Cavaliere v. Judges of Supreme Court of State of N.Y., Criminal Term, County of Kings

• Decision Date: 16 January 1990
• Parties: In the Matter of Louis CAVALIERE, Petitioner, v. The JUDGES OF the SUPREME COURT OF the STATE OF NEW YORK, CRIMINAL TERM, COUNTY OF KINGS, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 817

549 N.Y.S.2d 817

157 A.D.2d 722

In the Matter of Louis CAVALIERE, Petitioner, v. The JUDGES OF the SUPREME COURT OF the STATE OF NEW YORK, CRIMINAL TERM, COUNTY OF KINGS, Respondents.

Supreme Court, Appellate Division, Second Department.

Jan. 16, 1990.

Louis R. Aidala, New York City, for petitioner.

Charles J. Hynes, Dist. Atty., Brooklyn (Pamela Davis, of counsel), for respondents.

Before LAWRENCE, J.P., and KOOPER, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of a writ of prohibition to prohibit the retrial of the petitioner on Kings County Indictment No. 3935/88, on the ground that a retrial of the subject indictment would subject him to double jeopardy.

ADJUDGED that the petition is denied, without costs or disbursements.

In view of the numerous applications by the defense counsel for a mistrial, his statements that he was standing on the record of those motions, and his failure to object to the declaration of a mistrial, we infer from the totality of circumstances an acquiescence on his part to the declaration of a mistrial (see, People v. Ferguson, 67 N.Y.2d 383, 502 N.Y.S.2d 972, 494 N.E.2d 77; People v. Young, 137 A.D.2d 777, 525 N.Y.S.2d 257). Absent any evidence of bad faith or an intent by the prosecution to provoke a mistrial motion, retrial of the indictment is not barred by the prohibition against double jeopardy.