| Matter of DeFilippo v Rooney |
| 2007 NY Slip Op 09773 [46 AD3d 681] |
| December 11, 2007 |
| Appellate Division, Second Department |
| In the Matter of Gary DeFilippo, Petitioner, v Stephen J.Rooney et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Constantine A. Speres of counsel),for respondent Stephen J. Rooney. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Jeffrey Levitt and Frank Santarpia ofcounsel), respondent pro se.
Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to bar theretrial of the petitioner in an action entitled People v DeFilippo, pending in the SupremeCourt, Richmond County, under indictment No. 295/04, on the ground that retrial would violatehis right not to be twice placed in jeopardy for the same offense.
Adjudged that the petition is denied, and the proceeding is dismissed on the merits, withoutcosts or disbursements.
The petitioner failed to demonstrate a clear legal right to the extraordinary remedy ofprohibition based on his claim that the District Attorney of Richmond County is barred fromfurther prosecuting him on the ground that retrial would violate his right not to be twice placed injeopardy for the same offense (see Matter of Holtzman v Goldman, 71 NY2d 564, 569[1988]). Since the petitioner requested the mistrial that was granted by the trial court, he mustdemonstrate prosecutorial or judicial misconduct intended to provoke him into requesting amistrial in order to establish that a retrial is barred by the principles of double jeopardy (seeOregon v Kennedy, 456 US 667, 673-679 [1982]; see also Matter of MajesticCollectibles v Farneti, 308 AD2d 492 [2003]). The petitioner failed to meet this burden.[*2]
With respect to the petitioner's remaining claims, theremedies of prohibition and mandamus are not available, as the petitioner failed to demonstrate aclear legal right to the relief sought (see Matter of Holtzman v Goldman, 71 NY2d at569; Matter of Henry v Namm, 136 AD2d 585 [1988]; Matter of Justice v Kasler,122 AD2d 603 [1986]; Matter of Goetz v Crane, 111 AD2d 729, 730 [1985];Matter of Kopilas v People, 111 AD2d 174 [1985]). Schmidt, J.P., Rivera, Florio andBalkin, JJ., concur.