Opinion
2002-00017
October 1, 2002.
On the court's own motion, it is
ORDERED that its decision and order on motion dated August 23, 2002, in the above-entitled matter is recalled and vacated and the following is substituted therefor:
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, NANCY E. SMITH, REINALDO E. RIVERA, JJ.
Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit further proceedings in a case entitled People v. McGibboney pending in the Supreme Court, Kings County, under Indictment No. 6746/01, and application for poor person relief.
ORDERED that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8002(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.
ALTMAN, J.P., FLORIO, SMITH and RIVERA, JJ., concur.