Cooke v. Firetog

Appellate Division of the Supreme Court of New York

Cooke v. Firetog

216 A.D.2d 388, 628 N.Y.S.2d 530, 1995 N.Y. App. Div. LEXIS 6181

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

DecidedJune 12, 1995

StatusPublished

This text of 216 A.D.2d 388 (Cooke v. Firetog) 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

Cooke v. Firetog, 216 A.D.2d 388, 628 N.Y.S.2d 530, 1995 N.Y. App. Div. LEXIS 6181 (N.Y. Ct. App. 1995).

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Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from retrying the petitioner under Kings County Indictment No. 1656/92 on the ground of double jeopardy.

Adjudged that the petition is denied and the proceeding is dismissed; without costs or disbursements. .

"Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a [389]*389court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v Goldman, 71 NY2d 564, 569; see, Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioner has failed to demonstrate a clear legal right to the relief sought. The record does not support the petitioner’s claim that the prosecutor acted with the intent to provoke a mistrial and, therefore, there is no bar to a retrial on the ground of double jeopardy (see, People v Ferguson, 67 NY2d 383, 388; People v Adames, 83 NY2d 89; People v Mitchell, 197 AD2d 709). Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.

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Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from retrying the petitioner under Kings County Indictment No. 1656/92 on the ground of double jeopardy.

Adjudged that the petition is denied and the proceeding is dismissed; without costs or disbursements. .

"Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a [389]*389court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v Goldman, 71 NY2d 564, 569; see, Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioner has failed to demonstrate a clear legal right to the relief sought. The record does not support the petitioner’s claim that the prosecutor acted with the intent to provoke a mistrial and, therefore, there is no bar to a retrial on the ground of double jeopardy (see, People v Ferguson, 67 NY2d 383, 388; People v Adames, 83 NY2d 89; People v Mitchell, 197 AD2d 709). Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.

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Bluebook (online)

216 A.D.2d 388, 628 N.Y.S.2d 530, 1995 N.Y. App. Div. LEXIS 6181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooke-v-firetog-nyappdiv-1995.

Opinion

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