Peter v. King , 81 A.D.2d 672 ( 1981 )

— Proceeding pursuant to CPLR article 78 to prohibit respondents from prosecuting petitioner for murder in the second degree under Indictment No. 74/80, filed by the Grand Jury of Dutchess County. Proceeding dismissed on the merits, without costs or disbursements. On November 5, 1978 petitioner allegedly shot the victim, his wife, who was rendered comatose. He was indicted, inter alia, for attempted murder in the second degree, and, on July 30, 1979, pleaded guilty to assault in the first degree in satisfaction of that indictment. Several days later, on August 4, 1979, the victim died, allegedly as a result of the injuries inflicted by petitioner. On November 13, 1979 petitioner was sentenced to an indeterminate term of imprisonment of 5 to 15 years upon his conviction of assault in the first degree. Thereafter, on May 6, 1980, the Grand Jury of Dutchess County filed an indictment charging petitioner with murder in the second degree. Petitioner contends that his prosecution for murder in the second degree does not comply with the standards set forth in CPL 40.20 (subd 2, par [d]) and constitutional proscriptions against double jeopardy. However, since the victim died subsequent to petitioner’s prosecution for assault (see CPL 40.30, subd 1, par [a]) the prosecution for murder in the second degree is authorized by CPL 40.20 (subd 2, par [d]). Nor does the prosecution for murder in the second degree, under these circumstances, violate petitioner’s constitutional rights (see Jeffers v United States, 432 US 137, 151; Diaz v United States, 223 US 442, 448-449). Petitioner also contends that he has been deprived of his right to a speedy trial. However, such a claim is not generally cognizable in a proceeding pursuant to CPLR article 78 (see Matter of Lopez v Justices of the Supreme Ct. of N.Y. County, 36 NY2d 949). Therefore, the petition must be dismissed. Mollen, P.J., Hopkins, Damiani and Titone, JJ., concur.