Opinion
January 31, 2000
Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to enjoin further prosecution of a criminal proceeding entitled People v. McFadden, pending in Supreme Court, Queens County, under Indictment No. 10875/99, and motion for leave to prosecute the proceeding as a poor person.
Brandon McFadden, E. Elmhurst, N.Y., petitioner pro se.
Eliot L. Spitzer, Attorney-General, New York, N.Y. (Carolyn Cairns Olson of counsel), for respondent Joseph Grosso.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Sandra P. Burgos of counsel), respondent pro se.
Motion by the respondent Joseph A. Grosso to dismiss the proceeding.
DANIEL W. JOY, J.P., MYRIAM J. ALTMAN, GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION, ORDER, JUDGMENT
ORDERED that the motion for leave to prosecute the proceeding as a poor person is granted; and it is further,
ORDERED that the motion of the respondent Joseph A. Grosso to dismiss the proceeding is granted; 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.
JOY, J.P., ALTMAN, GOLDSTEIN, and SCHMIDT, JJ., concur.