In the Matter of Eric Smith v. Richard A. Brown

Chief Judge Lippman

(concurring in result). I cannot agree with the majority that the petition is untimely. I concur in the result as I also believe that the Appellate Division order should be reversed and the petition dismissed, but I reach that result on the merits.

The majority implicitly rejects respondent’s contention that the statute of limitations starts to run on the date the trial court declares a mistrial. Presumably they do so on the basis that the declaration of mistrial is not a “final and binding” decision to retry the defendant in the criminal case (CPLR 217 [1]; Matter of…