Opinion
Decided September 16, 2008.
APPEAL, by permission of the Appellate Division of the Supreme Court in the Second Judicial Department, from a judgment of that Court, entered December 11, 2007, in a proceeding pursuant to CPLR article 78. The Appellate Division (1) denied a petition to bar retrial of the petitioner in a criminal action pending in Supreme Court, Richmond County on the ground that retrial would violate his right not to be twice placed in jeopardy for the same offense, and (2) dismissed the proceeding on the merits. The following question was certified by the Appellate Division: "Was the decision and judgment of this court, dated December 11, 2007, properly made?"
Matter of DeFilippo v Rooney, 46 AD3d 681, affirmed.
Hankin Handwerker Mazel LLP, New York City ( Michael Handwerker of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn ( Ann Bordley of counsel), for respondents.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The judgment of the Appellate Division should be affirmed, without costs, and the certified question not answered on the ground that it is unnecessary.
The Appellate Division correctly concluded that petitioner failed to meet his burden of demonstrating that the alleged prosecutorial misconduct was conducted in a deliberate attempt to provoke him to move for a mistrial ( see Matter of Gorghan v DeAngelis, 7 NY3d 470). The Appellate Division also properly concluded that petitioner failed to demonstrate a clear legal right to the remedy of prohibition ( see Matter of Rush v Mordue, 68 NY2d 348, 352; Matter of State of New York v King, 36 NY2d 59, 62).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), judgment affirmed, etc.