
    The People of the State of New York ex rel. Richard R. Scott, Jr., Appellant, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, Respondent.
    [635 NYS2d 567]
   —Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed, without a hearing, the petition seeking a writ of habeas corpus. We previously rejected the contention of relator that double jeopardy attached to bar his retrial (Matter of Scott v D’Amico, 170 AD2d 1040, 1041, lv dismissed 77 NY2d 987). The court erred, however, in stating that "relator’s remedy would be to seek further review under article 440 in the trial court”. (Appeal from Judgment of Supreme Court, Wyoming County, Dadd, J.—Habeas Corpus.) Present—Pine, J. P., Fallon, Callahan, Davis and Boehm, JJ.  