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 U.S. 667; People v Presley, 136 A.D.2d 949, lv denied 71 N.Y.2d 1031.) Defendant urges that the prosecutor's bad-faith effort to bring "forbidden evidence" to the 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, "[r]eprosecution 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 A.D.2d 467, 470, lv denied 53 N.Y.2d 606.)
We believe that the sentence was excessive to the extent indicated.
Concur — Murphy, P.J., Carro, Kupferman, Asch and Kassal, JJ.