Atkinson v. Barone

Appellate Division of the Supreme Court of New York

Atkinson v. Barone

200 A.D.2d 438, 607 N.Y.S.2d 244

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 13, 1994

StatusPublished

This text of 200 A.D.2d 438 (Atkinson v. Barone) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Atkinson v. Barone, 200 A.D.2d 438, 607 N.Y.S.2d 244 (N.Y. Ct. App. 1994).

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Opinion

—Judgment (denominated an order), Supreme Court, Bronx County (Jerry Crispino, J.), entered September 16, 1993, which, in a proceeding pursuant to CPLR article 78 to prohibit respondent District Attorney from further prosecuting petitioner under an information accusing him of unlawful imprisonment in the second degree and sexual abuse in the third degree, upon the ground that such would violate his right against double jeopardy, granted respondent’s cross motion to dismiss the proceeding for failure to state a cause of action, unanimously affirmed, without costs.

The trial court did not abuse its discretion in declaring a mistrial upon the ground of "manifest necessity”, there having been reliable information that the inability of the complaining witness to complete her testimony was due to unforeseeable complications in her 8Vi month pregnancy not within the control of the People (see, Hall v Potoker, 49 NY2d 501, 506). Concur — Murphy, P. J., Sullivan, Rosenberger and Wallach, JJ.

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—Judgment (denominated an order), Supreme Court, Bronx County (Jerry Crispino, J.), entered September 16, 1993, which, in a proceeding pursuant to CPLR article 78 to prohibit respondent District Attorney from further prosecuting petitioner under an information accusing him of unlawful imprisonment in the second degree and sexual abuse in the third degree, upon the ground that such would violate his right against double jeopardy, granted respondent’s cross motion to dismiss the proceeding for failure to state a cause of action, unanimously affirmed, without costs.

The trial court did not abuse its discretion in declaring a mistrial upon the ground of "manifest necessity”, there having been reliable information that the inability of the complaining witness to complete her testimony was due to unforeseeable complications in her 8Vi month pregnancy not within the control of the People (see, Hall v Potoker, 49 NY2d 501, 506). Concur — Murphy, P. J., Sullivan, Rosenberger and Wallach, JJ.

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200 A.D.2d 438, 607 N.Y.S.2d 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkinson-v-barone-nyappdiv-1994.

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