
    The People of the State of New York, Respondent, v Octavio Lopez, Appellant.
    Supreme Court, Appellate Term, First Department,
    December 1, 1982
    APPEARANCES OF COUNSEL
    
      William E. Hellerstein and Ronna Brown for appellant. Robert M. Morgenthau, District Attorney {Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT ■

Per Curiam.

Judgment of conviction rendered June 11,1981 affirmed. The case is remitted to the Criminal Court, New York County, for proceedings to direct defendant to surrender himself to said court so that execution of the judgment may be commenced or resumed (CPL 460.50, subd 5).

The decision to grant or deny a motion for a mistrial is within a trial court’s discretion, and we may not interfere with that determination unless it amounts to a clear abuse of discretion (People v Ortiz, 54 NY2d. 288, 292). Midway through the first trial of this matter (tried to the court without a jury), before the People had rested, the court communicated to opposing counsel its view that the prosecution had not proven its case beyond a reasonable doubt, and also expressed concern that the defendant might lose his hack license if convicted. Upon application by the People for a mistrial, the Trial Judge acknowledged the impropriety of these remarks and felt constrained to excuse itself. In this posture, the declaration of a mistrial was necessary, appropriate and not an abuse of discretion. We therefore affirm, for the reasons stated in the opinion of Judge Fried (see People v Lopez, 106 Misc 2d 1015), the order denying defendant’s motion to dismiss on the ground that a retrial would subject him to double jeopardy.

We have examined defendant’s points as to the sufficiency of the evidence adduced at the second trial and as to claimed excessiveness of the sentence and find them lacking in merit.

Dudley, J.

(dissenting). I disagree with the majority and would reverse the judgment below and dismiss the information as there was no “manifest necessity” for the declaration of a mistrial. Consequently, defendant has twice been placed in jeopardy upon the same charge.

It is to be observed that the mistrial was declared based upon what the Trial Judge and counsel recalled having been said during an off-the-record conversation. The prosecuting attorney, defense counsel and the trial court all disagree upon what exactly transpired. However, it seems apparent from their conversations that the trial court did not espouse what may be termed a “ ‘theoretical danger of prejudice’ ” (Matter of Ferlito v Judges of County Ct., Suffolk County, 39 AD2d 17, 22, affd 31 NY2d 416). Therefore, upon application of the prosecuting attorney and over the objections of appellant, the trial court did grant a mistrial not because of any prejudice or bias, but, as it said, “to avoid impropriety”.

The Court of Appeals has recognized (supra, pp 419-420) “that the appearance of impropriety may sometimes be as devastating as the reality; but the mistrial procedure is not designed to afford an escape hatch from * * * an unpleasant duty. A mistrial * * * must have some basis of demonstrable substance”. I am not persuaded that the prosecution has established “manifest necessity” for termination of the first trial when the off-the-record conversations, as now reported on the record, reveal a conflict as to what factually was said. There remains a doubt on the facts of such conversations and where the appellant was then placed in jeopardy of conviction, he should be entitled to the benefit of that doubt and not be placed again in jeopardy in the absence of a demonstrable manifest necessity for the mistrial.

Hughes and Sullivan, JJ., concur; Dudley, P. J., dissents in a separate opinion.  