Matter of Scranton v. Supreme Court of the State of New York

325 N.E.2d 876, 36 N.Y.2d 704, 366 N.Y.S.2d 417, 1975 N.Y. LEXIS 1736

Opinion

Memorandum. The judgments of the Appellate Division should be affirmed,, without costs. A claim of a denial of a speedy trial is not cognizable in an application pursuant to CPLB article 78 for a judgment prohibiting a District Attorney and the Justices of the Supreme Court from proceeding on an indictment. (Matter of Watts v. Supreme Ct. of State of N. Y., 28 N Y 2d 714; Matter of Lee v. County Ct. of Erie County, 27 N Y 2d 432, 437; Matter of Blake v. Hogan, 25 N Y 2d 747.) While a double jeopardy claim may be raised in a prohibition proceeding (Matter of State of New York v. King, 36 N Y 2d 59, at p. 64; Matter of Kraemer v. County Ct. of Suffolk County, 6 N Y 2d 363), this petition should nevertheless be denied. The petitioner was not placed in jeopardy despite the fact that three jurors had been sworn before a mistrial was declared. (CPL 40.30, subd. 1, par. [b].)

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Judgments affirmed.