
    In the Matter of Christian Amorocho, Petitioner, v John B. LaTella, as Judge of the Supreme Court of the State of New York, et al., Respondents.
    [751 NYS2d 394]
   Proceeding pursuant to CPLR article 78 in the nature of prohibition to bar the retrial of the petitioner in an underlying criminal action entitled People v Amorocho, pending in the Supreme Court, Queens County, under Indictment No. 225/02, and application for poor person relief.

Upon the papers filed in support of the proceeding and the application and the papers filed in opposition thereto, it is

Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied; and it is further,

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

We find unpersuasive the petitioner’s contention that his conviction of assault in the second degree would be fatally inconsistent with his acquittal at a previous trial of criminal possession of a weapon in the fourth degree (see CPL 310.70; People v Preston, 255 AD2d 530; People v Cabrera, 221 AD2d 461).

The petitioner’s remaining contentions are without merit. Altman, J.P., Smith, H. Miller and Adams, JJ., concur.  