People ex rel. Eastman v. La Vallee

12 A.D.2d 550, 206 N.Y.S.2d 834, 1960 N.Y. App. Div. LEXIS 7248

Opinion

Appeal by the relator from an order of the Supreme Court, Clinton County, which dismissed a writ of habeas corpus. The relator was indicted in March, 1955 for violation of the Public Health Law with respect to narcotic drugs. During the course of his trial thereon in June, 1955 a mistrial was declared on the motion of relator’s counsel. Thereafter on November 3, 1955 a motion for the dismissal of the indictment was granted with permission to submit the matter to another Grand Jury. An order dismissing the indictment was thereafter signed on November 14, 1955. In the meantime the Grand Jury returned another indictment charging relator with the same crime as did the first. The relator was tried, convicted and sentenced under this second indictment. The petition for the present writ of habeas corpus was based on the allegation of double jeopardy. On the return date the Attorney-General was granted time in which to produce the decision granting permission to resubmit the relator’s case to the Grand Jury. Thereafter that was done and the court below dismissed the writ. There is no merit in the relator’s claim of double jeopardy. This is not a situation where the first trial was terminated without legal and justifiable cause nor without the relator’s consent. The relator moved for the mistrial and he may not now complain that his motion was granted. The matter was resubmitted to the Grand Jury with the relator being tried on the indictment resulting therefrom. There is further no merit in relator’s contention that he was denied a proper hearing on the return of the writ. Order unanimously affirmed, without costs.