DeFilippo v. Rooney — 11 N.Y.3d 775

Majority

p. 775

[896 NE2d 86, 866 NYS2d 601]

In the Matter of Gary DeFilippo, Appellant, v Stephen J. Rooney et al., Respondents.

Decided September 16, 2008

p. 776

APPEARANCES OF COUNSEL

Hankin Handwerker & Mazel LLP, New York City (Michael Handwerker of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Ann Bordley of counsel), for respondents.

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, without costs, and the certified question not answered on the ground that it is unnecessary.

The Appellate Division correctly concluded that petitioner failed to meet his burden of demonstrating that the alleged prosecutorial misconduct was conducted in a deliberate attempt to provoke him to move for a mistrial (see Matter of Gorghan v DeAngelis, 7 NY3d 470 [2006]). The Appellate Division also properly concluded that petitioner failed to demonstrate a clear legal right to the remedy of prohibition (see Matter of Rush v Mordue, 68 NY2d 348 , 352 [1986]; Matter of State of New York v King, 36 NY2d 59 , 62 [1975]).

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

p. 777

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), judgment affirmed, etc.

Cases cited

Gorghan v. DeAngelis 7 NY3d 470 N.Y. 2006-10-19 p. 776
Rush v. Mordue 68 NY2d 348 N.Y. 1986-11-18 at 352 p. 776
State v. King 36 NY2d 59 N.Y. 1975-01-17 at 62 p. 776