Opinion
2014-11-19
In the Matter of Josh BROWN, petitioner, v. Barry KRON, etc., respondent.
Josh Brown, Malone, N.Y., petitioner pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondent.
Josh Brown, Malone, N.Y., petitioner pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit Justice Barry Kron, an Acting Justice of the Supreme Court, Queens County, from hearing and determining the petitioner's motion to vacate a judgment of conviction rendered against him on August 18, 2005, in the Supreme Court, Queens County, in a criminal action entitled People v. Brown, commenced in that court under Indictment No. 2349/04, and application by the petitioner for poor person relief.
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 so much of the petition as seeks to prohibit the respondent from hearing and determining the petitioner's motion to vacate the judgment of conviction is denied as academic, and the petition is otherwise denied and the proceeding is dismissed, without costs or disbursements.
So much of the instant proceeding as seeks to prohibit the respondent from hearing and determining the petitioner's motion to vacate a judgment of conviction rendered against him on August 18, 2005, has been rendered academic in light of the order of the respondent dated September 9, 2014, deciding the petitioner's motion.
As to the remainder of the petition, “[b]ecause of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers” ( Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297; see Matter of Rush v. Mordue, 68 N.Y.2d 348, 352, 509 N.Y.S.2d 493, 502 N.E.2d 170). The petitioner has failed to demonstrate a clear legal right to the relief sought.