After a Mistrial in a Criminal Matter, a Prohibition Action Seeking to Bar Retrial on Double Jeopardy Grounds Must Be Brought Within Four Months of a Definitive Demonstration of the People’s Intent to Re-Prosecute

The Court of Appeals, over a concurring opinion which disagreed with the majority's grounds, determined that the four-month statute of limitations was not tolled under a “continuing harm” theory and the prohibition action was time-barred.  The trial court had declared a mistrial because, during deliberations, one of the 12 jurors was removed for misconduct.  It was clear shortly after the mistrial that the prosecution was preparing for a second trial. Two years after the mistrial was declared, the defendant brought a prohibition action seeking to prohibit the second trial on Double Jeopardy grounds:

A four-month limitations period applies to CPLR article 78 prohibition proceedings (see CPLR 217 [1]…) and the petition here was filed more than two years after the mistrial was declared. Although a tolling period for continuing harm has been recognized … and would be adopted by our concurring colleague, we reject its application in this situation. Once the People definitively demonstrated their intent to re-prosecute and the court began to calendar the case for eventual trial, Smith was obligated to initiate his Double Jeopardy-based article 78 challenge within the statutorily prescribed time frame. On the facts of this case, that period expired well before prohibition was sought, and therefore, the proceeding was barred by the statute of limitations. Matter of Smith v Brown, 2014 NY Slip OP 07090, CtApp 10-21-14