Matter of Blake Wingate v Mark H. Spires

Matter of Wingate v Spires 2005 NY Slip Op 09315 [24 AD3d 459] December 5, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

In the Matter of Blake Wingate, Petitioner,
v
Mark H. Spires, as Justice of the Supreme Court of the State of New York, Respondent.

—[*1]Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Mark H. Spires, a Justice of the Supreme Court, Queens County, from enforcing a judgment rendered July 26, 2005, in a criminal action entitled People v Wingate, commenced in that court under indictment No. 941/04, and application by the petitioner for poor person relief.

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 NY2d 564, 569 [1988]; see Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Florio, J.P., Krausman, Skelos and Covello, JJ., concur.