Opinion
2002-06799
October 1, 2002.
Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent James P. Griffin from proceeding in an underlying criminal action entitled People v. Barton, pending in the Supreme Court, Queens County, under Queens County Indictment No. 3748/2001, and application for poor person relief.
Larry Barton, East Elmhurst, N.Y., petitioner pro se.
Eliot Spitzer, Attorney-General, New York, N.Y. (Charles F. Sanders of counsel), for respondent James P. Griffin.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and James A. Dolan of counsel), respondent pro se.
Before: SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, WILLIAM D. FRIEDMANN, THOMAS A. ADAMS, JJ.
Upon the papers filed in support of the proceeding and the application, and the papers filed in opposition thereto, it is
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 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.
FEUERSTEIN, J.P., SMITH, FRIEDMANN and ADAMS, JJ., concur.