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.