Matter of Marlon Ashley v Ronald J. McGaw

Matter of Ashley v McGaw 2006 NY Slip Op 02883 [28 AD3d 654] April 18, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

In the Matter of Marlon Ashley, Appellant,
v
Ronald J. McGaw, as City Court Judge of the Poughkeepsie City Court, et al., Respondents.

—[*1]In a proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondent Ronald J. McGaw, a Judge of the City Court, City of Poughkeepsie, from proceeding with the trial of a criminal action entitled People v Marlon Ashley, pending in the City Court, City of Poughkeepsie, under docket No. 02-27342, and to prohibit the respondent William V. Grady, District Attorney of Dutchess County, from prosecuting the action, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Dolan, J.), dated May 23, 2005, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, 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]; Matter of Blumen v McGann, 18 AD3d 870, 870 [2005]). The petitioner has failed to demonstrate a clear legal right to the relief sought.[*2]

Motion by the appellant on an appeal from a judgment of the Supreme Court, Dutchess County, dated May 23, 2005, to stay the trial in an action entitled People v Marlon Ashley, pending in the City Court, City of Poughkeepsie, under docket No. 02-27342 pending the hearing and determination of the appeal.

Upon the papers filed in support of the motion and no papers having been filed in opposition or relation thereto, it is,

Ordered that the motion is denied as academic in light of the determination of the appeal. Crane, J.P., Goldstein, Rivera and Dillon, JJ., concur.