Matter of DeFilippo v Rooney

Matter of DeFilippo v Rooney 2008 NY Slip Op 06873 [11 NY3d 775] September 16, 2008 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 12, 2008

[*1] In the Matter of Gary DeFilippo, Appellant,
v
Stephen J. Rooney et al., Respondents.

Decided September 16, 2008

Matter of DeFilippo v Rooney, 46 AD3d 681, affirmed.

APPEARANCES OF COUNSEL

Hankin Handwerker & Mazel LLP, New York City (Michael Handwerker of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Ann Bordley of counsel), for respondents.

{**11 NY3d at 776} OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, without costs, and the certified question not answered on the ground that it is unnecessary. [*2]

The Appellate Division correctly concluded that petitioner failed to meet his burden of demonstrating that the alleged prosecutorial misconduct was conducted in a deliberate attempt to provoke him to move for a mistrial (see Matter of Gorghan v DeAngelis, 7 NY3d 470 [2006]). The Appellate Division also properly concluded that petitioner failed to demonstrate a clear legal right to the remedy of prohibition (see Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]; Matter of State of New York v King, 36 NY2d 59, 62 [1975]).

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.{**11 NY3d at 777}

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), judgment affirmed, etc.