IN RE: Shelley MILLER (2004)

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to bar the retrial of the petitioners under Kings County Indictment No. 687/03, on the ground that the retrial would violate the prohibition against double jeopardy, and in the nature of mandamus to compel the respondent Plummer E. Lott, a Justice of the Supreme Court, Kings County, to dismiss the indictment.   Motion by the respondent Plummer E. Lott to dismiss the proceeding insofar as asserted against him on the ground that the petitioners fail to state any claims for which relief in the nature of prohibition and mandamus is available.

ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements;  and it is further,

ORDERED that the motion is denied as academic.

The petitioners failed to demonstrate a clear legal right to the extraordinary remedy of prohibition based on their claim that double jeopardy bars the District Attorney of Kings County from further prosecuting them (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 petitioners requested the mistrial that was granted by the trial court, they must demonstrate prosecutorial or judicial misconduct intended to provoke them into requesting a mistrial in order to establish that a retrial is barred on the ground 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 petitioners failed to meet this burden.

With respect to the petitioners' remaining claims, the remedies of prohibition and mandamus are not available, as the petitioners failed to demonstrate a clear legal right to the relief sought (see Matter of Holtzman v. Goldman, supra at 569, 528 N.Y.S.2d 21, 523 N.E.2d 297;  Matter of Rush v. Mordue, 68 N.Y.2d 348, 352, 509 N.Y.S.2d 493, 502 N.E.2d 170;  Matter of Legal Aid Socy. of Sullivan County v. Scheinman, 53 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542).