Cooke v. Firetog

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] court—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.