Pierre-Lewis v. Tomei , 549 N.Y.S.2d 762 ( 1990 )

Proceeding pursuant to CPLR article 78 to prohibit the respondent from further prosecuting the petitioner under Kings County indictment No. 8343/88 on the ground of double jeopardy.

Adjudged that the proceeding is dismissed on the merits, without costs or disbursements, and the provision of the order to show cause of this court, dated November 16, 1989, staying the respondent from further prosecuting the petitioner under Kings County indictment No. 8343/88, is vacated forthwith.

Unlike the situation in which a criminal trial has resulted in a judgment of acquittal, retrial of an indictment is not automatically barred where the merits of the charges against the defendant have not been finally resolved (Matter of Plummer v Rothwax, 63 NY2d 243, 249). Where, as here, a mistrial was ordered at the request of the petitioner and there is no evidence of bad faith or an intention by the prosecutor to provoke a mistrial motion, retrial is not barred by the double jeopardy protections (People v Ferguson, 67 NY2d 383, 388; People v Presley, 136 AD2d 949; Matter of Owen v Harrigan, 131 AD2d 20, 23). Accordingly, the instant petition is denied. Mollen, P. J., Mangano, Thompson and Bracken, JJ., concur.