Can a defendant bring a motion for a retrial for a charge of sexual assault at a second trial, even though the first trial has been declared a mistrial?

Defendant's central assertion is that his second trial transgressed constitutional double jeopardy principles, even though the verdict in the first trial was ultimately vacated by the trial court, because the prosecutor's misconduct in the first trial left him with no alternative but to move for a mistrial. Appellant's proposed rule--acknowledged as a significant change in approach--would bar retrials, even though the mistrial motion was not resolved and the case proceeded to verdict before the selected jury, whenever the trial conduct of prosecutors is grossly and fundamentally prejudicial to defendant's fair trial rights. The People essentially urge adoption of the Federal rule, under which no double jeopardy bar drops unless the prosecutorial misconduct is intended to provoke a mistrial (Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416). In the context of this case, we need not depart from the general analytical mode for deciding such cases, because under any theory in this case defendant is not entitled to double jeopardy relief.

The Double Jeopardy Clause protects a defendant's right, "after the jury has been impaneled and sworn, * * * ' "to have [the] trial completed by a particular tribunal" ' " (People v. Catten, 69 N.Y.2d 547, 554, 516 N.Y.S.2d 186, 508 N.E.2d 920). Generally, this constitutional right is not implicated where, as here, a defendant receives what the particular right confers, i.e., a jury verdict by the "particular tribunal," even though that is subsequently vacated.