| IN THE MATTER OF ROBIE J. DRAKE V HONORABLE RICHARD C. KLOCH, SR., AN ACTING JUSTICE OF THE SUPREME COURT OF THE STATE |
| Motion No: OP 09-00629 |
| Slip Opinion No: 2009 NYSlipOp 69151(U) |
| Decided on April 7, 2009 |
| Appellate Division, Fourth Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
PRESENT: SCUDDER, P. J., HURLBUTT, MARTOCHE, SMITH, AND GORSKI, JJ.
DOCKET NO. OP 09-00629
| IN THE MATTER OF ROBIE J. DRAKE, PETITIONER, V HONORABLE
RICHARD C. KLOCH, SR., AN ACTING JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK, NIAGARA COUNTY, AND THE PEOPLE OF THE STATE
OF NEW YORK, RESPONDENTS-RESPONDENTS. |
Petitioner having moved, upon the return of an order to show cause granted by the Honorable Jerome C. Gorski on March 23, 2009, for a stay of the prosecution of Indictment No. 7205 pending the hearing and determination of this CPLR article 78 proceeding,
Now, upon reading and filing the affidavit of David J. Farrugia sworn to March 17, 2009, the petition of Robie J. Drake verified March 17, 2009, said show cause order with proof of service thereof, and due deliberation having been had thereon,
It is hereby ORDERED that the motion be, and the same hereby is, denied, and the proceeding is dismissed.
Memorandum: Petitioner has not demonstrated that the alleged prosecutorial misconduct in his case was conducted in a deliberate attempt to provoke him to move for a mistrial (cf. Matter of DeFilippo v Rooney, 11 NY3d 775, 776 [2008]; Matter of Gorghan v DeAngelis, 7 NY3d 470, 473-474 [2006]). Petitioner was therefore not denied the right to have his trial completed by a particular tribunal (see Matter of DeCanzio v Kennedy, 88 AD2d 770, 771 [1982], lv denied 57 NY2d 601 [1982]).
Entered: April 7, 2009
Patricia L. Morgan, Deputy Clerk