trying to put you on the spot.
             "[DEFENSE COUNSEL]:   I have to be.
             "THE COURT: You were the one who told me that you
             wanted -- you were going to file a complaint against
             me, and you're unhappy with the way I am presiding over
             the trial.
             "If you believe that my conduct has been so bad it
             warrants a complaint to the judiciary committee, then
             so be it, then you can do it, and I'll recuse myself.
             "But I also don't want to be in a position where I'm
             going to preside over this trial, and then when it's
             over, you go to the judiciary committee anyway.
             "[DEFENSE COUNSEL]: I have never done that in 36
             years, 35 and a half years.
             "THE COURT: So I think what I'm going to do is I'm
             going to take five minutes, and you can discuss with
             your client what you want to do. If you and your
             client decide you want me to preside over this trial,
             then I'll reconsider it.
             "[DEFENSE COUNSEL]: Okay, Judge.      Thank you.    Thank
             you for the opportunity."
             After this recess, defense counsel stated that upon
speaking with his client and her family and "weighing all the
options," they had decided "regrettably . . . to go with the
mistrial."    The judge then declared a mistrial "at the request of
[defendant]," discharged the jury and recused himself.          A month
later, defendant moved to dismiss the accusatory instrument,
principally on double jeopardy grounds.     On April 19, 2010, the
District Court Judge assigned the motion rejected defendant's

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double jeopardy claim, prompting her to bring this CPLR article
78 proceeding to prohibit a retrial.
          On August 16, 2010, Supreme Court granted defendant's
CPLR article 78 petition and barred "any prosecution of
[defendant] on the [specified] charges . . . as constituting a
violation of the double jeopardy protection" (29 Misc 3d 610, 618
[Nassau County 2010]).   The People timely moved for reargument.
After several adjournments upon the request of the parties and
oral argument, Supreme Court, by decision dated February 23,
2012, granted reargument and adhered to its original decision.
The People appealed, and on May 22, 2013, the Appellate Division
unanimously reversed, denied the petition and dismissed the
proceeding (106 AD3d 1000 [2d Dept 2013]).
          The court held that "Supreme Court erred in determining
that the District Court did not retain the discretion to rescind
its previous declaration of a mistrial prior to the discharge of
the jury" (id. at 1001).   And in this case, "the District Court's
initial declaration of a mistrial, made without . . .
[defendant's] consent, was rescinded and, thereafter, a mistrial
was declared upon . . . [defendant's] consent" (id.).     After the
same panel denied defendant's motion for reargument and leave to
appeal to us, she appealed as of right pursuant to CPLR 5601 (b)
(1) (substantial constitutional question directly involved), or,
alternatively, sought leave to appeal.   On October 22, 2013, we
denied the motion for leave to appeal as unnecessary, and granted


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defendant a stay (22 NY3d 948 [2013]).         We now affirm for
substantially the reasons stated by the Appellate Division.
            Until the jury is discharged, a court may rescind its
previous declaration of mistrial (see People v Dawkins, 82 NY2d
226 [1993]).      Defendant argues that in this case the trial judge
never formally rescinded his initial mistrial ruling, and so
whether or not she indicated her consent after that ruling is
irrelevant.    Certainly, the judge never expressly said "I rescind
my order declaring a mistrial."      But we have never required any
particular language to be used to retract a prior order.            Here,
the record makes clear that the trial judge was leaving the
mistrial decision up to defendant.         Because she decided to "go
with a mistrial," and thus consented to it, her double jeopardy
claim fails.      Indeed, if defendant were correct that the judge
never rescinded his initial mistrial order, there would have been
no need for him to afford defense counsel and defendant time to
consult about how they wanted to proceed.          Concomitantly,
immediately prior to the recess to allow for this consultation,
the judge explicitly declared that it was "up to the defendant
and [defense counsel]" to decide whether or not they wanted to
continue with the trial.
*   *   *     *    *   *   *   *    *      *   *   *   *   *   *     *      *
Order affirmed, without costs, in a memorandum. Chief Judge
Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and
Abdus-Salaam concur.

Decided November 18, 2014

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