Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.
The petitioner claims that a retrial under Indictment No. 3592/94 is barred because his motion for a mistrial at the prior trial was provoked by deliberate prosecutorial misconduct. We disagree. Our review of the record reveals that the prosecutor's conduct was not intended to provoke the petitioner to move for a mistrial (see, Oregon v Kennedy, 456 U.S. 667; see also, Matter of Roman v Brown, 175 A.D.2d 899).
We reject the petitioner's contention that the mistrial was granted without his consent and over his objection (see generally, People v Ferguson, 67 N.Y.2d 383). While the petitioner made a request for a mistrial with prejudice, he waited until after the court ordered a mistrial without prejudice to inform the court that he did not want a mistrial unless it was with prejudice (cf., United States v Huang, 960 F.2d 1128). At that point it was within the discretion of the trial court to deny the petitioner's motion to withdraw his request for a mistrial (see, People v Catten, 69 N.Y.2d 547), and the trial court did not improvidently exercise its discretion. Balletta, J.P., Thompson, Santucci, Altman and Hart, JJ., concur.