Nolan v. Lungen

— Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506, subd [b], par 1) to prohibit respondents from resubmitting the charge of intentional murder and submitting for the first time the charges of felony murder and burglary in the first degree to a Sullivan County Grand Jury, following a trial on an indictment charging two counts of manslaughter in the first degree, which trial ended in a mistrial. On September 23,1981, a Sullivan 1096 County Grand Jury handed down an indictment charging petitioner with two counts of manslaughter in the first degree in violation of subdivision 2 of section 125.20 of the Penal Law (killing under the influence of extreme emotional disturbance). One count charged him with killing his wife and the other with killing her alleged paramour. These killings were alleged to have occurred on September 13, 1981. Although a charge of intentional murder (Penal Law, § 125.25, subd 1) was submitted to the Grand Jury for their consideration, petitioner was only indicted, under two counts, for manslaughter in the first degree. The case went to trial in March, 1982, but resulted in a hung jury and the declaration of a mistrial after three days of jury deliberation. Subsequent to the declaration of a mistrial, respondents sought leave from the County Court of Sullivan County to resubmit the evidence in the case to another Grand Jury. Respondents wanted a Grand Jury to reconsider the charge of murder in the second degree (intentional murder under Penal Law, § 125.25, subd 1) based upon evidence allegedly discovered since the matter was previously before the Grand Jury. Respondents also wanted a Grand Jury to consider for the first time charges of burglary in the first degree (Penal Law, § 140.30) and murder in the second degree under the felony murder theory (Penal Law, § 125.25, subd 3). County Court granted leave to respondents to resubmit the matter to a Grand Jury, holding, inter alia, that such a resubmission did not constitute double jeopardy. After securing a stay, petitioner thereupon commenced the instant proceeding in this court, seeking a judgment to the effect that respondents, the District Attorney of Sullivan County and his chief assistant, do not have the authority to resubmit the matter to a Grand Jury and that any such resubmission would violate the statutory double jeopardy provisions of the Criminal Procedure Law. A proceeding such as this should be commenced in the Supreme Court at Special Term, not in this court. However, the pertinent statute (CPLR 506, subd [b]) is a venue provision of the CPLR which may be waived by the parties if no objection is raised (see Ronco Communications & Electronics v Valentine, 70 AD2d 773, 774). Since respondents have not objected to venue, the defect in that regard was waived. Accordingly, dismissal is not statutorily mandated on this ground. Nevertheless, we conclude that this proceeding should be dismissed. It is well established that the extraordinary remedy of prohibition lies only where there is a clear legal right and there has been an excess of jurisdiction or power (Matter of State of New York v King, 36 NY2d 59, 62). In addition, even if there has been an excess of jurisdiction or power, this extraordinary remedy will not lie if there is available an adequate remedy at law (id.). Here, petitioner has an adequate remedy if in fact he is indicted after the matter is resubmitted to the Grand Jury (see CPL 210.20, subd 1, par [e]). Although in our opinion the instant petition is premature (People v Lohman, 49 AD2d 75) and must be dismissed, we would note that defendant’s arguments concerning double jeopardy are meritorious. Briefly, CPL 40.30 provides that despite the commencement of a criminal trial: “if such proceedings are subsequently nullified by a court order which restores the action to its pre-pleading status or which directs a new trial of the same accusatory instrument, the nullified proceedings do not bar further prosecution of such offense under the same accusatory instrument.” (CPL 40.30, subd 3; emphasis added.) In the present case, the declaration of a mistrial restored the action to its prepleading status. In such a situation, a defendant can be retried under the same indictment, but not under a superseding indictment (Matter of De Canzio v Kennedy, 67 AD2d 111, 120-121, mot for lv to app den 47 NY2d 709). Petition dismissed, without costs. Kane, J. P., and Mikoll, J., concur; Casey, J., concurs in the following memorandum; Yesawich, Jr., and Weiss, JJ., concur in a memorandum by Yesawich, Jr., J.