IN RE: David C. Belton (2014)

DECISION, ORDER & JUDGMENT

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondents from retrying the petitioner in a criminal action entitled People v. Belton, pending in the County Court, Suffolk County, under Indictment No. 2138B/10, on the ground that retrial would violate his constitutional right not to be twice placed in jeopardy for the same offense, and application by the petitioner to prosecute the proceeding as a poor person.

ORDERED that the application for leave to prosecute the proceeding as a poor person is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied as academic;  and it is further,

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 contention that retrying him on Suffolk County Indictment No. 2138B/10 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).   Since the petitioner requested the mistrial that was granted by the County Court, he must demonstrate prosecutorial or judicial misconduct intended to provoke him into moving for 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;  Matter of DeFilippo v. Rooney, 46 AD3d 681, 682, affd 11 NY3d 775;  Matter of Miller v. Hynes, 10 AD3d 660, 661;  Matter of Majestic Collectibles v Farneti, 308 A.D.2d 492).   The petitioner failed to meet this burden.

DILLON, J.P., HALL, AUSTIN and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court