BROWN v. LATHAM (2004)

Petitioner commenced this original proceeding seeking to prohibit respondents from proceeding with a prosecution against him upon an indictment in Steuben County Court (see CPLR 506[b][1];  7804[b] ). Judge Joseph W. Latham does not appear in the proceeding (see 7804[i] ).   It is undisputed that, during the pendency of a prosecution upon a misdemeanor information in local criminal court, an assistant district attorney sought an adjournment of the trial immediately before it commenced, in order to appeal from the court's suppression ruling, and that District Attorney John C. Tunney (respondent) failed to appeal from that ruling.   In his answer, respondent states that the assistant district attorney also sought an adjournment pursuant to CPL 170.20(2) in order that the matter could be presented to the grand jury.

 To avail himself of the extraordinary remedy of a writ of prohibition, petitioner must establish that he has a clear legal right and that respondents acted in excess of their authorized powers (see Matter of Rush v. Mordue, 68 N.Y.2d 348, 352, 509 N.Y.S.2d 493, 502 N.E.2d 170;  Matter of Forte v. Supreme Ct. of State of N.Y., 48 N.Y.2d 179, 183, 422 N.Y.S.2d 26, 397 N.E.2d 717).   We reject petitioner's contention that respondent is barred from pursuing a prosecution in County Court pursuant to CPL 450.50(2), which prohibits a prosecution where the people are unsuccessful on their appeal from a suppression ruling.   Because respondent did not appeal from the local court's order granting suppression of certain evidence, section 450.50(2) is not applicable.   We reject the further contention of petitioner that the prosecution in County Court violates his constitutional right to be protected from double jeopardy.   Although a writ of prohibition may lie to protect a petitioner from double jeopardy (see Rush, 68 N.Y.2d at 354, 509 N.Y.S.2d 493, 502 N.E.2d 170), here, “[j]eopardy never attached” because the jury in the local criminal court had not yet been impaneled (People v. Moyer, 292 A.D.2d 793, 794, 738 N.Y.S.2d 810;  see CPL 40.30[1][b];  cf. Matter of Kraemer v. County Ct. of Suffolk County, 6 N.Y.2d 363, 367-368, 189 N.Y.S.2d 878, 160 N.E.2d 633).   Furthermore, the assistant district attorney properly sought an adjournment of the proceedings in local criminal court prior to the commencement of the trial on the ground that the district attorney intended to present the charge to the grand jury (see CPL 170.20 [2] ).   Finally, it is well established that a writ of prohibition does not lie upon the contention that petitioner was denied his statutory or constitutional rights to a speedy trial (see Matter of Lopez v. Justices of Supreme Ct. of N.Y. County, 36 N.Y.2d 949, 373 N.Y.S.2d 552, 335 N.E.2d 857;  Matter of Cummings v. Koppell, 212 A.D.2d 11, 15, 627 N.Y.S.2d 480, lv. denied 86 N.Y.2d 702, 631 N.Y.S.2d 606, 655 N.E.2d 703;  Matter of Valenti v. Mark, 59 A.D.2d 651, 398 N.Y.S.2d 390, lv. denied 43 N.Y.2d 642, 401 N.Y.S.2d 1026, 372 N.E.2d 49).   We therefore dismiss the petition.

It is hereby ORDERED that said petition be and the same hereby is unanimously dismissed without costs.

MEMORANDUM: