Bloeth v. Supreme Court of the State

Petition pursuant to article 78 of the Civil Practice Act for an order in the nature of a writ of prohibition to restrain the Supreme Court, New York County, from proceeding1 with the trial of the second count of a three-count indictment denied, without costs. Petitioner contends that he should not be tried upon the second count, charging him with violation of subdivision 2 of section 1044 of the Penal Law (felony murder), on the ground that such trial would constitute double jeopardy. A County Court jury, on May 14, 1960, found petitioner guilty of Count ] (murder in the first degree contrary to subdivision 1 of the Penal Law), guilty of Count 3 (robbery in the first degree) and acquitted him of the afore-mentioned Count 2. This judgment of conviction was unanimously affirmed by the Court of Appeals ( 9 N Y 2d 211 ), motion for leave to reargue was denied ( 9 N Y 2d 827 ) and certiorari was denied by the United States Supreme Court ( 368 U. S. 868 ). After a second application for reargument was denied by the Court of Appeals ( 11 N Y 2d 798 ), petitioner sought habeas corpus relief in the United States District Court. This application was denied, as was an application for reargument ( 204 F. Supp. 263 ). Thereafter, a majority of the Judges of the United States Court of Appeals sitting mi banc held that petitioner had not received a fair trial because of adverse newspaper publicity and directed the issuance of a writ of habeas corpus “ conditioned to permit retention in custody for the purpose of retrial on the indictment before a proper jury” ( 313 F. 2d 364 , 374). The People’s application to the United States Supreme Court for a writ of certiorari was denied, and petitioner has been brought to trial in Supreme Court, New York County. This trial is now in progress and is at the stage