IN RE: Steve JOHNSON (2005)

Application pursuant to CPLR article 78 in the nature of prohibition seeking, on the ground of double jeopardy, to prevent retrial of petitioner under New York County Indictment 4042/02, unanimously denied, so much of the cross motion by respondent Justice to dismiss for failure to state a cause of action granted, and the proceeding dismissed, without costs.   The cross motion by respondent District Attorney and so much of the cross motion by respondent Justice to dismiss on grounds of untimeliness denied, without costs.

 Although this proceeding was commenced more than four months after the declaration of a mistrial, it is not time-barred, since the harm claimed, namely respondent Justice's assertion of authority to retry petitioner, is a continuing one (see Taub v. Committee on Professional Standards, 200 A.D.2d 74, 77-78, 612 N.Y.S.2d 272 [1994];  see also Siegel, N.Y. Prac. § 566, at 975-976 [4th ed.] ).

 Respondent Justice properly exercised his discretion when he declared a mistrial, after eleven days of deliberation, and after two jury notes indicating that the jury could not reach a unanimous verdict (see People v. Baptiste, 72 N.Y.2d 356, 360-361, 533 N.Y.S.2d 853, 530 N.E.2d 377 [1988];  Matter of Owen v. Stroebel, 65 N.Y.2d 658, 491 N.Y.S.2d 611, 481 N.E.2d 243 [1985], cert. denied 474 U.S. 994, 106 S.Ct. 408, 88 L.Ed.2d 358 [1985];  Matter of Plummer v. Rothwax, 63 N.Y.2d 243, 481 N.Y.S.2d 657, 471 N.E.2d 429 [1984] ).   The central issue in the case was whether petitioner had established his insanity defense, an issue that could easily cause a deadlock (see Owen, 65 N.Y.2d at 661, 491 N.Y.S.2d 611, 481 N.E.2d 243;  Plummer, 63 N.Y.2d at 251, 481 N.Y.S.2d 657, 471 N.E.2d 429). There is no reason to believe that the Allen charge that followed the first deadlock note brought the jury any closer to reaching a verdict.   The jury's second note indicated that it was unlikely to reach a verdict within a reasonable time and, under the circumstances of this case, asking it to continue deliberations could have had a coercive effect.   We have considered and rejected petitioner's remaining arguments.