Opinion
2003-04636
July 7, 2003.
Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent, a Justice of the Supreme Court, Suffolk County, from commencing a trial in an underlying criminal action entitled People v. Garcia, pending under Indictment No. 1791-02. Motion by the petitioner for leave to prosecute the appeal as a poor person and to stay the trial pending hearing and determination of the proceeding.
Christopher J. Cassar, P.C., Huntington, N.Y., for petitioner.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Steven A. Hovani of counsel), nonparty pro se.
Before: SANDRA J. FEUERSTEIN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, REINALDO E. RIVERA, JJ.
DECISION, ORDER, JUDGMENT
ORDERED that the branch of the motion which is for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the motion 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.
FEUERSTEIN, J.P., KRAUSMAN, GOLDSTEIN and RIVERA, JJ., concur.