West v. Harris

— Application, pursuant to CPLR article 78, for judgment in the nature of prohibition, denied, and petition dated August 24, 1984 dismissed.

Initially, since petitioner seeks to review a claim of double jeopardy, this proceeding lies (see Matter of Di Lorenzo v Murtagh, 36 NY2d 306). However, since defendant’s judgment of conviction of the crime of criminal possession of a controlled substance in the third degree was reversed by the Court of Appeals and the matter remitted for a new trial (People v West, 62 NY2d 708), petitioner is not entitled to the relief sought (CPL 40.30, subd 3; People v Ercole, 4 NY2d 617). Mahoney, P. J., Kane, Main, Casey and Weiss, JJ., concur.