Opinion
July 2, 2001.
Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from prosecuting the petitioner in a criminal action entitled People v. Daniels, pending under Kings County Indictment No. 7790/2000, until the Grand Jury has convened, and application for leave to prosecute the proceeding as a poor person.
Tyrese Daniels, E. Elmhurst, N.Y., petitioner pro se.
Eliot Spitzer, Attorney-General, New York, N.Y. (Charles F. Sanders of counsel), for respondent Louis J. Marrero.
Before: DAVID S. RITTER, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.
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 as academic; and it is further,
ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.
"Because 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; see, Matter of Rush v. Mordue, 68 N.Y.2d 348, 352). The petitioner has failed to demonstrate a clear legal right to the relief sought.
RITTER, J.P., McGINITY, LUCIANO and FEUERSTEIN, JJ., concur.