Opinion
May 11, 1990
Appeal from the Chautauqua County Court, Adams, J.
Present — Dillon, P.J., Doerr, Boomer, Davis, and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: Defendant asserts that double jeopardy attached to bar his retrial. A motion to dismiss the indictment pursuant to CPL 210.20 (1) (e) is an appropriate remedy to assert a claim that a retrial would subject defendant to double jeopardy (see, Matter of Enright v Siedlecki, 59 N.Y.2d 195, 198, n 1; People v. Gentile, 96 A.D.2d 950, 951). The motion "must be made in writing and upon reasonable notice to the people" (CPL 210.45). An oral application is not appropriate (People v. Lawrence, 64 N.Y.2d 200, 203). Here, defendant's failure to comply with the statutory procedure resulted in a waiver of his statutory double jeopardy claim (see, People v. Lawrence, supra; People v. Key, 45 N.Y.2d 111, 116).
Turning to defendant's constitutional double jeopardy claim (see, US Const 5th Amend; N Y Const, art I, § 6; see also, People v. Michael, 48 N.Y.2d 1, 5-7), on the record before us, we conclude that the trial court did not abuse its discretion in declaring a mistrial, over defendant's objections, on the ground of "manifest necessity" (United States v. Perez, 9 Wheat [22 US] 579, 580; Hall v. Potoker, 49 N.Y.2d 501, 505; People v. Gentile, 96 A.D.2d 950, 951, supra). The unavailability of a critical prosecution witness resulted from an unforeseeable contingency not within the control of the People (see, Hall v. Potoker, supra, at 506).