Opinion
Not published with other decisions of April, 1975, 47 A.D.2d 897. [Rep.
Proceeding pursuant to CPLR article 78 (1) to prohibit respondents from trying petitioner upon the second count of Indictment No. 72-00204 and (2) to dismiss said count on the ground that retrial of petitioner upon said count would violate his constitutional protection against double jeopardy and that CPL 310.60 (subd 2) requiring such retrial is unconstitutional. Application denied and proceeding dismissed, without costs. Temporary stay contained in order to show cause signed by Hon. Arthur D. Brennan is vacated. Rabin, Acting P.J., Martuscello, Cohalan, Brennan and Munder, JJ., concur.