Morgenthau v. Yates

—The application pursuant to CPLR article 78 in the nature of prohibition and mandamus seeking, inter alia, retrial of a count of an indictment, unanimously denied, and the petition dismissed, without costs.

Petitioner essentially seeks review of the trial court’s order entered September 16, 1998, which dismissed a count upon which the jury in the underlying trial failed to reach a verdict. Such an order is appealable by the People (CPL 450.20 [1]) and, as such, is not the proper subject of an article 78 proceeding.

If we were to reach the merits, however, we would conclude *84that the trial…