Matter of Foote v Kralik

Matter of Matter of Foote v Kralik 2012 NY Slip Op 08308 Decided on December 5, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 5, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
CHERYL E. CHAMBERS
PLUMMER E. LOTT, JJ.
2011-09984 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Adrian Foote, petitioner,

v

James Kralik, etc., et al., respondents.




Adrian Foote, New City, N.Y., petitioner pro se.
Eric T. Schneiderman, Attorney General, New York, N.Y.
(Charles F. Sanders of counsel), for
respondent William Nelson.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent James Kralik, the Sheriff of Rockland County, to release the petitioner from incarceration, and in the nature of prohibition to prohibit the respondent Thomas P. Zugibe, the District Attorney of Rockland County, from prosecuting a criminal action entitled People v Foote, pending in the County Court, Rockland County, under Indictment No. 2011-0002, and to prohibit the respondent William Nelson, a Judge of the County Court, Rockland County, from presiding over that criminal action, 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 branch of the petition which is in the nature of mandamus to compel the respondent James Kralik, the Sheriff of Rockland County, to release the petitioner from incarceration is denied as academic, those branches of the petition which are in the nature of prohibition to prohibit the respondent Thomas P. Zugibe, the District Attorney of Rockland County, from prosecuting a criminal action entitled People v Foote, pending in the County Court, Rockland County, under Indictment No. 2011-0002, and to prohibit the respondent William Nelson, a Judge of the County Court, Rockland County, from presiding over that criminal action are denied on the merits, and the proceeding is dismissed, without costs or disbursements.

Since the petitioner has been deported to Jamaica, and is no longer in the custody of the respondent James Kralik, the Sheriff of Rockland County, that branch of the petition which is in the nature of mandamus to compel Kralik to release the petitioner from incarceration must be denied as academic.

"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; see Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioner failed to establish a clear legal right to relief in the nature of prohibition.
MASTRO, J.P., RIVERA, CHAMBERS and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court