Cheatom v. Kreindler
| Decision Date | 28 May 1991 |
| Citation | 570 N.Y.S.2d 350,173 A.D.2d 703 |
| Parties | In the Matter of Keith CHEATOM, Petitioner, v. Robert S. KREINDLER, etc., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Jacobs, Katz & Lurie, P.C., Brooklyn (David S. Jacobs, of counsel), for petitioner.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Ann Bordley and Lindsey Brown, of counsel), for respondents.
Before MANGANO, P.J., and THOMPSON, BRACKEN, BROWN and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
Proceeding pursuant to CPLR article 78, inter alia, to prohibit the respondents from conducting any further proceedings against the petitioner under Kings County Indictment Number 14149/89.
ADJUDGED that the proceeding is dismissed, without costs or disbursements.
The petitioner's claim that the principles of double jeopardy bar any further proceedings under this indictment are without merit. The entire jury had not been impanelled and sworn at the time prior trial proceedings were terminated. Therefore, jeopardy did not attach (see CPL 40.30[1][b]; Matter of Brackley v. Donnelly, 53 A.D.2d 849, 850, 385 N.Y.S.2d 587; People v. Jenkins, 135 A.D.2d 733, 734, 522 N.Y.S.2d 636; People v. Thompson, 79 A.D.2d 87, 108, n. 19, 435 N.Y.S.2d 739).
"Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a 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 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297; accord, Matter of Rush v. Mordue, 68 N.Y.2d 348, 353, 509 N.Y.S.2d 493, 502 N.E.2d 170). The petitioner here has failed to demonstrate that the trial court acted in excess of its authorized powers in refusing to swear in a twelfth juror or the two alternates at the trial proceedings that were terminated. Thus, he has not shown a clear legal right to the relief he seeks, and his petition must be dismissed.
To continue reading
Request your trial
-
Hoffler v. Jacon
...781 N.Y.S.2d 291, 814 N.E.2d 463 [2004], lv. denied 3 N.Y.3d 698, 785 N.Y.S.2d 17, 818 N.E.2d 660 [2004]; Matter of Cheatom v. Kreindler, 173 A.D.2d 703, 703, 570 N.Y.S.2d 350 [1991]; Matter of Chang v. Rotker, 155 A.D.2d 49, 54-55, 552 N.Y.S.2d 676 [1990] ).3 Nor are we persuaded that doub......
-
People v. Moyer, 00-01268
...(People v Jenkins, 135 A.D.2d 733, 734, lv dismissed 71 N.Y.2d 1028, lv denied 71 N.Y.2d 1028; see, CPL 40.30 [1] [b]; Matter of Cheatom v Kreindler, 173 A.D.2d 703). We conclude, however, that the court erred in denying that part of the motion of defendant seeking to suppress the statement......
- Chais v. Kohn