| 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 ยง 431. |
| As corrected through Wednesday, November 12, 2008 |
| 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.
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.