IN RE SCRANTON

MEMORANDUM. The judgments of the Appellate Division should be affirmed, without costs. A claim of a denial of a speedy trial is not cognizable in an application pursuant to CPLR article 78 for a judgment prohibiting a District Attorney and the Justices of the Supreme Court from proceeding on an indictment. ( Matter of Watts v. Supreme Ct. of State of N.Y., 28 N.Y.2d 714; Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 437; Matter of Blake v. Hogan, 25 N.Y.2d 747.) While a double jeopardy claim may be raised in a prohibition proceeding ( Matter of State of New York v. King, 36 N.Y.2d 59, at p. 64; Matter of Kraemer v. County Ct. of Suffolk County, 6 N.Y.2d 363), this petition should nevertheless be denied. The petitioner was not placed in jeopardy despite the fact that three jurors had been sworn before a mistrial was declared. (CPL 40.30, subd. 1, par. [b].)

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.

Judgments affirmed.