Cavaliere v. Judges of the Supreme Court

Appellate Division of the Supreme Court of New York

Cavaliere v. Judges of the Supreme Court

157 A.D.2d 722, 549 N.Y.S.2d 817, 1990 N.Y. App. Div. LEXIS 503

Appellate Division of the Supreme Court of the State of New York·Decided January 16, 1990·Published·Cited by 1 cases

Opinion

Proceeding pursuant to CPLR article 78, inter alia, in the nature of a writ of prohibition to prohibit the retrial of the petitioner on Kings County indictment No. 3935/88, on the ground that a retrial of the subject indictment would subject him to double jeopardy.

Adjudged that the petition is denied, without costs or disbursements.

In view of the numerous applications by the defense counsel for a mistrial, his statements that he was standing on the record of those motions, and his failure to object to the declaration of a mistrial, we infer from the totality of circumstances an acquiescence on his part to the declaration of a mistrial (see, People v Ferguson, 67 NY2d 383; People v Young, 137 AD2d 777). Absent any evidence of bad faith or an intent by the prosecution to provoke a mistrial motion, retrial of the indictment is not barred by the prohibition against double jeopardy. Lawrence, J. P., Kooper, Harwood and Balletta, JJ., concur.

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Proceeding pursuant to CPLR article 78, inter alia, in the nature of a writ of prohibition to prohibit the retrial of the petitioner on Kings County indictment No. 3935/88, on the ground that a retrial of the subject indictment would subject him to double jeopardy.

Adjudged that the petition is denied, without costs or disbursements.

In view of the numerous applications by the defense counsel for a mistrial, his statements that he was standing on the record of those motions, and his failure to object to the declaration of a mistrial, we infer from the totality of circumstances an acquiescence on his part to the declaration of a mistrial (see, People v Ferguson, 67 NY2d 383; People v Young, 137 AD2d 777). Absent any evidence of bad faith or an intent by the prosecution to provoke a mistrial motion, retrial of the indictment is not barred by the prohibition against double jeopardy. Lawrence, J. P., Kooper, Harwood and Balletta, JJ., concur.

Cavaliere v. Judges of the Supreme Court, 157 A.D.2d 722, 549 N.Y.S.2d 817, 1990 N.Y. App. Div. LEXIS 503 (N.Y. Ct. App. 1990).

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Opinion

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