IN RE: Gary DeFILIPPO (2007)

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to bar the retrial of the petitioner in an action entitled People v. DeFilippo, pending in the Supreme Court, Richmond County, under Indictment No. 295/04, on the ground that retrial would violate his right not to be twice placed in jeopardy for the same offense.

ADJUDGED that the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.

The petitioner failed to demonstrate a clear legal right to the extraordinary remedy of prohibition based on his claim that the District Attorney of Richmond County is barred from further prosecuting him on the ground that retrial would violate his right not to be twice placed in jeopardy for the same offense (see Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297).   Since the petitioner requested the mistrial that was granted by the trial court, he must demonstrate prosecutorial or judicial misconduct intended to provoke him into requesting a mistrial in order to establish that a retrial is barred by the principles of double jeopardy (see Oregon v. Kennedy, 456 U.S. 667, 673-679, 102 S.Ct. 2083, 72 L.Ed.2d 416;  see also Matter of Majestic Collectibles v. Farneti, 308 A.D.2d 492, 764 N.Y.S.2d 654).   The petitioner failed to meet this burden.

With respect to the petitioner's remaining claims, the remedies of prohibition and mandamus are not available, as the petitioner failed to demonstrate a clear legal right to the relief sought (see Matter of Holtzman v. Goldman, 71 N.Y.2d at 569, 528 N.Y.S.2d 21, 523 N.E.2d 297;  Matter of Henry v. Namm, 136 A.D.2d 585, 524 N.Y.S.2d 174;  Justice v. Kasler, 122 A.D.2d 603, 505 N.Y.S.2d 278;  Matter of Goetz v. Crane, 111 A.D.2d 729, 730, 491 N.Y.S.2d 5;  Matter of Kopilas v. People, 111 A.D.2d 174, 488 N.Y.S.2d 803).