Majestic Collectibles, Inc. v. Farneti

—Proceeding pursuant to CPLR article 78 in the nature of a writ of prohibition to bar the retrial of the petitioners under Suffolk County Indictment No. 1112/01, on the ground that the retrial would violate the prohibition against double jeopardy.

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

The petitioners failed to demonstrate a clear legal right to the extraordinary remedy of prohibition (see Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988]). The petitioners contend that the Attorney General is barred from further prosecuting them on the ground of double jeopardy. However, since the petitioners requested the mistrial that was granted by the trial court, in order to establish that a retrial is barred on the ground of double jeopardy they must demonstrate that the prosecution deliberately provoked them into requesting a mistrial (see Matter of Davis v Brown, 87 NY2d 626, 630 [1996]; People v Boone, 287 AD2d 461 [2001]; Matter of McNeill v Rooney, 277 AD2d 317 [2000]; see also Oregon v Kennedy, 456 US 667, 675-676 [1982]). The petitioners failed to meet this burden. Feuerstein, J.P., Krausman, Goldstein and Rivera, JJ., concur.