Opinion
November 15, 1995
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Pine, J.P., Fallon, Callahan, Davis and Boehm, JJ.
Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed, without a hearing, the petition seeking a writ of habeas corpus. We previously rejected the contention of relator that double jeopardy attached to bar his retrial ( Matter of Scott v D'Amico, 170 A.D.2d 1040, 1041, lv dismissed 77 N.Y.2d 987). The court erred, however, in stating that "relator's remedy would be to seek further review under article 440 in the trial court".