Moss v. Vaughn (164 A.D.2d 958, 1990)

Proceeding pursuant to CPLR article 78 to prohibit further prosecution of the petitioner under Suffolk County indictment No. 818/89 on the ground that a trial is barred pursuant to CPL 40.20 by reason of a previous prosecution, and would violate the double jeopardy provisions of the State and Federal Constitutions.

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

Dismissal of the indictment on statutory, as well as constitutional, double jeopardy grounds (see, CPL 40.20; NY Const, art I, § 6; US Const 5th, 14th Amends) is not warranted here since at the time it accepted a plea of guilty with respect to the misdemeanor information, the District Court of Suffolk County had been divested of jurisdiction over the matter by the indictment of the petitioner on felony narcotics charges (see, People v Carter, 134 Misc 2d 878, affd 155 AD2d 608; CPL 170.20 [1]). Mangano, P. J., Bracken, Rubin and Rosenblatt, JJ., concur.