Majority
p. 388In the Matter of Anthony Cooke, Petitioner, v Neil J. Firetog et al., Respondents. [628 NYS2d 530]
Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from retrying the petitioner under Kings County Indictment No. 1656/92 on the ground of double jeopardy.
Adjudged that the petition is denied and the proceeding is dismissed; without costs or disbursements. .
"Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a
p. 389
court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v Goldman, 71 NY2d 564 , 569; see, Matter of Rush v Mordue, 68 NY2d 348 , 352). The petitioner has failed to demonstrate a clear legal right to the relief sought. The record does not support the petitioner’s claim that the prosecutor acted with the intent to provoke a mistrial and, therefore, there is no bar to a retrial on the ground of double jeopardy (see, People v Ferguson, 67 NY2d 383 , 388; People v Adames, 83 NY2d 89 ; People v Mitchell, 197 AD2d 709 ). Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.
Cases cited
- Holtzman v. Goldman 71 NY2d 564 at 569 p. 389
- Rush v. Mordue 68 NY2d 348 at 352 p. 389
- People v. Ferguson 67 NY2d 383 at 388 p. 389
- People v. Adames 83 NY2d 89 p. 389
- People v. Mitchell 197 AD2d 709 p. 389