People v. Perez

Judgment, Supreme Court, Bronx County (Ira Globerman, J.), rendered April 28, 1989, convicting defendant of manslaughter in the first degree and sentencing him to an indeterminate term of imprisonment of 4 to 12 years, unanimously modified, on the law, the facts and in the interest of justice, to reduce the sentence to a term of 2 to 6 years, and otherwise affirmed.

Absent a showing that the prosecutor deliberately provoked the mistrial, continued prosecution of the indictment following the mistrial was not barred by the Federal or State Constitutions. (Oregon v Kennedy, 456 US 667; People v Presley, 136 AD2d 949, lv denied 71 NY2d 1031.) Defendant urges that the prosecutor’s bad-faith effort to bring "forbidden evidence” to *655the jury’s attention in his opening remarks is sufficient grounds under the State Constitution to void his conviction, but the State Constitution affords defendant no broader protection than the Federal Constitution. Under both, "[rjeprosecution will be prohibited only if the misconduct was aimed at vitiating the protection of the double jeopardy clause to gain a more favorable opportunity to convict defendant.” (Matter of Potenza v Kane, 79 AD2d 467, 470, Iv denied 53 NY2d 606.)

We believe that the sentence was excessive to the extent indicated. Concur—Murphy, P. J., Carro, Kupferman, Asch and Kassal, JJ.