| Matter of DiSimone v Adler |
| 2009 NY Slip Op 08008 [67 AD3d 677] |
| November 4, 2009 |
| Appellate Division, Second Department |
| In the Matter of Anthony DiSimone, Petitioner, v Lester B.Adler et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Susan Anspach of counsel), forrespondent Lester B. Adler. Janet DiFiore, District Attorney, White Plains, N.Y. (Valerie A. Livingston and RichardLongworth Hecht of counsel), respondent pro se.
Proceeding pursuant to CPLR article 78 in the nature of prohibition to bar the retrial of thepetitioner in a criminal action entitled People v DiSimone, pending in the SupremeCourt, Westchester County, under indictment No. 97-1782, on the ground that retrial wouldviolate his constitutional 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 contention that retrying him on Westchester County indictment No.97-1782 would violate his constitutional right not to be twice placed in jeopardy for the sameoffense (see Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988]). Generally, theconstitutional protection against double jeopardy does not bar the retrial of a defendant who hasobtained habeas corpus relief (cf. United States v Tateo, 377 US 463 [1964]; cf. Matter of Suarez v Byrne, 10 NY3d523, 532-533 [2008], citing United States v Ball, 163 US 662, 671-672 [1896]). Asrelevant to the instant matter, an exception to the general rule exists where habeas corpus reliefwas obtained on the ground that the evidence was legally insufficient (cf. United States vTateo, 377 US at 465; People vBiggs, 1 NY3d 225, 229 [2003]; People v Kurtz, 51 NY2d 380, 386 [1980],cert denied 451 US 911 [1981]). However, obtaining habeas corpus relief on a groundother than legal insufficiency is not a determination that the government failed to prove its caseand it "implies nothing with respect to the guilt or innocence of the defendant" (Burks vUnited States, 437 US 1, 15 [1978]).
Here, after the first trial, the petitioner was acquitted of intentional murder and convicted ofdepraved indifference murder. Consequently, it is undisputed that he cannot be retried forintentional murder on double jeopardy grounds. However, with regard to his conviction fordepraved indifference murder, the United States Court of Appeals for the Second Circuitaffirmed only so much of the District Court's order as granted habeas corpus relief vacating thepetitioner's conviction for [*2]depraved indifference murder dueto a Brady violation (see Brady v Maryland, 373 US 83 [1963]), not upon adetermination that the evidence was legally insufficient (see DiSimone v Phillips, 518F3d 124, 126 [2008]). Although the District Court also barred retrial on double jeopardygrounds, the United States Court of Appeals for the Second Circuit vacated that portion of theDistrict Court's order. In this regard, the United States Court of Appeals for the Second Circuitdetermined that the District Court had exceeded its authority and expressly stated that "the grantof habeas corpus relief vacating DiSimone's conviction was not predicated on a ground thatinevitably precludes retrial. It was grounded on the State's failure to turn over exculpatoryevidence in violation of Brady. A Brady violation . . . is remediableupon a future trial" (DiSimone v Phillips, 518 F3d at 127-128). Therefore, the retrial ofthe petitioner for depraved indifference murder would not violate the constitutional prohibitionagainst double jeopardy.
With respect to the petitioner's remaining claims, the remedy of prohibition is not availableto obtain appellate review of the legal sufficiency of evidence (see Rafferty v Owens, 82AD2d 582, 585 [1981]). In the event he is convicted after a second trial, the petitioner has anadequate remedy at law since he can raise on direct appeal the issue of the sufficiency of theevidence (see Rafferty v Owens, 82 AD2d at 585; see also La Rocca v Lane, 37NY2d 575, 579 [1975], cert denied 424 US 968 [1976]; Matter of State of New Yorkv King, 36 NY2d 59, 62 [1975]). Skelos, J.P., Florio, Balkin and Leventhal, JJ., concur.