Matter of Nelson v Brennan

Matter of Nelson v Brennan 2012 NY Slip Op 08744 Decided on December 19, 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 19, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
RUTH C. BALKIN
CHERYL E. CHAMBERS
ROBERT J. MILLER, JJ.
2011-10269 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Aaron Nelson, petitioner,

v

Michael Brennan, etc., et al., respondents.




Aaron Nelson, Gowanda, N.Y., petitioner pro se.
Eric T. Schneiderman, Attorney General, New York, N.Y.
(Michael J. Keane of counsel), for
respondents.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondents from enforcing a resentence of the Supreme Court, Kings County, imposed December 12, 2008, in a criminal action entitled People v Nelson, under Kings County Indictment No. 6891/01, 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 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; see Matter of Rush v Mordue, 68 NY2d 348, 352).

The petitioner has failed to demonstrate a clear legal right to the relief sought.
DILLON, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court