Opinion
December 27, 2000.
Original Proceeding Pursuant to CPLR art 78.
PRESENT: GREEN, J. P., PINE, HAYES AND SCUDDER, JJ.
Proceeding unanimously dismissed without costs.
Memorandum:
Petitioner commenced this original proceeding pursuant to CPLR article 78 to prohibit his trial upon the charges in Ontario County indictment No. 99-10-213 on the ground that the prosecution of those charges is barred by the constitutional and statutory protections against double jeopardy ( see, US Const 5th Amend; N.Y. Const, art I, § 6; CPL 40.20). The trial of that indictment has been held and the proceeding therefore must be dismissed. "Prohibition is not now warranted where the trial sought to be prohibited has been held and where the issues tendered may be raised on the direct appeal following such trial" ( Matter of O'Neill v. Beisheim, 39 N.Y.2d 924, 925).