| Matter of Ellis v Cawley |
| 2017 NY Slip Op 07503 [154 AD3d 1225] |
| October 26, 2017 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Timothy Ellis, Petitioner, v Joseph F. Cawley,as Judge of the County Court of Broome County, Respondent, and Benjamin K. Bergman, asSpecial Prosecutor, Respondent. |
Edward E. Kopko, Ithaca and Jerome M. Mayersak, Ithaca, for petitioner.
Benjamin K. Bergman, Binghamton, respondent pro se.
Rose, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR506 [b] [1]) to prohibit respondents from trying petitioner in the County Court of Broome Countyon an indictment charging him with attempted murder in the first degree, attempted murder in thesecond degree, assault in the first degree, burglary in the first degree and burglary in the seconddegree.
During the course of petitioner's trial on various charges stemming from his involvement in aviolent home invasion, respondent Benjamin K. Bergman, the special prosecutor appointed toprosecute the case, discovered that defense counsel had previously represented two centralprosecution witnesses that had not yet testified. Bergman immediately brought this conflict toCounty Court's attention, and the court engaged in a thorough discussion of the issue with theparties. During the discussion, petitioner stated that he was unwilling to waive the conflict andrequested that new counsel be appointed for him. Defense counsel thereafter moved for amistrial, and County Court granted the motion. Petitioner then commenced this CPLR article 78proceeding seeking to prohibit respondents from retrying him [*2]on double jeopardy grounds, and we subsequently deniedpetitioner's motion to stay the retrial.
The parties have advised us that, during the pendency of this proceeding, petitioner wasretried and convicted of all of the charges in the indictment. In light of this, we must dismiss thepetition as moot because the requested relief is no longer available to petitioner and, thus, "therights of the parties cannot be affected by the determination of this [proceeding]" (Matter ofHearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see also Matter of Davis v Kohout, 35 AD3d 1173, 1173-1174[2006], appeal and lv dismissed 8 NY3d 903 [2007], cert denied 552 US 826[2007]; see generally Matter of NewYork State Commn. on Jud. Conduct v Rubenstein, 23 NY3d 570, 576 [2014]). Nor isthe exception to the mootness doctrine applicable here (see generally Coleman v Daines, 19 NY3d 1087, 1090 [2012]), aspetitioner may raise his double jeopardy claim by direct appeal from the judgment of conviction(see e.g. People v Singleton, 135AD3d 1165, 1166-1167 [2016], lv denied 27 NY3d 969 [2016]).
Egan Jr., J.P., Lynch and Mulvey, JJ., concur. Adjudged that the petition is dismissed, asmoot, without costs.