Matter of Randall v McGann

Matter of Randall v McGann 2010 NY Slip Op 06524 [76 AD3d 713] August 31, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 29, 2010

In the Matter of Percy Randall, Petitioner,
v
Robert C. McGann, Respondent. Richard A. Brown, Nonparty.

—[*1] Mahler & Harris, P.C., Kew Gardens, N.Y. (Stephen R. Mahler of counsel), for petitioner. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano

and Brooke E. Barnes of counsel), nonparty pro se.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondent, Robert C. McGann, an Acting Justice of the Supreme Court, from presiding over a trial in a criminal action entitled People v Randall, pending in the Supreme Court, Queens County, under indictment No. 2864/09.

Adjudged that the petition is denied and the proceeding is dismissed on the merits, 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's underlying motion to dismiss the indictment was determined in an order of the Supreme Court, Queens County, dated June 16, 2010. The petitioner's remedy is to raise his claims on direct appeal from any judgment of conviction which may ultimately be rendered (see generally Matter of Billings v Erlbaum, 306 AD2d 526 [2003]).

Accordingly, the petitioner failed to demonstrate a clear legal right to the relief sought. Covello, J.P., Miller, Dickerson and Austin, JJ., concur.