New York Criminal Lawyer Blog
A Nassau Criminal Lawyer said that, this case is a criminal proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Presiding Justice, the Clerk, and the Deputy Clerks of the Supreme Court, Appellate Division, Second Judicial Department, to accept for filing an application for leave to appeal from an order of the County Court, Nassau County, dated October 9, 2009, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90, and to accept for filing an application for leave to appeal from an order of the Supreme Court, Queens County, dated September 23, 2009, in an underlying criminal action, pending under Queens County Indictment Nos. 6608/90 and 6609/ 90, applications by the petitioner for leave to appeal to this Court from those orders, and application by the petitioner for poor person relief. A Nassau Order of protection Lawyer said that, also a proceeding pursuant to CPLR article 78, inter alia, in the nature of a writ of prohibition to prohibit the retrial of the petitioner on Nassau County Indictment No. 3935/88, on the ground that a retrial of the subject indictment would subject him to double jeopardy.
A Nassau Order of Protection Lawyer said that, in a decision and order on application dated April 2, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the County Court, Nassau County, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90. In a decision and order on application dated April 8, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the Supreme Court, Queens County, in an underlying criminal action also pending under Queens County Indictment Nos. 6608/90 and 6609/90. Since this Court accepted for filing the petitioner’s applications for leave to appeal to this Court from those two orders, the proceeding to compel acceptance of those filings has been rendered academic and, therefore, and must be dismissed. Moreover, since applications for leave to appeal to this Court from those orders have already been made and determined, the petitioner’s current applications for the same relief also must be dismissed. Robbery was not charged and neither was domestic violence.
The issue in this case is whether the Court should accept for filing the application for leave to appeal filed by the defendant in his criminal indictments.
The court held that, 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. 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. This would not be true in grand larceny cases or even in petit larceny.
The Sixth Amendment to the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him”, held that “the Sixth Amendment’s right of an accused to confront the witnesses against him is a fundamental right and is made obligatory on the States by the Fourteenth Amendment.”
Accordingly, the court ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied; and it is further, ordered that the applications for leave to appeal to this Court from the orders dated September 23, 2009, and October 9, 2009, respectively, are dismissed as academic; and it is further, adjudged that the proceeding is dismissed as academic, without costs or disbursements.
Every person is entitled to his right to counsel and right to confront the witness against him. If your constitutional right has been violated, seek the help of a Nassau Order of Protection Attorney and Nassau Criminal Attorney at Stephen Bilkis and Associates.