Appellate Division: Second Judicial Department

M65902

E/sl

REINALDO E. RIVERA, J.P.

ROBERT A. SPOLZINO

ANITA R. FLORIO

RUTH C. BALKIN, JJ.

2007-03737 In the Matter of Gary DeFilippo, petitioner, v Stephen J. Rooney, etc., et al., respondents.

DECISION & ORDER ON MOTION

Motion by the petitioner for leave to appeal to the Court of Appeals pursuant to CPLR 5602(b)(1) from a decision and judgment of this court dated December 11, 2007, which denied a petition and dismissed a proceeding pursuant to CPLR article 78, in the nature of prohibition to bar his retrial in an action entitled People v DeFilippo, pending in the Supreme Court, Richmond County, under Indictment No. 295/04, and to stay all further proceedings, including the retrial, pending hearing and determination of the appeal to the Court of Appeals.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the branch of the motion which is for leave to appeal to the Court of Appeals is granted, and the following question is certified to the Court of Appeals: Was the decision and judgment of this court dated December 11, 2007, properly made?; and it is further,

ORDERED that the branch of the motion which is to stay all further proceedings, including the retrial, pending hearing and determination of the appeal to the Court of Appeals is denied without prejudice to seeking this relief in the Court of Appeals.

Questions of law have arisen, which, in our opinion, ought to be reviewed by the Court of Appeals (see CPLR 5713).

RIVERA, J.P., SPOLZINO, FLORIO and BALKIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court