From Casetext: Smarter Legal Research

Matter of Borrell v. Hanophy

Appellate Division of the Supreme Court of New York, Second Department
Jan 26, 1998
246 A.D.2d 647 (N.Y. App. Div. 1998)

Opinion

January 26, 1998


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

The extraordinary remedy of 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 ( see, Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569; Matter of Rush v. Mordue, 68 N.Y.2d 348, 354). The petitioner has failed to demonstrate a clear legal right to prohibit the respondents from proceeding to his trial under Indictment No. 2580/95 on the ground that the Justice who arraigned him was a witness to the crime alleged in the indictment. There was no statutory ground for disqualification of the arraignment Justice, and thus recusal was a matter solely within the discretion and personal conscience of the arraignment Justice ( see, Judiciary Law § 14; People v. Moreno, 70 N.Y.2d 403; People v. Judkins, 210 A.D.2d 523). In addition, any alleged harm to the petitioner may be adequately corrected on appeal from any judgment of conviction ( see, Matter of Rush v. Mordue, supra).

Bracken, J.P., Pizzuto, Altman and Krausman, JJ., concur.


Summaries of

Matter of Borrell v. Hanophy

Appellate Division of the Supreme Court of New York, Second Department
Jan 26, 1998
246 A.D.2d 647 (N.Y. App. Div. 1998)
Case details for

Matter of Borrell v. Hanophy

Case Details

Full title:In the Matter of JULIO BORRELL, Petitioner, v. ROBERT J. HANOPHY et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 26, 1998

Citations

246 A.D.2d 647 (N.Y. App. Div. 1998)
667 N.Y.S.2d 312

Citing Cases

Zugibe v. Bartlett

Upon further reflection, however, Acting Justice Bartlett concluded that recusal was unwarranted and that she…

In the Matter of Minkoff v. County of Nassau

The issues raised on appeal from the order are brought up for review and have been considered on the appeal…