Following a jury trial, petitioner was convicted of murder in the first degree and was sentenced to a prison term of life without parole. On direct appeal to this Court, petitioner argued, among other things, that the evidence was legally insufficient to support the conviction, the verdict was against the weight of the evidence and the conviction should be reversed because the prospective jurors were not properly sworn. Ultimately, this Court reversed on the law and remitted the matter to County Court for a new trial based on our finding that the prospective jurors had not been properly sworn to truthfully answer the questions posed to them regarding their qualifications to serve as jurors (People v Hoffler, 53 A.D.3d 116,
Respondent County Judge of Rensselaer County was assigned to preside over the retrial of the indictment against petitioner and respondent Christopher J. Belling (hereinafter respondent) was appointed as a Special Prosecutor to prosecute the case. Petitioner moved to dismiss the remaining counts of the indictment that charged him with the crimes of murder in the first degree and murder in the second degree
Preliminarily, we note that a CPLR article 78 proceeding seeking a writ of prohibition is a proper mechanism to raise a claim that retrial is barred by double jeopardy principles (see Matter of Di Lorenzo v Murtagh, 36 N.Y.2d 306, 309-310 ; Matter of Stewart v Hartnett, 34 A.D.3d 1134, 1136 , appeal dismissed 8 N.Y.3d 936 ). Nonetheless, a petitioner must "demonstrate a clear right to [such] extraordinary remedy" (Matter of Baim v Eidens, 279 A.D.2d 787, 789 ) and the absence of an adequate remedy at law (see Matter of Newfield Cent. School Dist. v New York State Div. of Human Rights, 66 A.D.3d 1314, 1315 ; Rafferty v Owens, 82 A.D.2d 582, 585 ; see also Matter of Whitehead v Vizzie, 223 A.D.2d 938 ). The Double Jeopardy Clause protects against repeated prosecutions for the same criminal offense after an acquittal or a conviction (see US Const 5th, 14th Amends; NY Const, art I, § 6; CPL 40.20 et seq.; People v Gonzalez, 99 N.Y.2d 76, 82 ). As relevant here, under New York's statutory double jeopardy scheme, a person is considered to have been "prosecuted" on an offense after the action proceeds to trial and the jury has been impaneled and sworn (CPL 40.30  [b]). Thus, in a trial on an
Here, because it has been established that the jury was never properly sworn pursuant to CPL 270.15 (1) (a) and that such failure "invalidated the entire trial" (People v Hoffler, 53 AD3d at 124), the trial was a nullity and petitioner was never "prosecuted" under the indictment (see Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 40.30, at 62; Matter of Cummings v Koppell, 212 A.D.2d 11, 14 , lv denied 86 N.Y.2d 702 ; see also Matter of Cunningham v Dwyer, 302 A.D.2d 888, 889 , appeal dismissed 99 N.Y.2d 649 ). Consequently, petitioner was never placed in jeopardy even though the trial proceeded to its conclusion (see CPL 40.30 ; Matter of Stewart v Hartnett, 34 AD3d at 1136; People v Mergenthaler, 13 AD3d at 985; see generally Matter of Kelly v Bruhn, 3 A.D.3d 783, 784 , appeal dismissed 2 N.Y.3d 793 , lv denied 3 N.Y.3d 698 ; Matter of Cheatom v Kreindler, 173 A.D.2d 703, 703 ; Matter of Chang v Rotker, 155 A.D.2d 49, 54-55 ).
Petitioner's argument that retrial is barred by virtue of what he characterizes as a second fundamental defect—this Court's failure to address petitioner's legal sufficiency and weight of the evidence claims on his direct appeal of the prior murder conviction—is also unavailing. Where, as here, a fundamental defect rendered the entire trial invalid, we discern no impediment to
In view of the foregoing, we find that petitioner has not demonstrated that he has a clear legal right to prohibition (see Matter of Baim v Eidens, 279 AD2d at 789; see also Matter of Holtzman v Goldman, 71 N.Y.2d 564, 569 ). Petitioner's remaining contentions have been reviewed and are without merit.
Adjudged that the petition is dismissed, without costs.