Opinion
February 25, 1972
Present — Del Vecchio, J.P., Witmer, Gabrielli, Cardamone and Henry, JJ.
Oral motion to add name of Earl Moody as a petitioner is granted. Petition unanimously dismissed, without costs. Memorandum: In this article 78 proceeding petitioners seek judgment prohibiting their ongoing trial of criminal charges against them under their indictments for assaults and robbery and other crimes growing out of a prison riot in the Auburn Correctional Facility at Auburn, New York on November 4, 1970. Petitioners allege that under administrative regulations of the Auburn Correctional Facility they were charged with these same acts and given hearings thereon in December, 1970, as a result of which three of them were confined to the segregation unit for a period of time and penalized by loss of a year's "good time", and that the other three were confined to the segregation unit and penalized to some extent by loss of "good time" until the expiration of the maximum terms of their respective sentences. Because of the administrative trials and punishments for these acts, petitioners allege that their subsequent indictments for such acts and the present trial thereof constitute double jeopardy. ¶ The administrative trials did not result in the imposition of additional sentences upon petitioners, but did result in their loss of some privileges under the sentences which they were serving. Such proceedings and punishments cannot form a predicate for the charge of double jeopardy upon the indictment and trial of petitioners for the alleged crimes which those acts constitute ( Matter of Escobar v. Roberts, 29 N.Y.2d 594; and see Matter of Barnes v. Tofany, 27 N.Y.2d 74, 78; Matter of Evans v. Monaghan, 306 N.Y. 312, 324; People ex rel. Natoli v. Lewis, 287 N.Y. 478; McGillicuddy v. Monaghan, 201 Misc. 650, 652, affd. 280 App. Div. 144; Matter of Brawer v. Criminal Ct., 47 Misc.2d 411, 412).