Opinion
November 7, 1966
In a proceeding under CPLR article 78 to prohibit a Justice of the Peace from taking further action in the prosecution of a traffic offense, on the ground of double jeopardy, the Justice of the Peace appeals from a judgment of the Supreme Court, Westchester County, entered May 5, 1965, which prohibited such further action by appellant and granted petitioner costs against appellant. Judgment reversed, on the law, and petition dismissed, without costs. No questions of fact have been considered. We are of the opinion that the discontinuance of the trial was brought about through petitioner's insistence upon a mode of trial that could not be adhered to at the time in question. He therefore waived his right to a claim of double jeopardy and is estopped from raising the issue at a continuation of the prosecution for the traffic offense (22 C.J.S., Criminal Law, § 261). We are of the further opinion that costs should not have been allowed against the public officer (cf. Rottkamp v. Young, 21 A.D.2d 373, affd. 15 N.Y.2d 831). Christ, Acting P.J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.