Opinion
2002-05524
Submitted October 7, 2002.
November 25, 2002.
Proceeding pursuant to CPLR article 78, in the nature of prohibition, inter alia, to prohibit the respondent Richard A. Molea, a Justice of the Supreme Court, from proceeding with a retrial of the petitioner in the criminal action entitled People v. Fonvil, pending in the Supreme Court, Rockland County, under Indictment Nos. 2001/233 and 2001/292, on the ground that the retrial would violate his right not to be placed twice in jeopardy for the same offense.
William A. Gerard, Palisades, N.Y., for petitioner.
Michael E. Bongiorno, District Attorney, New City, N.Y. (Elaine K. Yacyshyn of counsel), nonparty-respondent pro se.
Before: NANCY E. SMITH, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, STEPHEN G. CRANE, JJ.
DECISION JUDGMENT
ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.
Under the circumstances of this case, the Supreme Court properly disqualified the petitioner's attorney during the trial (see People v. Hall, 46 N.Y.2d 873, 874, cert denied 444 U.S. 848; People v. Blaylock, 266 A.D.2d 400; People v. King, 248 A.D.2d 639, 640; People v. Scotti, 142 A.D.2d 616), and correctly declared a mistrial out of "manifest necessity" (CPL 280.10; cf. Matter of Davis v. Brown, 87 N.Y.2d 626, 630). Accordingly, a retrial of the petitioner does not violate double jeopardy principles (cf. Matter of Davis v. Brown, supra at 630). In light of this, the petitioner does not have a "clear legal right" to the relief requested, and the petition must be denied (cf. Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569).
Moreover, prohibition does not lie to prohibit the court from enforcing its order relieving the petitioner's attorney (see Matter of Newell v. Demakos, 232 A.D.2d 564; Matter of Cambria v. Adams, 161 A.D.2d 1180, 1181).
SMITH, J.P., McGINITY, LUCIANO and CRANE, JJ., concur.