Opinion
June 12, 1995
Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.
"Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court — in cases where judicial authority is challenged — acts or threatens to act either without jurisdiction or in excess of its authorized powers" (Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569; see, Matter of Rush v. Mordue, 68 N.Y.2d 348, 352). The petitioner has failed to demonstrate a clear legal right to the relief sought. The record does not support the petitioner's claim that the prosecutor acted with the intent to provoke a mistrial and, therefore, there is no bar to a retrial on the ground of double jeopardy (see, People v. Ferguson, 67 N.Y.2d 383, 388; People v. Adames, 83 N.Y.2d 89; People v. Mitchell, 197 A.D.2d 709). Mangano, P.J., O'Brien, Ritter, Pizzuto and Florio, JJ., concur.