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MTR. OF FERLITO v. JUDGES OF COUNTY CT.

31 N.Y.2d 416 (1972)

In the Matter of Joseph B. Ferlito, Respondent, v. Judges of the County Court, Suffolk County, and George J. Aspland, as District Attorney of Suffolk County, Appellant.

Court of Appeals of the State of New York.

Decided December 29, 1972.

Attorney(s) appearing for the Case

George J. Aspland, District Attorney (Ronald E. Lipetz of counsel), for appellant.

Harry Rosenberg for respondent.

Chief Judge FULD and Judges BERGAN and BREITEL concur with Judge GIBSON; Judges BURKE, SCILEPPI and JASEN dissent and vote to reverse on the dissenting opinion at the Appellate Division.

GIBSON, J.

In this proceeding under CPLR article 78, the Appellate Division properly prohibited the respondent Judges and District Attorney from proceedings with the retrial of petitioner under an indictment, holding that otherwise he would twice be placed in jeopardy, in violation of his rights under the Federal and State Constitutions (U. S. Const., 5th Amdt.; N. Y. Const., art. I, § 6). We are in complete...

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