Arcara v. Supreme Court

25 A.D.2d 877, 1966 N.Y. App. Div. LEXIS 4220

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1966
• Status: Published

Opinion

In a proceeding pursuant to article 78 CPLR, the petitioner seeks to: (1) enjoin respondents from conducting a retrial of petitioner under a certain indictment (trial of petitioner had ended in a mistrial) and (2) dismiss the indictment on the ground of double jeopardy. Application denied and proceeding dismissed, without costs. In our opinion, the granting of the mistrial on May 2, 1966 was not an improvident exereise of discretion. Under the circumstances, the plea of double jeopardy to prevent retrial of petitioner is not available (Gori v. United States, 367 U. S. 364).

Beldoek, P. J., Ughetta, Christ, Brennan and Hill, JJ., concur.