Opinion
2003-06615
September 15, 2003.
Proceeding pursuant to CPLR article 78 in the nature of a writ of prohibition to bar the retrial of the petitioners under Suffolk County Indictment No. 1112/01, on the ground that the retrial would violate the prohibition against double jeopardy.
Robert J. Del Col, Huntington, N.Y., for petitioners.
Eliot Spitzer, Attorney-General, New York, N.Y. (Melanie Jenkins and Robin A. Forshaw of counsel), respondent pro se.
Before: SANDRA J. FEUERSTEIN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, REINALDO E. RIVERA, JJ.
DECISION JUDGMENT
ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.
The petitioners failed to demonstrate a clear legal right to the extraordinary remedy of prohibition ( see Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569). The petitioners contend that the Attorney-General is barred from further prosecuting them on the ground of double jeopardy. However, since the petitioners requested the mistrial that was granted by the trial court, in order to establish that a retrial is barred on the ground of double jeopardy they must demonstrate that the prosecution deliberately provoked them into requesting a mistrial ( see Matter of Davis v. Brown, 87 N.Y.2d 626, 630; People v. Boone, 287 A.D.2d 461; Matter of McNepill v. Rooney, 277 A.D.2d 317; see also Oregon v. Kennedy, 456 U.S. 667, 675-676). The petitioners failed to meet this burden.
FEUERSTEIN, J.P., KRAUSMAN, GOLDSTEIN and RIVERA, JJ., concur.