MATTER OF DeFILIPPO v. Rooney

896 N.E.2d 86, 11 N.Y.3d 775

Opinion

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, without costs, and the certified question not answered on the ground that it is unnecessary.

The Appellate Division correctly concluded that petitioner failed to meet his burden of demonstrating that the alleged prosecutorial misconduct was conducted in a deliberate attempt to provoke him to move for a mistrial (see Matter of Gorghan v DeAngelis, 7 NY3d 470 [2006]). The Appellate Division also properly concluded that petitioner failed to demonstrate a clear legal right to the remedy of prohibition (see Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]; Matter of State of New York v King, 36 NY2d 59, 62 [1975]).

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), judgment affirmed, etc.